Opinion
C.A. No. 02A-09-005.
Submitted: January 30, 2003.
Decided: April 7, 2003.
Upon Appeal from an Order of the Unemployment Insurance Appeal Board.
AFFIRMED.
ORDER
This 7th day of April 2003, upon consideration of the appeal of John B. Sullivan, III from the decision of the Unemployment Insurance Appeal Board (the "Board"), dated September 6, 2002, denying Mr. Sullivan's application for benefits, it appears to the Court that:
1. Mr. Sullivan began his employment as a HVAC technician for Esquire Heating and Plumbing ("Esquire") on January 15, 2001. The Vice President of Esquire, Rob Briccotto, hired Mr. Sullivan with a hourly wage of $17.90, which was the full journeyman wage negotiated by Local Union 74 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada ("the Union"). At that time, Mr. Sullivan was a probationary journeyman with the Union. A month later, Mr. Briccotto conducted an evaluation of Mr. Sullivan's work and determined that his knowledge and skills in oil burner service, gas service, and heat pump service were below the standard of a full journeyman HVAC technician. Rather than terminate Mr. Sullivan, Mr. Briccotto contacted the Business Manager of the Union, John Czerwinski, to request permission to lower Mr. Sullivan's wages to $15.00 per hour, which was the "installer" rate. At the Referee and Board hearings, there was some dispute about whether Mr. Czerwinski acceded to the lower wage, but the Board determined that he did agree.
2. Mr. Sullivan signed a contract with Mr. Briccotto ("the Esquire contract") in which he agreed that his wages would be reduced to $15.00 per hour (to be increased every six months) with the understanding that Mr. Sullivan would receive full pay after he completed further training. On March 12, 2001, Mr. Sullivan became a full member of the Union, but he continued to receive reduced pay in accordance with the Esquire contract. Mr. Sullivan never attended additional training courses.
3. In April 2002, Mr. Sullivan discovered that the Union bylaws prohibited a member of the union from working for less than the contractual rate of $17.90; he then requested an increase in pay and back wages. Mr. Briccotto refused. On April 19, 2002, Mr. Sullivan voluntarily terminated his employment with Esquire.
4. Mr. Sullivan filed a claim for unemployment insurance benefits on April 14, 2002. He asserted that he quit for "good cause" because the Esquire contract violated the Union rules. The Claims Deputy denied his request, stating that Mr. Sullivan quit based on his "dissatisfaction with agreed upon terms" of his employment, which is not "good cause." The Appeals Referee agreed, finding that Mr. Sullivan did not meet his burden of showing "good cause" for the voluntary termination of his employment.
Although the records indicate that April 14th is the date of the claim, the Court notes that this date is most likely a clerical error because Mr. Sullivan did not terminate his employment until April 19th.
D.I. 7, at 17.
5. The Board held two hearings for Sullivan's claim. At the first hearing, Mr. Sullivan claimed that Mr. Czerwinski did not approve the Esquire contract, but Mr. Czerwinski was not present to testify. The Board postponed the hearing to subpoena the testimony of Mr. Czerwinski. At the second hearing, Mr. Czerwinski testified that he agreed to the Esquire contract. The Board concluded that the Esquire contract did not violate Union bylaws for several reasons: 1) the Union agreed to Esquire's new wage agreement; 2) Mr. Sullivan was only a probationary journeyman at the time of the agreement; 3) Mr. Sullivan provided insufficient evidence that the terms of the Esquire contract actually violated Union rules; and 4) Mr. Sullivan had worked under this agreement for 14 months prior to his voluntary termination. The Board then rendered a decision denying Mr. Sullivan's benefits.
6. The Court's standard of review of the Board's decision is limited. The Court must evaluate whether the Board's factual findings are supported by substantial evidence and whether the Board made any legal error in reaching its conclusions. Substantial evidence is "relevant evidence as a reasonable mind might accept as adequate to support a conclusion." The Court cannot decide facts or assess the credibility of witnesses.
Diamond Materials v. Manganaro, 1999 Del. Super. LEXIS 274, at *5.
Farley v. Flagship Restaurant, 1995 WL 339066, at *2 (Del.Super.).
Coleman v. Dep't of Labor, 288 A.2d 285, 287 (Del.Super. 1972); Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965).
7. On appeal, Mr. Sullivan no longer contends that Mr. Czerwinski did not agree to the Esquire contract. Instead, he argues that the Board erroneously failed to address Mr. Czerwinski's authority to approve the Esquire contract before determining whether Mr. Czerwinski agreed to the contract. Esquire counters by arguing that the record supports the finding that Mr. Czerwinski had the authority to bind the Union to the Esquire contract. Alternatively, Esquire asserts that Mr. Sullivan did not have "good cause" to quit because he failed to exhaust administrative remedies through the Union before his voluntary termination. The Board also submitted an answering brief, arguing that Mr. Sullivan never raised the issue of Mr. Czerwinski's authority at any stage of the proceedings, thus precluding the Court's consideration of this issue on appeal.
Mr. Sullivan also argues that the Esquire contract was not enacted in accordance with the procedure in Article XVII of the Union bylaws (requiring the appointment of a Negotiating Committee and ratification by a secret vote). The Court summarily rejects this contention because Article XVII by its terms clearly applies only to the collective bargaining agreement.
8. To be eligible for unemployment insurance benefits, Mr. Sullivan must meet the requirements of Section 3315(1), Title 19 of the Delaware Code. Section 3315(1) provides that a claimant will not be disqualified from benefits if the claimant demonstrates that he voluntarily terminated his employment with "good cause." The claimant carries the burden of proof. "Good cause may exist where there is a substantial reduction in wages or hours of employment, or a substantial deviation from the original employment agreement."
See DEL. CODE ANN. tit. 19, § 3315(1) (1995) ("An individual shall be disqualified for benefits . . . [f]or the week in which the individual left work voluntarily without good cause attributable to such work. . . .").
Longobardi v. Unemployment Ins. Appeal Bd., 287 A.2d 690, 692 (Del.Super. 1971).
Scott v. Clausen, 2002 Del. Super. LEXIS 131, *6.
9. Mr. Sullivan asserts that the Board failed to address the threshold issue of whether the Union authorized Mr. Czerwinski to approve the Esquire contract. He maintains that he attempted to raise this issue to the Board, pointing to an incomprehensible question in the transcript from him to Mr. Czerwinski. The Court cannot conclude on this record that Mr. Sullivan fairly raised this issue before the Board. The Court is compelled to observe that it seems unlikely that Mr. Sullivan intended to or actually raised this issue in view of the fact that his position at the first Board hearing and at the outset of the second Board hearing was that Mr. Czerwinski, as a representative of the Union, did not approve the Esquire contract. In fact, based on Mr. Sullivan's position in this regard, the Board postponed the first hearing to subpoena Mr. Czerwinski to appear before the Board so that he could explain the Union's role in the creation of the Esquire contract. Mr. Sullivan initially took the position in the proceedings below that Mr. Czerwinski possessed the authority to approve the Esquire contract, and it is disingenuous for Mr. Sullivan to contend on appeal that the Board ignored this issue.
Mr. Sullivan asked Mr. Czerwinski:"Is this mean the body of the board?" A representative of the Board replied by stating: "No again that issue is not before us. That's a representation issue." (D.I. 7, at 98-99).
See Wilmington Trust Co. v. Conner, 415 A.2d 773, 781 (Del. 1980) (stating general rule that issues not fairly raised in the trial court may not be heard on appeal and appellant had burden to show that the issue was raised in the trial court below by producing that portion of the record).
10. In any event, the Court finds that there is substantial evidence in the record to support the Board's implicit determination that Mr. Czerwinski had the authority to bind the Union. Mr. Czerwinski held the position of "Business Manager" in the Union, and Mr. Briccotto testified that Mr. Czerwinski regularly interacted with the employers on behalf of the Union. Additionally, Mr. Sullivan named Mr. Czerwinski as his union representative at the first Board hearing. This testimony provides substantial evidence to support the Board's implicit finding of Mr. Czerwinski's authority to represent the Union.
See Gardiner v. Delaware Home Care, Inc., 2000 Del. Super. LEXIS 275, at *14 ("Where issues lay beneath the surface of matters raised below, but do not percolate to the top due to the pro se status of the litigants, they properly may be considered by the appellate court.").
D.I. 7, at 88.
Id. at 79.
Id. at 68.
11. Even if Mr. Czerwinski did not have the authority to accede to the Esquire contract, as Mr. Sullivan contends, the Board decided that Mr. Sullivan did not carry his burden of proving "good cause" for other reasons. Most significantly, the Board found insufficient evidence to support Mr. Sullivan's claim that the terms of the Esquire contract actually conflicted with Union bylaws. This conclusion likewise is supported by substantial evidence and provides a viable basis to support the Board's ultimate finding that Mr. Sullivan did not demonstrate "good cause." At the hearings before the Referee and the Board, Mr. Sullivan merely presented a copy of the Union bylaws and offered his own conclusory opinion that the Esquire contract breached them. Article XV of the Union bylaws states the general rule that "[n]o member of this Local Union shall work for less than the regular rate of wages decided upon by this Local Union." This language does not shed light on Mr. Sullivan's circumstances, however, because it does not address the situation where a probationary member enters a separate contract for lower wages pending completion of requisite training. In addition, Mr. Briccotto testified at the Referee's hearing that the Union never informed him that he was in violation of Union bylaws. The Board reasonably concluded that Mr. Sullivan produced insufficient evidence to demonstrate that the terms of the Esquire contract actually conflicted with or violated the Union rules.
Id. at 60.
Id. at 53.
12. Based on the foregoing, the Board's denial of Mr. Sullivan's unemployment insurance benefits is AFFIRMED.
IT IS SO ORDERED.