J. Robert Weaver
Thomas P. Maroney
Charleston, West Virginia
Attorneys for the Petitioners

John R. Merinar, Jr.
Steptoe & Johnson
Clarksburg, West Virginia
Attorney for Corhart Refractories Corporation

CHIEF JUSTICE McHUGH delivered the Opinion of the Court.

JUSTICE ALBRIGHT did not participate.
RETIRED JUSTICE MILLER sitting by temporary assignment.

        1. "The findings of fact of the Board of Review of the West Virginia Department of Employment Security are entitled to substantial deference unless a reviewing court believes the findings are clearly wrong. If the question on review is one purely of law, no deference is given and the standard of judicial review by the court is de novo." Syl. pt. 3, Adkins v. Gatson, 192 W. Va. 561, 453 S.E.2d 395 (1994).
        2. "Unemployment compensation statutes, being remedial in nature, should be liberally construed to achieve the benign purposes intended to the full extent thereof." Syl. pt. 6, Davis v. Hix, 140 W. Va. 398, 84 S.E.2d 404 (1954).
        3. An unemployed individual shall be eligible to receive benefits only if the Commissioner finds, inter alia, that he has been totally or partially unemployed during his benefit year for a waiting period of one week prior to the week for which he claims benefits for total or partial unemployment, under W. Va. Code, 21A-6-1(4) [1994]. The terms total and partial unemployment are defined in W. Va. Code, 21A-1-3 [1994]. However, under the definition of wages found in W. Va. Code, 21A-1-3 [1994], the term wages shall not include vacation pay received by an individual before or after becoming totally or partially unemployed but earned prior to becoming totally or partially unemployed, provided that the term totally or partially unemployed shall not be interpreted to include employees who are on vacation by reason of the employer's request provided they are unequivocally so informed at least ninety days prior to such vacation.

(footnote added).
        The following week, Corhart posted its first announcement of a planned shutdownSee footnote 3. The notice read, in relevant part:

        Please plan on a two week total plant production shutdown August 10-August 23. Plan to take vacation during that time unless your supervisor and the Plant Manager approve an exception. Some administrative areas may need to work. Also, a skeleton security staff will be maintained in the plant.

        If orders are received, you will be immediately notified of cancellation of the shutdown.

        When it was subsequently determined that the shutdown should occur one week later than was originally stated in the first shutdown announcement, the following revised announcement was posted on May 15, 1992, approximately ninety days prior to the planned shutdown:

        Due to the ship date of the Corning France order, the shutdown has been delayed one week. Please plan on a two week total plant production shutdown August 17 - August 30. Plan to take vacation during that time unless your supervisor and the Plant Manager approve an exception. Some administrative areas may need to work. Also, a skeleton security staff will be maintained in the plant.

        If orders are received, you will be immediately notified of cancellation of the shutdown.

        According to the minutes of the labor-management meeting held on July 1, 1992, the status of the planned shutdown was again discussed:
        The quote activity has been heavy, so we have some chances for orders. We did receive a Central Glass Fiber order and hope to receive an Iwaki and Oschatz, Poland order. We also look for an OCF order for late in the year. However, all of these orders only add up to the disappointing $17 million forecast for 1992. Any fall out from these would be a drop from this number. It is difficult to forecast any substantial changes in manpower until I get more information on these orders. It's possible that the shutdown could be cancelled if these orders are received, but I can't plan without the details.See footnote 4

(emphasis and footnote added.)
        Finally, on July 27, 1992, Corhart posted the following notice of shutdown and, in addition, the following shutdown policy:

            If an employee does not have enough vacation time to cover the shutdown, they will be required to take whatever vacation time they have and be placed on layoff for the remainder of the two week period.

            Employees who wish to take time off later in the year and have exhausted their vacation, may, if their Supervisor agrees, take a leave of absence without pay.

            A few employees may be required to work as needed.

            If you have any questions concerning this policy or unemployment benefits, please see Mike Pasternak.

        According to Corhart, because it had received a decreased number of orders, it had urged its employees to take vacation earlier that summer in an effort to avoid a shutdown.See footnote 5 The petitioners herein are twenty-two hourly employees who chose not to take vacation until the shutdown period in August. Consequently, they had sufficient vacation accrued to cover the entire two-week shutdown period.See footnote 6 The petitioners (hereinafter "claimants") subsequently applied for unemployment compensation benefits for the two- week shutdown period with the West Virginia Department of Employment Security (hereinafter "DES").
        DES Deputy Pat Pingley found that claimants were eligible for unemployment compensation benefits because they were partially unemployed during the two-week shutdown period. See W. Va. Code, 21A-6-1(4) [1987] ("[a]n unemployed individual shall be eligible to receive benefits only if the commissioner finds [inter alia,]that . . . (4) He has been totally or partially unemployed during his benefit year for a waiting period of one week prior to the week for which he claims benefits for total or partial unemployment"); W. Va. Code, 21A-1-3 [1991] ("'[P]artial unemployment' means: . . . [a]n individual who has not been separated from employment is partially unemployed in any week in which due to lack of full-time work wages payable to him are less than his weekly benefit amount plus twenty- five dollars: Provided, That said individual must have earnings of at least twenty-six dollars.")See footnote 7 However, Deputy Pingley found claimants to be disqualifiedSee footnote 8 for benefits under W. Va. Code, 21A-1-3 [1991], which states in relevant part:
        the term 'wages' does not include: . . . (10) Vacation pay . . . received by an individual before or after becoming totally or partially unemployed but earned prior to becoming totally or partially unemployed: Provided, That the term totally or partially unemployed shall not be interpreted to include . . . (B) employees who are on vacation by reason of the employer's request provided they are so informed at least ninety days prior to such vacation[.]

Deputy Pingley concluded that the May 15, 1992 notice of shutdown posted by Corhart sufficiently informed the claimants of the shutdown within ninety days thereof and that, consequently, they were disqualified from benefits for the two-week shutdown period because their wages exceeded their weekly benefit amount by twenty-five dollars or more.See footnote 9 See W. Va. Code, 21A-1-3 [1991] (defining partial unemployment).
        The claimants appealed Deputy Pingley's decision to the Board of Review of the West Virginia Bureau of Employment Programs and a hearing was conducted on November 2, 1992 before Administrative Law Judge Roderick A. Devison. Claimant Kenneth Johnston testified that, in late June of 1992, during a meeting with Mr. Zalaznik, the plant manager, Mr. Zalaznik indicated that he would let the employees know in a few weeks whether the shutdown was going to occur.See footnote 10 In addition, Sturl Waybright, president of the local union and also a claimant herein, testified that many employees were confused as to whether a shutdown was actually going to occur because there had been rumors that Corhart had been receiving orders and that there was a possibility the shutdown might be cancelled. Mr. Waybright further testified that he approached Corhart's personnel manager, Mike Pasternak, on more than one occasion regarding the status of the shutdown and that Mr. Pasternak's response was that "we really don't know yet." Conversely, notwithstanding Corhart management's hope that it would receive enough orders to warrant a cancellation of the shutdown, Mr. Zalaznik, the plant manager, testified that the shutdown was going to occur as scheduled, unless cancelled, and that no such cancellation occurred.See footnote 11
        In a decision dated November 10, 1992, ALJ Devison found, inter alia:
        There were several policy statements and explanations regarding the vacation time announced by the employer. There were some rumors that the shutdown would not occur if the employer got sufficient orders which had to be met at or during the period of the shutdown. Additional statements were made by the employer and passed on to the claimants and the other hourly workers that there could be some changes made but that the shutdown was still affirmed.

ALJ Devison concluded that W. Va. Code, 21A-1-3 [1991]
        provides that the phrase totally or partially unemployed shall not be interpreted to mean employees who are on vacation by reason of the request of the employer where the employees have been informed about the vacation at least 90 days prior to the vacation. The record reflects that the claimants were informed of the vacation on May 15, 1992, more than 90 days prior to the commencement of the vacation. Accordingly, having met the statutory notice requirement, it must be concluded that the claimants are neither totally nor partially unemployed. Article 21A-6-1 provides that an individual is not eligible for benefits unless he/she is totally or partially unemployed. Since the claimants are neither totally nor partially unemployed they are not eligible for benefits. The claimants are not disqualified. In view of the decision on eligibility, there remains an overpayment which may be collected in accordance with the usual procedures.See footnote 12

(footnote and emphasis added).
        The claimants appealed the administrative law judge's decision to the Board of Review of the West Virginia Bureau of Employment Programs (hereinafter "Board of Review").See footnote 13 In a decision dated February 8, 1993, the Board of Review determined, inter alia, that the May 15, 1992 shutdown notice, posted more than ninety days before the planned shutdown, was "equivocal in nature" and as such, did not satisfy the requirements of W. Va. Code, 21A-1-3 [1991]. The Board of Review ruled that claimants were partially unemployed and therefore eligible for benefits. The Board further found that the claimants were not disqualified, stating, in pertinent part:
        Although employees were advised to plan on a plant shutdown for [August 17 to August 30, 1992], the notice indicated that an employee's supervisor or the plant manager could approve an exception. Moreover, the notice indicated that certain other areas might need to work. Finally, the notice indicated that the vacation shutdown would be cancelled if orders were received. The record reflects that orders were thereafter received and there was great confusion among employees as to whether or not the shutdown would take effect. It was not until approximately thirty days prior to the shutdown that employees were notified that the shutdown was firm. That notice on its face said that not enough orders had been received to prevent the shutdown. Finally the shutdown policy, issued approximately twenty days prior to the shutdown, stated that certain exceptions would be made. Under all the circumstances of this case it is apparent that the notice issued on May 15, more than ninety days prior to the shutdown, was equivocal in nature. The obvious purpose of the statutory ninety day requirement is to provide notice to employees so that vacation plans may be made. The record in this case plainly reflects that the equivocal notice, the subsequent receipt of orders and the obvious confusion among employees did not serve to satisfy the statutory ninety day requirement. If the notice had been unequivocal the Board would not hesitate to make a different finding. However, the notice was on its face, not unequivocal and the circumstances that followed after the posting of the notice indicate that the statutory objective has not been satisfied. Accordingly, it is concluded that the claimants were partially unemployed within the meaning of the unemployment statute.

(emphasis added).
    Corhart subsequently appealed the Board of Review's decision to the Circuit Court of Kanawha County. See W. Va. Code, 21A-7-17 [1967]. In a final order dated September 22, 1994, the circuit court reversed the Board of Review's decision:             The Board' s determ ination that the notice of the plant closing was equivo cal is a finding of fact and as such is entitle d to 'plainl y wrong' defere nce. The Court adopts the Board' s findin gs of fact herein by refere nce in their entiret y.

            However, the Board's assumption that the statute requires an absolutely unequivocal notice is a conclusion of law that may be reviewed by this Court. Kisamore v. Rutledge 276 S.E.2d 821 (W. Va. 1981).

            After a thorough review of the record, this Court concludes that there is no evidence or authority that notice must be unequivocal. Thus, the Board was incorrect in determining that the requirements of § 21A-1-3 regarding the definition of 'wages' were not satisfied as a matter of law.

            Accordingly, the Court does hereby ORDER that the final decision by the Board of Review is reversed and the vacation pay received by the claimants shall be used in determining their eligibility for unemployment benefits.

        This order is before this Court, pursuant to W. Va. Code, 21A-7-27 [1970].

            (2) An individual who has not been separated from employment is partially unemployed in any week in which due to lack of full-time work wages payable to him are less than his weekly benefit amount plus twenty-five dollars: Provided, That said individual must have earnings of at least twenty-six dollars.

W. Va. Code, 21A-1-3 [1991] further provided, in relevant part, that
        the term 'wages' does not include: . . . (10) Vacation pay . . . received by an individual before or after becoming totally or partially unemployed but earned prior to becoming totally or partially unemployed: Provided, That the term totally or partially unemployed shall not be interpreted to include . . . (B) employees who are on vacation by reason of the employer's request provided they are so informed at least ninety days prior to such vacation[.]See footnote 14

(footnote added).
        In determining whether the claimants herein are eligible to receive unemployment compensation benefits under W. Va. Code, 21A-6-1(4) [1987] and 21A-1-3 [1991], we must address two issues: (1) whether, as a matter of law, W. Va. Code, 21A-1-3 [1991] requires an employer to "unequivocally" inform employees of employer-requested vacation at least ninety days prior thereto; and (2) if unequivocal notice is required under W. Va. Code, 21A-1-3 [1991], whether this requirement was satisfied by the May 15, 1992 shutdown announcement, posted at least ninety days prior to the planned shutdown.

Syl. pt. 3, Adkins v. Gatson, 192 W. Va. 561, 453 S.E.2d 395 (1994). See syllabus, Courtney v. Rutledge, 177 W. Va. 232, 351 S.E.2d 419 (1986); syl. pt. 2, Perfin v. Cole, 174 W. Va. 417, 327 S.E.2d 396 (1985); syl. pt. 1, Kisamore v. Rutledge, 166 W. Va. 675, 276 S.E.2d 821 (1981). See also W. Va. Code, 21A-7-21 [1943] ("In a judicial proceeding to review a decision of the board, the findings of fact of the board shall have like weight to that accorded to the findings of fact of a trial chancellor or judge in equity procedure.") Whether W. Va. Code, 21A-1-3 [1991] required Corhart to unequivocally inform its employees, including the claimants, of the planned plant shutdown at least ninety days in advance, is a question of statutory interpretation. Thus, our review of W. Va. Code, 21A-1-3 [1991] is plenary. Donley v. Bracken, 192 W. Va. 383, 387, 452 S.E.2d 699, 703 (1994).
        The purpose of our State's unemployment compensation laws, as stated in W. Va. Code, 21A-1-1 [1978] "is to provide reasonable and effective means for the promotion of social and economic security by reducing as far as practicable the hazards of unemployment[,]" so as to:
        (1) Provide a measure of security to the families of unemployed persons.

        (2) Guard against the menace to health, morals and welfare arising from unemployment.

        (3) Maintain as great purchasing power as possible, with a view to sustaining the economic system during periods of economic depression.

        (4) Stimulate stability of employment as a requisite of social and economic security.

        (5) Allay and prevent the debilitating consequences of poor relief assistance.

See Gibson v. Rutledge, 171 W. Va. 164, 167-68, 298 S.E.2d 137, 141 (1982); Lee-Norse Co. v. Rutledge, 170 W. Va. 162, 166, 291 S.E.2d 477, 481 (1982). See also Hill v. Board of Review, 166 W. Va. 648, 651, 276 S.E.2d 805, 807 (1981). To that end, this Court has traditionally held that "[u]nemployment compensation statutes, being remedial in nature, should be liberally construed to achieve the benign purposes intended to the full extent thereof." Syl. pt. 6, Davis v. Hix, 140 W. Va. 398, 84 S.E.2d 404 (1954). See syl. pt. 1, Lewis v. Gatson, 181 W .Va. 214, 382 S.E.2d 51 (1989); syl. pt. 1, Perfin v. Cole, supra; syl. pt. 1, Gibson v. Rutledge, supra; syl. pt. 1, Lee-Norse Co. v. Rutledge, supra. See also Adkins v. Gatson, 193 W. Va. at 564-65, 453 S.E.2d at 398-99; Bailey v. Rutledge, 174 W. Va. 476, 478, 327 S.E.2d 456, 458 (1985); London v. Bd. of Review of Dept. of Employment Security, 161 W. Va. 575, 576-77, 244 S.E.2d 331, 333 (1978). Accord Kirk v. Cole, 169 W. Va. 520, 523, 288 S.E.2d 547, 549 (1982).
        The requirement of noticeSee footnote 15 in W. Va. Code, 21A-1-3 [1991] is a practical one, clearly meant to insure that employees are afforded ample opportunity to plan vacations for shutdown periods chosen not by them, but by their employer. We recognize that when planning a shutdown, employers are, at the same time, hopeful that business conditions will improve and that a shutdown will not be necessary. The record in this case does not suggest nor do the claimants contend that Corhart management answered employees questions regarding the status of the shutdown in a manner intended to mislead or confuse them. Nevertheless, an employer which communicates its ambivalence to employees cannot fairly and reasonably expect them to confidently plan their lives, including vacation periods which may include many family members, only to have their plans disrupted when their employer determines that a shutdown is not warranted after all.See footnote 16 Unless a definite standard is set, the reason for the statutory requirement of informing the employee at least ninety days prior to the designated vacation period could be undermined.

        We hold, therefore, that an unemployed individual shall be eligible to receive benefits only if the Commissioner finds, inter alia, that he has been totally or partially unemployed during his benefit year for a waiting period of one week prior to the week for which he claims benefits for total or partial unemployment, under W. Va. Code, 21A-6-1(4) [1994]. The terms total and partial unemployment are defined in W. Va. Code, 21A-1-3 [1994]. However, under the definition of wages found in W. Va. Code, 21A-1-3 [1994], the term wages shall not include vacation pay received by an individual before or after becoming totally or partially unemployed but earned prior to becoming totally or partially unemployed, provided that the term totally or partially unemployed shall not be interpreted to include employees who are on vacation by reason of the employer's request provided they are unequivocally so informed at least ninety days prior to such vacation.

        As its decision indicates, the Board of Review's finding that the May 15, 1992 shutdown announcement was "equivocal in nature" was based upon the four corners of the posted announcement and upon events and discussions which occurred in relation thereto. We find that the Board fairly assessed the evidence in this regard and hold that its finding that Corhart failed to unequivocally inform its employees of the plant shutdown was not clearly wrong. Accordingly, the claimants were partially unemployed during the shutdown period, are eligible for unemployment compensation benefits under W. Va. Code, 21A-6-1(4) [1987] and are not disqualified. See W. Va. Code, 21A-6-3 [1990]; n. 8, supra.

The collective bargaining agreement further provides, in article 15, sections 2 and 3, that employees who have accrued vacation pay are entitled to receive it on July 1 of any given year.

(emphasis added).

            Just to reiterate the fact that there was never a notice posted after the May 15th notice that said anything different that there wouldn't be a shut down.

        In contrast, the May 15, 1992 shutdown announcements simply indicated, without specificity, that if orders were received, employees would be notified of the cancellation of the shutdown.