Industrial Commission of
the State of Colorado (Ex-officio
Unemployment Compensation Commission of Colorado) and
Reed-Johnson Co., a Colorado
Corporation, Plaintiff in Error,
v.
Rocco Zavatta, Defendant in Error.
No. 23313.
166 Colo. 365, 443 P.2d
982
Supreme
Court of Colorado,
En Banc.
July 22, 1968.
Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen.,
Robert L. Harris, Asst. Atty. Gen., Denver, for plaintiff in error.
Philip Hornbein, Jr., Roy O. Goldin, Denver, for defendant in
error.
GROVES, Justice.
This is an unemployment compensation case brought here to review
the judgment of the district court, which reversed a decision of the
Industrial Commission of Colorado (Ex-officio Unemployment
Compensation Commission of Colorado), referred to as the
"commission." Defendant in error will be called the "claimant."
The claimant has been a journeyman plumber for a number of years.
During the period involved here he resided and worked in Colorado
Springs. He was employed by Reed-Johnson Co. from July 1964, to June
3, 1966, at a wage of $4.75 per hour. In addition, this employer
paid the equivalent of about 9 cents per hour on claimant's Blue
Cross and Blue Shield premiums. He was to receive two weeks vacation
if he remained in the employ of Reed-Johnson Co. throughout 1966.
Reed-Johnson Co. operated a nonunion shop.
Claimant concluded that he wished to work for a union shop.
Accordingly, he left the employ of Reed-Johnson Co. on Friday, June
6, 1966, joined the union that night and on the following Monday
went to work for Douglas-Jardine, a union establishment. For the
period commencing January 1, 1967, the union contract in effect
provided for an hourly wage of $4.66 plus fringe benefits of 37
cents per hour, or a total of $5.03 per hour.
Douglas-Jardine laid off claimant for lack of work on January 20,
1967, and on February 20, 1967, he applied for unemployment benefits
at the Department of Employment under the Colorado Employment
Security Act. C.R.S.1963, Ch. 82, as amended. Reed-Johnson Co. made
a request of the Department of Employment for a journeyman plumber
at the pay rate of $4.50 per hour. This was communicated to the
claimant on about March 15, 1967, but claimant understood that the
request specified $4.60 per hour. Claimant refused the job offer for
the reason that Reed-Johnson was nonunion; moreover, he thought that
if he were to go to work there the union would fine him $500.
On receipt of the job offer claimant contacted Mr. Oscar Johnson
of Reed-Johnson Co. and conversed with him briefly. The amount of
wages to be paid claimant was not discussed. Claimant left with the
statement that he would think over the matter of the employment and
let Mr. Johnson know. Mr. Johnson testified that when the request
was made of the Department of Employment it was not known that
claimant would be appearing in response thereto; that had claimant
accepted the employment he would have received his former wage of
$4.75 plus the same contribution to Blue Cross and Blue Shield; and
that, in addition, he would have been entitled to two weeks
vacation. A union representative testified that had the claimant
accepted the Reed-Johnson employment the union would not have fined
him but might have given him a reprimand.
The claimant went to work for a third plumbing firm on March 27
or 28, 1967, and was so employed at the time of the referees'
hearings herein.
A deputy of the Department of Employment denied the claim and
claimant appealed from the deputy's decision. A Department of
Employment referee held a hearing on April 27, 1967, and affirmed
the deputy's decision. Claimant's attorney requested that another
referee's hearing be held, which request was granted. Another
Department of Employment referee conducted a hearing on May 10,
1967, and the deputy's denial of the claim again was affirmed. While
the testimony in both hearings is in the record, the referee
referred to in the remainder of this opinion is the one who
conducted the second hearing.
The pertinent portions of C.R.S.1963, 82--4--7, and 8, as
amended, are as follows:
"82--4--7. * * * (1) Any unemployed
individual shall be eligible to receive benefits with
respect to any week only if the department finds that:
"(4) He is able to work and is available
for all work deemed suitable pursuant to the provisions of
section 82--4--8. * * *"
"82--4--8. * * *
"(6)(a) No Award. As a guide to the
department in the administration of this chapter, the
general assembly determines that no award of benefits shall
be granted to a claimant who is unemployed as a result of
any of the following conditions, as determined by the
department, * * *
"(c)(i) The refusal of suitable work or
refusal of referral to suitable work at any time from the
beginning of the base period to the time of the filing of a
claim. In determining whether or not any work is suitable
for an individual, the degree of risk involved to his
health, safety and morals, his physical fitness and prior
training, his experience and prior earnings, his length of
unemployment and prospects for securing work in his
customary occupation, and the distance of the available
local work from his residence, shall be considered.
Notwithstanding any other provisions of this chapter, no
work shall be deemed suitable and benefits shall not be
denied under this chapter to any otherwise eligible
individual for refusing to accept new work under any of the
following conditions:
"(iii) If the wages, hours, or other
conditions of the work offered are substantially less
favorable to the individual than those prevailing for
similar work in the locality."
There was no testimony as to the prevailing wage scale in
Colorado Springs. The referee apparently assumed that the union
scale was the prevailing scale. None of the parties had any
objection to this assumption and for the purposes of this case we
accept it. The parties further agree: (1) That a claimant may not
justify his refusal of a job offer on sole grounds that it is
nonunion (See Annot., 56 A.L.R.2d 1015); and (2) that, if in
fact the job offered is not "suitable," then the reason for the
claimant's refusal is immaterial. The principal question in the
case, therefore, was whether there was substantial evidence to
support the finding by the referee to the effect that the wages and
fringe benefits of the work offer were not substantially less
favorable than those prevailing in the locality. The district court
thought not. The commission thought there was sufficient evidence,
and we agree.
The finding of the district court was as follows:
"* * * That the evidence established that
the plaintiff was offered a job at the rate of $4.50 per
hour, that the prevailing wage was $5.03 per hour with
time-and-a-half for overtime. That in view of these facts
the wages and other conditions of the work offer were
substantially less favorable to the plaintiff than those
prevailing for similar work in the locality, and that
therefore such work was not suitable under the provisions of
Section 82--4--8(6)(c)(iii) of C.R.S.1963, as amended."
In Industrial Commission v. Brady, 128 Colo. 490, 263 P.2d
578, the offered work paid $2.00 an hour and the prevailing wage was
$2.39. This court affirmed the district court's finding that this
was a substantial difference. Between $2.39 and $2.00 there is a
reduction of about 17%. Between $5.03 and $4.50 there is a reduction
of about 10 1/2%. It is not necessary for us to make a determination
as to whether the 10 1/2% Would be considered as "substantial."
There was conflicting evidence before the referee--even portions of
claimant's testimony were inconsistent with other portions. When
there is evidence to support findings and they are made on
conflicting evidence, such findings are conclusive on review.
Vanadium Corp. of America v. Sargent, 134 Colo. 555, 307 P.2d
454.
There was sufficient evidence before the referee to support a
finding that claimant rejected a job that would have paid him $5.03
an hour, computed as follows: Base wage that would have paid to him
$4.75 Health insurance .09 Vacation pay .19 ----- $5.03
The claimant testified that he thought the job offer amounted to
the following: Base wage $4.60 Health insurance .09 Vacation pay .18
----- $4.87
This would have amounted to a variance of 3% From $5.03. If a
base wage figure of $4.50 instead of $4.60 were used, the variance
would be 5%. We hold that under the circumstances of this case a
variance of 5% would not be "substantially less favorable."
The Attorney General has pointed out that when working on a union
job the claimant's wages would be reduced by payments on his union
initiation fee and union dues. We doubt that this factor should be
taken into consideration in determining the matter of "substantially
less favorable" wages, just as we believe that claimant's fear of a
$500 fine by the union should be disregarded.
Reed-Johnson Co. did not pay premium pay for overtime work, but
permitted a claimant to work what ever overtime hours he wished.
Douglas-Jardine was under contract to pay premium wages for
overtime, but its overtime work was minimal. The respective overtime
situations do not affect the finding of the referee concerning
"substantially less favorable wages."
The claimant contends that the commission failed to give
consideration to claimant's short period of unemployment and has set
forth in his brief the following quotation from Bayly
Manufacturing Co. v. Department of Employment, 155 Colo. 433,
395 P.2d 216:
"It is clear that the beneficent purposes
of the Act do not include a guaranty that a job offer must
be for wages equal to that of the old job in order to be
deemed as 'suitable' work, but work at a substantially lower
wage should not be deemed 'suitable' unless a claimant has
been given a reasonable period to compete in the labor
market for available jobs for which he has the skill at a
rate of any commensurate with his prior earnings. * * *"
In other words, the shorter the period of unemployment the less
variance there can be between the prevailing wage and the offered
one. In ruling that there was sufficient evidence to support the
referee's finding, we have in mind the short period of unemployment.
The referee must have been mindful of it, and it was directed to the
commission's attention.
The judgment is reversed and the cause remanded to the district
court for the entry of an order affirming the denial of the claim by
the commission.
Pringle, J., concurs in the result.
Moore, C.J., and Day, J., not participating.
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