Thе defendant Coldwater Seafood Corporation, former employer of the plaintiff, appeals from a judgment in a District Court reversing a decision of the Division of Employment Security (division) which had denied the plaintiff unemployment compensation benefits. The judgment required that benefits be awarded. We reverse the judgment of the District Court and order the entry of a judgment remanding this case to the division for further findings.
We set forth the findings of the review examiner, which were adopted by the board. The plaintiff worked as a fish packer on a packing line. Although the regular workday ended at 4:30 p.m. , a condition of employment was that a fish packer would work until the supply of fish to be processed was exhausted. Overtime commenced eight minutes after 4:30 p.m. On March 12, 1981, the plaintiff and some of her coworkеrs walked off their line exactly at 4:30 p.m. although there was still fish to be packed. When the plaintiff reported to work on March 13, she and others involved in the incident were issued warning letters. On that day the production manager assigned the plaintiff to a different line from the one on which she had worked on the previous day. The supervisor of the line to which the plaintiff was assigned on the morning of March 13 had been “newly-hired.”
The review examiner found that after forty-five minutes on the job, a disagreement arose between the plaintiff and the newly-hired supervisor having to do with “pushing” fish.
2
Pushing fish was not one of the plaintiff’s duties although she hаd done it many times before on her own. According to the review examiner, the plaintiff “walked off the line and punched her
After stating his findings, which we have paraphrased in part and quoted in part, the review examinеr noted in his decision: “The [plaintiff] contends that she was harassed and put under a lot of pressure and had to quit because of an attempt to obtain union recognition and although she had attempted to resolve the issue of pushing the fish a number of times before, felt that there was no point in continuing her effort because of the employer’s repeated disregard of their own policy.”
After noting those contentions of the plaintiff, the examiner’s decision concludes as follows: “It is found that the [plaintiff] left her work because she was dissatisfied with the working conditions, that she failed to request a transfer tо other work or a leave of absence, that she was not advised to leave by a physician, and that she failed to exercise all the remedies available to her regarding working conditions. It is further found that she was not harassed because of her union activity and that the employer had attempted to resolve the pushing of fish, although not to the satisfaction of the [plaintiff] and it is determined that she left work voluntarily without good cause attributable to the employing unit within the meaning of Section 25 (e) (1) of the Law.”
The District Court judge’s decision states that the review examiner appeared to have “ignоred or not pursued” two contentions of the plaintiff: (1) she was the object of harassment by supervisors because of her union activity or at least because
The judge’s conclusion that the record requires a determination in the plaintiff’s favor and his order implementing that conclusion were erroneous. “The burden of proof as to all aspects of eligibility for unemployment benefits, including the burden of establishing good cause, rests with the worker.”
Sohler
v.
Director of the Div. of Employment Sec.,
Although we are satisfied that there was substantial evidence before the review examinеr which would have supported subsidiary findings justifying the conclusion that the plaintiff left her work voluntarily and without good cause attributable to the employing unit, we are not satisfied that such findings were made. We do not agrеe with the judge that the review examiner and the board ignored or failed to pursue the plaintiff’s contention that she was being harassed because of her union activities. The examiner specificаlly rejected that contention. However, the findings do not adequately dispose of the plaintiff’s contention that she had been required by her supervisors to “push” fish on the conveyor belt, although that was nоt one of the duties of a packer, and that that condition was not correctible. The examiner found that pushing fish was not one of the plaintiff’s duties. Also, from the finding that on March 13, 1981, there was a disagreemеnt between the plaintiff and the new supervisor about that subject, it may fairly be inferred that the supervisor on that occasion had insisted that the plaintiff push fish and that the plaintiff resisted. If the plaintiff was required by her employer to perform work that was “clearly antithetical to that for which she was initially employed,” she might have been entitled to terminate her employment and receive unemployment benefits,
Sohler
v.
Director of the Div. of Employment Sec., supra
at 789, but she must prove that she made a reasonable attempt to correct that situation or that such an attempt would have been futile. See
Kowalski
v.
Director of the Div. of Employment Sec.,
The thrust of the review examiner’s decision aрpears to be that the plaintiff quit her job rather than taking reasonable steps to assure that she would not be required to perform duties not called for by her employment. The findings indicate that at leаst on the last day of her employment the plaintiff pursued the problem with the production and personnel managers, whose attempts at resolution failed, and that she left her employment without requesting a transfer to other work or a leave
The decision of the District Court is reversed. Judgment is to be entered remanding this case to the Division of Employment Security for further proceedings consistent with this opinion.
So ordered.
Notes
It appears from testimony before the review examiner that, if there were an excess of fish on the conveyor belt at which the packers worked, the fish would tend to fall off the belt. Pushing the fish consisted of pushing it back and holding it while the belt moved. The fish was supposed to be packed at the same time it was being pushed and held.