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Show MONDAY, JUNE 17, 1174 Dn The Supreme Court Of The State Off Utah In the instant case, the work offered by plaintiff was to begin immediately at the termination of claimants' services as millwrights, a skilled job. At the time claimants were compelled to exercise their option, they had been granted no opportunity to search the labor market for employment which would utilise their skill, training and experience. Under such circumstances, work as unskilleelaborers was unsuitable, and claimants did not voluntarily leave their employment without good cause. The Board of Review did not err in upholding the determination that claimants were eligible for unemployment indents are awarded their costs. compensation; . .work. &f . CONCUR: R. L. Tuckett, Justice 150 Conn. 278. 188 . 2d 658 , 660-66- 1. 97 A. L. R. 2d 1120 (1963); In Re 264 141 613 S. E. 2d 289. N.C. (1965); Bayly Manufacturing Troutman, Co. v. Dept. of Employment, Colo. , 395 P. 2d 216 (1964); Boeing Company v. State Employment Security Board of Review, 209 Kan. 430, 496 P. 2d 1376 (1972); 97 A. L. R. 2d 1 125, Anno: Refusal of type of work other than that in which employee was formerly engaged ae affecting right to unemployment compensation. Sec. 3, p 1127. support that determination. For the reasons stated herein, I join in the main decision, refusing to overturn the findings and order of the Industrial Commission allowing (Concurring specially) unemployment compensation. I concur with the main decision, but in supplement thereto desire to set forth my ideas as to certain principles relating to the issue confronted here: eligibility for compensation for involuntary unemployment, because it Is a problem constantly recurring in rulings that are being made every day. While each controversy must be analysed and resolved by applying the rules of law to its individual facts, the proper solution is not to be found in considering solely the immediate interests of either the employee or the is interests employer. It requires a consideration of their long-ter- m 1 the each other, and of the public interest in general economy. .' ELLETT, Justice: (Dissenting). I am unable to agree with the majority opinion. . has the status and effect of tending to encourage them to acquire superior skills and thus to make a more valuable contribution to production, which results ct seq. , U.C.A. 1953: The purpose of the Act is to 1.' See Sec. 35-4- -2 provide income for the worker and hie family in times of unemployment and to provide stability for the general economy; see Olof Nelson Constr. Co. v. Ind. Comm.. 121 Utah 525, 243 P. 2d 951; Kennecott Copper Corp. v. Dept. of Emp. Security Etc. .' 13 Utah 2d 262, 372 P. 2d 987. in proportional enrichment to the general economy. If these values are lost, there is not only the tangible loss, but also the intangible loss in the diminution of incentive for employees to exert extra efforts to acquire higher skills and productive capacity. For these reasons it is consistent with the purpose of the Act to allow employees reasonable freedom of choice in order to protect and enhance these advantages.2 It should be recognised that when conflicts arise between the above stated interests of the employer and the employee, it is desirable and necessary that both be required to exercise a reasonable amount of forbearance and cooperation to serve the objectives of the Act. In accordance with that purpose it would not seem to be too great an imposition on an employee, nor to require unduly hasard the lossof his acquired skills and superior status, a of for temporary period. But him to work at a somewhat lower class job the rule of reasonableness should apply. As to status: the other position should not be too exaggerated a demotion; as to time: it should not be for too No. 13529 Some millwright employees of the plaintiff refused to perform work at substantially their regular pay because the operation of the coke plant at which they worked was temporarily curtailed because of a strike of their buddies at the coal mine. Those employees did not have enough seniority to maintain their work as millwrights when the force at the coke plant was reduced. However, they did have seniority sufficient to work as laborers. Under the contract between the plaintiff and the union to which the employees belonged, each employee would have received pay for his work as a laborer, in an amount within three dollars per week of his base pay as a millwright. - The reduction in force was only temporary, and as soon as the union ended its strike at the coal mines the employees would have immediately been given work as millwrights. United Steelworkers v. Department of Employment Security Industrial Commission, an almost identical case with the instant matter ;wai before this court in 1964Thii court in refusing unemployment., benefits there said at page 73 of the Utah Reports: reduction in work at one of the employer's units, accompanied by a proffer to affected employees of employment in another unit at a reduced salary of between 15 and 20 per cent was met by their refusal and a resultant denial by the Commission to pay applicants unemployment benefits. A considerable number of fellow employees accepted the employment offered at a reduced salary. A The act providing benefits for unemployed people whose unemployment results from no fault of their own, was designed to alleviate hardship accruing to the employee and his family because of involuntary layoffs without any available substitute therefor. I think the millwright employees should have accepted the available I would reverse the decision of the defendant Department. and work, Henriod, Justice, concurs in the views expressed in the dissenting opinion of Mr. Justice Ellett. 1. lo Utah 2d 72. 395 (3) . P. 2d 837. shall have the right to commence a civil action against the municipality to enjoin the levy or collection of the assessment or to set aside and declare unlawful the proceedings. FILED June 11, 1974 Kanab City, a body politic and corporate under the laws of the State of Utah, Defendant and Respondent. U.C.A. (1), 4. Peterson v. Ind. Comm., 102 Utah 175, 129 P. 2d 563. of the fmployeea' rights inBTelTpositions Bernell Lewis, et al. , Plaintiffs and Appellants, 35-4-10- 1953. Nevertheless, also to be considered in connection with the foregoing this is equally important and sound proposition: that an employee who by reason of education, training and experience has attained a superior position in the type of work hie does, and his earning capacity, should not be forced into a position where he will lose or seriously hazard their loss. It is also important to have in mind that the wage supplement (to assure 85 of their regular wage) is not the whole answer. It overlooks the fact that money is emonly one, although admittedly an important one, of the motivations in ployment. It is a part of everyday experience and common knowledge that the senses of importance, of status and of achievement, are things which a worker is entitled to consider in choosing and following his vocation. Weonorihg mmm the Dubkowski case, footnote 4, main opinion. 3. Findings are conclusive if supported by evidence, Sec. economy. - " For a first: an employer must necessarily have a reasonable latitude of discretion in changing assignments of his employees in order to manage his business in the most efficient and economical manner. In the long run this will produce the best result for employers, by allowing busi nesses to prosper and expand; and consequently by furnishing more and better jobs for employees; and by these combining to benefit the general v! good die cuss ion and statement that the purpose of such Act is to encourage and improve, rather than to depress, the status of workers see T. vis-a-v- ' Because the Industrial Commission's Department of Employment Security is charged with the administration of the Act, it has both the prerogative and the responsibility of finding the facts;3, and of analysing the total situation, including the weighing of the interests referred to above, and of making the determination. Due to this endowment of authority, and its presumed expertise in this field, under the standard rule of administrative review we should not overturn its action unless it is so unreasonable as to be regarded as capricious and arbitrary. ..." i As to the extended a period, the end of which should be either definite, or which can be predicted with reasonable certainty. It is my opinion that the controlling factor in this situation was the of time in which these workers could have expected to be restored to length their regular positions. It is significant to point out that there was conflicting testimony as to what that period would be; and that upon such testimony, the finding made was that if they accepted the offered positions, the workers "would lose the use of their skills for an indefinite period of time Notwithstanding the conflict, there is a reasonable basis in the evidence to 4. See Dubkowski v. Administrator, Unemployment Compensation Act. CROCKETT, Justice: PAGE NINE INTERMOUNTAIN COMMERCIAL RECORD After the expiration of such thirty-da- y period: Allan E. Mecham. Clerk (b) No suit to enjoin the issuance or payment of the bond, the levy, collection or enforcement of the assessments or in TUCKETT. Justice: This action was commenced by the plaintiffs whose properties were assessed by the defendant city pursuant to proceedings to establish a special filed their complaint in the district improvement district. The plaintiffs court seeking to have the proceedings establishing the special improvement the district declared invalid. Kanab City moved for an order dismissing Utah Code Anto Section complaint which was granted pureuant notated 1953. 10-16-- 28, it appears that the trial court relied on the following provisions of the section above referred to: ; a (1) No assessment or proceeding in special improveaside in whole or set void or declared be ment district shall in part in consequence of any error or irregularity which does not go to the equity or justice of the assessment or However, any party feeling aggrieved by an and who has not waived his ob- II1VU wa f nMiinqrD -7 or 10?16-1- 7 in section jections thereto as provided proceeding. 10-16- any other manner attacking or questioning the legality of the bonds or assessments may be instituted in this state and no court shall have authority to inquire into such matters. On or about September 8, 1971, Kanab City gave notice of its intention to construct curb and gutter upon certain streets within the City. In Ancompliance with the requirements of Chapter 16, Title 10, Utah Code notated 1953, the City gave notice of its intention to create a special improvement district which notice was published in a newspaper having general circulation within the City. The notice set forth the estimated cost to be paid owners was $11, 000. 00 and approximately $3. 35 per front the property by foot for all abutting property. Pursuant to the notice a public hearing was had and protects and objections were heard by the City Council. The work of constructing the curb and gutter was commenced and completed and thereafter the City adopted an ordinance creating the special improvement district and assessing the property owners in amounts sufficient to cover the cost of the project to be borne by the abutting property owners. The total cost of the $12,946.28 more than the estimated project amounted to $23, 946. 28 which wasfront foot cost was far In excess of the roit contained In the Initial notice. 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