Putnamv.Dept. of Employment Security

Supreme Court of New Hampshire CheshireNov 30, 1961
103 N.H. 495 (N.H. 1961)
103 N.H. 495175 A.2d 519

No. 4940.

Argued November 7, 1961.

Decided November 30, 1961.

1. An employee who terminated her employment because she was unable to find transportation from her home to the place of employment after a fellow-employee with whom she previously traveled left the state was properly found, under the provisions of the Unemployment Compensation Law (RSA 282:4 A (supp)) and rules promulgated thereunder, to have voluntarily and without good cause left work "for a reason not attributable to the employer" and hence disqualified herself from benefits.

2. In the absence of custom, contract or other agreement under which the employer undertakes to provide transportation to its employees it is the responsibility of the employee to provide his own means of transportation to attach himself to the labor market.

Appeal to the Superior Court by the plaintiff employee from a denial by an Appeal Tribunal of the Department of Employment Security of her claim for unemployment compensation benefits. RSA 282:5 G (supp). The decision of the Appeal Tribunal was based on a determination that the plaintiff voluntarily terminated her employment for a cause not attributable to the employer. By agreement of the parties the record of the proceedings before the Appeal Tribunal and its decision thereon, together with regulation 21, constituted the record in this court. It was agreed that regulation 21 had been properly promulgated and reads as follows: "VOLUNTARY QUIT WITHOUT GOOD CAUSE. An individual shall be considered to have left his work voluntarily and without good cause if of his own choice or volition he terminates the employee-employer relationship for a reason which is not attributable to the employer." The question whether the plaintiff was entitled to unemployment compensation benefits was reserved and transferred without ruling by Grant, J.

The plaintiff resided in Jaffrey and was employed by Sylvania Electric Products, Inc. at its plant in Hillsborough a distance of approximately twenty-seven miles. Originally the plaintiff traveled to her work in her own automobile but when it became inoperable she traveled to and from work with a co-employee who also worked at the same plant. The co-employee moved to California and the plaintiff then gave notice of her intention to quit as there was no public transportation between her home and the plant and was unable to find other transportation from Jaffrey to Hillsborough.

The decision of the Appeal Tribunal in denying benefits made the following findings: "The claimant was a production worker for the employer. She was travelling to and from work twenty-seven miles each way with a fellow employee. The fellow employee discontinued her work as she was leaving for California. As a result, the claimant lost her transportation and being unable to find other means of travelling to and from work, had to discontinue her work on December 23, 1959. Transportation to and from work is the workers responsibility unless the transportation is customarily provided by the employer. It was not provided by the employer in this case. The reason for the claimant's unemployment was not for a cause attributable to the employer. The leaving was voluntary and disqualifying."

William D. Tribble and David J. KillKelley (Mr. KillKelley orally), for the plaintiff.

James M. Riley, Jr. and Edward F. Smith (Mr. Riley orally), for the defendant Department of Employment Security.

Sulloway, Hollis, Godfrey Soden (Mr. Godfrey orally), for the defendant Sylvania Electric Products, Inc.

The issue in this case is whether the Department of Employment Security was justified in ruling that the plaintiff employee was disqualified to receive unemployment compensation benefits because she voluntarily left her employment due to lack of transportation from her home to her place of employment. The employee emphasizes that she left her employment in good faith and without fault on her part, and therefore her termination of employment was in effect involuntary rather than voluntary. This argument may have merit in theory and has been approved under the provisions of some unemployment compensation acts. Kempfer, Disqualifications for Voluntary Leaving and Misconduct, 55 Yale L. J. 147, 155 (1945). However, we are necessarily limited in our review of this decision by the provisions of the Unemployment Compensation Law of this state and the regulations promulgated thereunder which are more strict than exist in other jurisdictions.

RSA 282:4 A (supp) provides that an employee is disqualified for benefits for a stated period if he "has left his work voluntarily without good cause in accordance with the rules and regulations of the director." If the statute merely provided that the disqualification was limited to the situation where the employee left her work voluntarily without good cause she might well be entitled to prevail in this situation. See Mass. G. L. Ann. ch. 151A, s. 25(e), as amended by Laws 1958, c. 677, which changed the phrase "without good cause attributable to the employing unit" to "without good cause." See 5 Annual Survey of Mass. Law 166, 167 (1958). But as was pointed out in Nashua Corporation v. Brown, 99 N.H. 205, the regulation is an integral part of the statute and restricts the scope of the statute. The regulation by its terms states that a "voluntary quit" without good cause exists when the employment is terminated for a reason "which is not attributable to the employer." Nashua Corporation v. Brown, supra, 207.

The loss of the plaintiff employee's transportation in this case may be considered a good personal cause for leaving but it cannot be considered a cause that is connected with or attributable to the employer. Kontner v. Unemployment Comp. Bd. of Review, 148 Ohio St. 614; Teple, Disqualification: Discharge for Misconduct and Voluntary Quit, 10 Ohio St. L. J. 191, 204 (1949). In the absence of contract, custom or a collective bargaining agreement imposing an obligation of transportation on the employer, transportation is usually considered a problem of the employee. It is his responsibility in order to make himself attached to the labor market. Copeland v. Oklahoma Employment Sec. Commission, 197 Okla. 429. Zupancic Unemployment Compensation Case, 186 Pa. Super. 252.

The employee's loss of transportation which resulted in the employee leaving her work was a reason which was not attributable to the employer under the statute (RSA 282:4 A (supp)) and regulation 21 duly promulgated thereunder. Under such a statute and regulation the loss of transportation does not constitute good cause for the employee to terminate her employment. Nordhoff v. Rev. Bd. of Ind. Emp. Sec. Div., 129 Ind. App. 378; Davidson Unemployment Compensation Case, 189 Pa. Super. 543; Sanders, Disqualification for Unemployment Insurance, 8 Vand. L. Rev. 307, 331 (1955). Accordingly the decision of the Appeal Tribunal of the Department of Employment Security is affirmed and the order is

Appeal dismissed.

All concurred.