Toland v. Schneider

PRATHER, District Judge

(dissenting).

I concur in the basic proposition that the claimant had the burden of proving there was good cause to voluntarily terminate his employment. I further concur that an employee’s decision to voluntarily terminate his employment must be reasonable and substantial and there must be some compulsion produced by necessitous circumstances and that the standard is one of reasonableness as applied to an average per*559son. I cannot concur that those rules have been properly applied in this case.

In applying the foregoing rules it is critical to determine whether or not To-land’s gross receipts were actually $295.00 or only $205.00. The record is undisputed that the first 2i/¿ days of work were performed at the rate of $45.00 per day. Thus, the existence or non-existence of a contract for that amount of pay becomes immaterial. The record is likewise undisputed that said contract was terminated and that the claimant thereafter accepted employment at the rate of $2.60 per thousand board feet. Therefore, in testing whether or not he was justified in quitting it is only the last 6i/£ days out of the total 9 days worked that should be considered. Furthermore, the record is undisputed that of the gross amount of money received by Toland one-fourth thereof was attributable to rental for his chain saw. Therefore, that amount should be deducted from his gross receipts to arrive at what his actual wages were for his labor. Since claimant’s employment required that he live some seventy miles from his residence in St. Maries, Idaho, his cost of transportation and expenses for living away from home should be deducted in determining whether or not he was being paid an adequate wage and in considering whether or not there were necessitous circumstances that justified his voluntary quitting. When this is done we have a calculation that appears as follows:

$295.00 $205.00
Total pay — 9 days $295.00 $205.00
less 2.5 days @ $45/day 112.50 112.50
$183.50 $ 93.50
less 1/4 tor saw rental 45.88 23.37
Gross wages for 6.5 days
on per M basis 137.62 $ 70.13
Average wage per day on per
Wl basis $ 21.17 $ 10.79
less cabin rent/day — 5 day basis 1.67 1,67
$19.50 $ 9T2
less food/day 4.0Q 4.00
$15.50 $ 5.12
less heat/day — 5 day basis 1.78 1.78
$ 13.72 $ 3.34
less travel — 140 miles
10|i/mlle 2.80 2.80
Net Wage per day $ 10,92 $ .54

The Court should declare as a matter of law that a net earning of 54{5 per day creates such a necessitous circumstance that any reasonable average person would be justified to voluntarily quit such employment.

The Industrial Accident Board made a Finding of Fact that claimant had earned a total of $295.00 during the time in question. This Finding of Fact cannot be sustained by the record made. This is not a matter of competent although conflicting evidence upon which the Board as the trier of facts is to make a decision. As a matter of law the only evidence before the Board was that claimant received a total of $205.00. This comes about in the following manner: Before the appeals examiner when asked how much he had made altogether between December 16th and December 29th the claimant answered $295.00. When the matter came on for hearing before the Industrial Accident Board (a hearing de novo pursuant to I.C. 72-1368(g)) the claimant was asked if he had a copy of the record before the appeals examiner and the following took place:

Mr. Toland was present but not represented by counsel. A member of the Industrial Accident Board asked Mr. To-land if there was anything he wished to add to the record that was already before the Board. He said there was. At this time he was placed under oath and a member of the Board asked Mr. R. La-Var Marsh, an attorney at law representing the Department of Employment, to assist Mr. Toland in presenting his case. Mr. Marsh did so. (It should be kept in mind that he was not Mr. To-land’s attorney). Under examination by Mr. Marsh the following occurred:
Q (By Mr. Marsh) You did receive a copy of the transcript of that hearing ?
A (By Mr. Toland) Yes, I did.
Q And you have read it; is that correct?
A I have read it.
Q Now, is there — let me ask you this: Is there anything in that record itself *560which is not accurate or correct that you feel needs to he corrected at this time?
A Yes, there is.
Q Please tell the Board what those matters are.
A Here’s another one there, that’s on page 7 and he had $295.00.
Q Line 22?
A Yes. That should have been $205.00 because he took the two days off of the different job altogether which he owed us and paid us then.
Q Mr. Toland, may I ask a question or two just for the record? On that same page, 7, going back up to line 15 where the question is asked, “How much did you make altogether between December 16th and December 29th?” then you answered, “$295.00.”
A That answer is wrong because it was $205.00 because he had just been talking about the other job and I got mixed up there. — •

The record is completely devoid of any testimony of the employer as to what Mr. Toland was paid during the time in question. The record is likewise completely devoid of any documentary evidence in the way of payroll checks or other payroll records as to what Mr. Toland’s payments were during the time in question. Thus, absolutely the only evidence before the Board as to the gross amount of money Mr. Toland received was his own testimony, first that it was $295.00 which at the invitation of the Board he corrected to $205.00.

I.C. 72-1368 (g) provides that the record made before the appeals examiner becomes a part of the record before the Board and goes on to provide that the Board may again hear the same witnesses, other witnesses, and may receive any other additional evidence. Thus, the situation here is exactly the same as if the claimant had first testified to a figure of $295.00 and then later realized his error and corrected the figure to $205.00. At most the prior statement before the appeals examiner would be only proof of a prior inconsistent statement. Absent some other proof in the record such prior inconsistent statement would not be sufficient upon which to base the Finding of Fact by the Board that he had earned $295.00. If a party testifies positively to a specific fact he may, of course, be impeached by proof that at another time he has made a statement inconsistent with his testimony concerning that fact. But the proof of the prior inconsistent statement alone is not proof of the fact as stated in said prior statement. The Board may have properly felt that the prior inconsistent statement so impeached Mr. Toland that his subsequent statement as to the $205.00 made in the presence of the Board was not worthy of belief. In such event then the only Finding of Fact that the Board could have made would have been that Toland had failed to prove in any way what his earnings were. But contrary to that, the Board attempted to make a specific finding that he had grossed $295.00. There is no evidence in the record to sustain that Finding of Fact. Since it is of such material importance this matter should be remanded to the Board for further proceedings to determine the claimant’s gross earnings.

I cannot concur with the majority opinion that the previous testimony of Mr. Toland before the claims examiner created conflicting evidence upon which the Board could make a Finding of Fact. The prior inconsistent statement was expressly corrected by Mr. Toland. It could be no more than a prior inconsistent statement. Prior inconsistent statements do not create conflicts in the testimony but only reflect upon the credibility of the' witness. Thus, the testimony before the Board that Mr. Toland’s gross receipts were $205.00 was uncontradicted and without any conflict in the evidence.

I cannot concur that the only standard is whether or not the wage paid the employee was below the prevailing wage paid to other workers similarly employed in the same locale. I agree that the underlying policy of the Unemployment Compensation *561legislation is to relieve the burdens of unemployment by providing compensation to persons unemployed through no fault of their own. However, in December of 1971 I.C. § 44-1502 prescribed that all employees in the State of Idaho be paid at a minimum rate of $1.40 per hour. For an eight hour day this would amount to $11.20. Even if his costs of working away from home are not considered the calculations hereinabove show that Mr. Toland was receiving less than that amount. Should not a man be considered unemployed through no fault of his own when he is being paid a wage upon which he cannot subsist and which is below the minimum wages prescribed by I.C. § 44-1502?

The claimant did establish that his rate of pay was $2.60 per thousand board feet but did fail to offer any proof as to the prevailing rate for sawing in the area during the time of year in question. Likewise, claimant submitted proof of his own expenses but failed to offer proof as to what expenses might normally be incurred in similar employment. In these regards it may be said that the claimant failea in his burden of proof. However, it seems that this is a very harsh rule to apply in the case of a poor working man representing himself before a sophisticated and highly trained Board represented by an attorney at law. It would seem more in keeping with the spirit and purpose of the Unemployment Compensation law if its experts had pointed out to the claimant what proof it was necessary for him to submit. However, when the claimant has put m sufficient proof, as he did here, that his rate of pay is below the minimum wage prescribed by I.C. § 44 — 1502 then it should be held as a matter of law that he has established a prima facie case of voluntarily quitting his employment because of necessitous circumstances.

I cannot concur with the reasoning implicit in the majority opinion that summertime earnings may be averaged with wintertime earnings to determine whether or not an employee is being paid a substandard wage. Particularly is this so when the wintertime wage falls below the prescribed minimum wage law. I.C. § 44 — 1502 requires that the prescribed minimum wage be paid to an employee at any time of the year.

Assume that claimant was being paid according to the standard or average wage scale for that type of work in that particular area at that time of the year — is he still to be denied the benefits of unemployment compensation if that prevailing wage is below the minimum wage prescribed by I.C. § 44 — 1502? I think not.

For the foregoing reasons this matter should be remanded to the Industrial Accident Board for further proceedings as to what the claimant’s gross receipts actually were and whether after deduction for his necessary expenses the remaining earnings were so low that a reasonable person would have been justified in terminating the employment voluntarily because of necessitous circumstances.