JOHNNY E. DAMRON, CARROLL V. EDMONDS,
DEWEY R. JOHNSON, JAMES E. LEWIS, AND
LELAND E. POTTORFF,
A DELAWARE CORPORATION, JOHN H. TUNDERMAN,
CHARLES S. FERGUSON, THOMAS DONNALLY AND
Joseph M. Farrell, Jr.
John E. Jenkins, Jr.
James A. McKowen Evan H. Jenkins
Hunt & Wilson Jenkins, Fenstermaker, Krieger,
Charleston, West Virginia Kayes & Farrell
Charles M. Hatcher, Jr. Huntington, West Virginia
Huntington, West Virginia Attorney for the Appellant
Attorney for the Appellees
JUSTICE MILLER delivered the Opinion of the Court.
1. "'When a contract of employment is of indefinite
duration it may be terminated at any time by either party to the
contract.' Syl. pt. 2, Wright v. Standard Ultramarine & Color Co.,
141 W. Va. 368, 90 S.E.2d 459 (1955)." Syllabus Point 2, Cook v.
Heck's, Inc., 176 W. Va. 368, 342 S.E.2d 453 (1986).
2. "Contractual provisions relating to discharge or job
security may alter the at will status of a particular employee."
Syllabus Point 3, Cook v. Heck's, Inc., 176 W. Va. 368, 342 S.E.2d
3. Where an employee seeks to establish a permanent
employment contract or other substantial employment right, either
through an express promise by the employer or by implication from
the employer's personnel manual, policies, or custom and practice,
such claim must be established by clear and convincing evidence.
4. In order to establish an implied contract right by
custom and usage or practice, it must be shown by clear and
convincing evidence that the practice occurred a sufficient number
of times to indicate a regular course of business and under
conditions that were substantially the same as the circumstances in
the case at issue. Such a showing is necessary to demonstrate the
parties' implied knowledge of and reliance on the custom or
practice, an essential element of such a contract.
5. "When the plaintiff's evidence, considered in the light most favorable to him, fails to establish a prima facie right of recovery, the trial court should direct a verdict in favor of the defendant." Syllabus Point 3, Roberts v. Gale, 149 W. Va. 166, 139 S.E.2d 272 (1964).
This is an appeal by the defendant below, INCO Alloys
International, Inc. (INCO), from a judgment, entered on March 5,
1991, by the Circuit Court of Cabell County, which affirmed a jury
verdict in favor of the plaintiffs below, all former INCO
employees, in an action for breach of their contracts of
employment. The jury found that INCO had terminated the
plaintiffs' employment in violation of implied contractual
seniority rights. The principal issue on appeal is whether such
rights can arise solely from the past practices of the employer.
We conclude that under certain circumstances, such rights may
arise, but did not in this case. We, therefore, reverse the
judgment of the circuit court.
INCO operates a metallurgical plant in Huntington, Cabell
County. The most senior of the plaintiffs, Lowell R. Adkins, began
working for INCO in March of 1960. The most junior, Leland E.
Pottorff, was hired in August of 1973. Almost all of the
plaintiffs began work at INCO as hourly employees, or operators,
who were members of a union and protected by a collective
bargaining agreement. The plaintiffs were subsequently promoted to
the inspection department. As inspectors, the plaintiffs occupied
a management position not covered by the collective bargaining
agreement and were transferred to the weekly salary payroll.
It appears from the record that prior to 1979 there was
a seniority system with regard to movement within the inspection
department. Seniority lists were kept, and written notices of job
vacancies or openings were posted. Inspectors who were interested
in moving to those positions "bid" on them by signing the notice
sheet. The job would be awarded to the qualified inspector with
the most seniority. If an inspector's job was eliminated, he could
"bump" a less senior inspector and take the latter's job. This
system of bidding and bumping was also used to choose vacation and
workshifts and to distribute overtime. It does not appear,
however, that any inspector had bidding or bumping rights outside
the inspection department.
In 1979, INCO reorganized the inspection department,
setting up three types of inspectors: Quality Control Specialists,
which required specific knowledge of a particular product, Quality
Assurance Specialists, which required broad product knowledge, and
Quality Control Specialists - Nondestructive Testing, which
required technical training and certification to perform testing
required by the government and other customers. At the same time,
all inspectors were transferred from the weekly salary payroll to
the monthly salary payroll, from which most management employees
were paid. The system of bidding and bumping for jobs and
The plaintiffs contend, however, that the inspectors
retained an informal seniority system of sorts after the 1979
reorganization. At least some job openings were reported to a
manpower coordinator, who would orally notify area supervisors,
who, in turn, would notify the inspectors. Those interested in
applying for the position would do so through their supervisors or
by contacting the manpower coordinator. If all qualifications for
the job were equal, the most senior inspector who applied would
usually be awarded the job. It appears, however, that not all job
openings were filled through this process and that at least some
reshuffling of positions was done solely by management decision.
Inspectors continued to earn overtime and, in at least some areas
of the inspection department, continued to bid for shifts and other
In 1987, because of declining profits, INCO commissioned
two separate studies of its operation. One study noted a chronic
economic decline and recommended that INCO reduce its fixed costs
by reducing the number of employees. The other study recommended,
among other things, streamlining the inspection function by
teaching the operators to inspect their own materials and products.
INCO undertook to implement these recommendations, and the
resulting reorganization brought about the loss of approximately
200 jobs at the Huntington plant, including the elimination of
fourteen inspector positions. Approximately 100 employees took
advantage of voluntary retirement options INCO offered in an effort
to reduce the number of layoffs.
In September 1987, the plaintiffs and seven other
inspectors were advised that their positions were being eliminated
as a result of the reorganization. These inspectors were told that
INCO would try to find jobs for them elsewhere in the plant, and
they were asked to train the operators to take over the
responsibilities of the eliminated positions. However, INCO was
able to find jobs for only two of the fourteen inspectors. A third
was subsequently fired for cause. In December of 1987, INCO
discharged approximately 100 people, including the plaintiffs.
The plaintiffs subsequently filed suit against INCO in
the Circuit Court of Cabell County, alleging that INCO had breached
their employment contracts by firing them and retaining less senior
personnel.See footnote 1 Trial commenced on November 7, 1990. On December 3,
1990, the jury found in favor of the plaintiffs, awarding them over
$2.6 million in damages. INCO's motions for an new trial and for
judgment notwithstanding the verdict were denied by order of the
circuit court dated March 5, 1991. It is from this order that INCO
It is undisputed that the plaintiffs had no written contract of employment. The plaintiffs' breach of contract claim is, instead, premised on their assertion that INCO's conduct and prior dealings with them gave rise to an implied contract of employment requiring INCO to use seniority in making all employment decisions. INCO insists that the plaintiffs were at-will employees and that there were no enforceable contractual limitations on its right to fire them.See footnote 2
The plaintiffs rely, in part, on principles established
in Cook v. Heck's, Inc., 176 W. Va. 368, 342 S.E.2d 453 (1986).
The plaintiff employee in Cook had no written contract of
employment. The employer, however, had distributed to its
employees a handbook or policy manual which set forth a supposedly
complete list of the reasons for which an employee could be fired.
The plaintiff, who had been fired for other reasons, alleged that
the handbook gave rise to an implied employment contract which
permitted her to be discharged only for the reasons stated. The
employer asserted that the plaintiff was an at-will employee who
could be fired for any reason or for no reason at all. The circuit
court entered a directed verdict in favor of the employer.
On appeal, we recognized, in Syllabus Point 2 of Cook, that an oral contract of employment for an indefinite period of time is presumed to give rise to an "at-will" employment relationship:
"'When a contract of employment is of indefinite duration it may be terminated at any time by either party to the contract.' Syl. pt. 2, Wright v. Standard Ultramarine & Color Co., 141 W. Va. 368, 90 S.E.2d 459 (1955)."
See Harless v. First Nat'l Bank in Fairmont, 162 W. Va. 116, 246
S.E.2d 270 (1978). We also recognized, however, that the
presumption may be overcome by evidence of contractual provisions
to the contrary. In Syllabus Point 3 of Cook, we stated:
"Contractual provisions relating to discharge or job security may alter the at will status of a particular employee."
See Bell v. South Penn Natural Gas Co., 135 W. Va. 25, 62 S.E.2d
We noted in Cook that in other jurisdictions, promises of
job security in an employee handbook or policy manual had been held
to be enforceable and sufficient to transform an at-will employment
relationship into one in which the employee could be fired only for
just or stated cause. See, e.g., Leikvold v. Valley View Community
Hosp., 141 Ariz. 544, 688 P.2d 170 (1984); Toussaint v. Blue Cross
& Blue Shield, 408 Mich. 579, 292 N.W.2d 880 (1980); Pine River
State Bank v. Mettille, 333 N.W.2d 622 (Minn. 1983); Woolley v.
Hoffman-LaRoche, Inc., 99 N.J. 284, 491 A.2d 1257, modified on
other grounds, 101 N.J. 10, 499 A.2d 515 (1985); Weiner v. McGraw-Hill, Inc., 57 N.Y.2d 458, 457 N.Y.S.2d 193, 443 N.E.2d 441 (1982);
Thompson v. St. Regis Paper Co., 102 Wash. 2d 219, 685 P.2d 1081
(1984). See generally Annot., 33 A.L.R.4th 120 (1984). We
concluded that these holdings were consistent with our traditional
principles of contract formationSee footnote 3 and held in Syllabus Point 5 of
"A promise of job security contained
in an employee handbook distributed by an
employer to its employees constitutes an offer
for a unilateral contract; and an employee's
continuing to work, while under no obligation
to do so, constitutes an acceptance and
sufficient consideration to make the
employer's promise binding and enforceable."
We also recognized, however, that the offer contained in
the employee handbook or policy manual "'must be definite in form
and must be communicated to the offeree.'" 176 W. Va. at 374, 342
S.E.2d at 459, quoting Pine River State Bank v. Mettille, 333
N.W.2d at 626. In Syllabus Point 6 of Cook, we held:
"An employee handbook may form the basis of a unilateral contract if there is a definite promise therein by the employer not to discharge covered employees except for specified reasons."
We found that the handbook's list of specific grounds for
termination of employment provided sufficient evidence of an
implied promise to discharge employees only on the stated grounds
to warrant submitting the case to the jury.
Subsequently, in Suter v. Harsco Corp., 184 W. Va. 734,
403 S.E.2d 751 (1991), we recognized that an implied contract of
employment must be clearly proved. We also established that an
explicit statement in the employment application that employment
was terminable at will by the employer effectively disclaimed any
implied promises contained in the employee handbook. We have
acknowledged the principles set forth in Cook in several other
cases. See Collins v. Elkay Min. Co., 179 W. Va. 549, 371 S.E.2d
46 (1988); Conaway v. Eastern Associated Coal Corp., 178 W. Va.
164, 358 S.E.2d 423 (1986); Gillespie v. Elkins S. Baptist Church,
177 W. Va. 88, 350 S.E.2d 715 (1986).
The plaintiffs also rely on cases from other
jurisdictions which have recognized a contract for permanent
employment based on oral statements by the employer to the effect
that employment would be secure so long as the employee worked
diligently and did not violate any company policy. A number of
jurisdictions hold that such promises limit the employer's right to
fire the employee to those circumstances where there is "just
cause" for such discharge.See footnote 4
However, these cases rarely turn solely on the promise of
continued employment made to the employee.See footnote 5 Instead, most courts
consider a variety of factors. In some, there is an employee
manual, like that in Cook, or other written policy statement which
clearly implies that the employee will not be discharged except for
good cause. See, e.g., Toussaint v. Blue Cross & Blue Shield,
supra. In other cases, there are a number of activities by the
employer and the employee that point to an implied agreement even
though no promise is expressed in a written personnel manual.
In Foley v. Interactive Data Corp., 47 Cal. 3d 654, 254
Cal. Rptr. 211, 765 P.2d 373 (1988), for example, the California
Supreme Court found that the employee had signed a covenant not to
compete and a disclosure and assignment of information agreement
when first hired. He was given promotions over the next six and
one-half years and received superior performance awards and bonuses
along with salary increases. He also claimed his superiors made
repeated oral assurances of job security and that the employer had
written termination guidelines. Those factors were deemed
sufficient to permit the jury to find an implied contract not to
terminate except for good cause.
"In the employment context, factors
apart from consideration and express terms may
be used to ascertain the existence and content
of an employment agreement, including 'the
personnel policies or practices of the
employer, the employee's longevity of service,
actions or communications by the employer
reflecting assurances of continued employment,
and the practices of the industry in which the
employee is engaged.' (Pugh [v. See's
Candies, Inc., 116 Cal. App. 3d 311, 327, 171
Cal. Rptr. 917, 925-26 (1981)]; see Note,
Implied Contract Rights to Job Security (1974)
26 Stan.L.Rev. 335, 350-366 [reviewing factors
courts have used in implied contract
analyses].)" 47 Cal. 3d at 680, 254 Cal.
Rptr. at 225, 765 P.2d at 387.
The Oklahoma Supreme Court in Hinson v. Cameron, 742 P.2d
549, 554-55 (Okla. 1987), gave this summary of considerations that
might give rise to an implied contract of employment:
"Factors which have been isolated as critical to evaluate whether an implied contract right to job security exists are: (a) evidence of some 'separate consideration' beyond the employee's services to support the implied term, (b) longevity of employment, (c) employer handbooks and policy manuals, (d) detrimental reliance on oral assurances, pre-employment interviews, company policy and past practices and (e) promotions and commendations." (Footnote omitted).
Much the same analysis has been applied in other jurisdictions.
See, e.g., Kestenbaum v. Pennzoil Co., 108 N.M. 20, 766 P.2d 280
(1988), cert. denied, 490 U.S. 1109, 109 S. Ct. 3163, 104 L. Ed. 2d
1026 (1989); Roberts v. Atlantic Richfield Co., 88 Wash. 2d 887,
568 P.2d 764 (1977).
Recently, we discussed the permanent employment contract
concept in Williamson v. Sharvest Management Co., ___ W. Va. ___,
___ S.E.2d ___ (No. 20276 2/28/92), where we recognized that
"lifetime employment contracts are extraordinary and that an offer
for lifetime employment must be expressed in clear and unequivocal
terms before a court will conclude that an employer intended to
enter into such a weighty obligation." ___ W. Va. at ___, ___
S.E.2d at ___ (Slip op. at 5). (Citations omitted). The plaintiff
in Williamson had been offered the position of manager of a
combination grocery store and gasoline station. The employer had
handwritten on a piece of paper the amount of the plaintiff's base
salary, the hours of the store's operation, the wages of several
other employees, and the fact that health insurance, a profit-sharing plan, and a Christmas bonus would be provided. The paper
was not signed or dated by either party, nor was any duration of
employment stated. We found this evidence insufficient as a matter
of law to support the plaintiff's claim of lifetime employment.See footnote 6
It is clear from Williamson and Cook that where an
employee seeks to establish a permanent employment contract or
other substantial employment right, either through express promises
by the employer or by implication from the employer's personnel
manual, policies, or custom and practice, such claim must be
established by clear and convincing evidence.
The plaintiffs here offer no evidence of an employee
handbook, policy manual, or any other written statement of policy
as the basis for their claim of an implied promise to conduct
layoffs by seniority.See footnote 7 Nor are their claims predicated on promises
of permanent employment. Rather, the plaintiffs contend that there
was an implied seniority policy limiting INCO's right to fire them,
which arose solely from INCO's past practices and prior conduct.
The few cases that we have found that have dealt solely
with an implied seniority claim based on custom and practice are
federal cases that rely on Michigan law, as illustrated by this
statement in Pachla v. Saunders System, Inc., 889 F.2d 496, 498
(6th Cir. 1990): "In Toussaint [v. Blue Cross & Blue Shield, 408
Mich. at 610, 292 N.W.2d at 890], the court held that 'an
employer's express agreement to terminate only for cause, or
statements of company policy and procedure to that effect, can give
rise to rights enforceable in contract.'" See also Boynton v. TRW,
Inc., 858 F.2d 1178 (6th Cir. 1988); Nixon v. Celotex Corp., 693 F.
Supp. 547 (W.D. Mich. 1988). In Pachla, the employee, who was in
a supervisory position, claimed that the company had, in practice,
applied its written seniority policy for hourly employees to
layoffs of supervisory personnel. The court found undisputed
evidence that seniority was not the only criteria for layoffs of
"[The] testimony established only that seniority was one factor in Saunders' layoff procedure. Indeed, Pachla concedes that seniority was the basis for layoffs at Saunders only 'if performance was equal.'. . . Because Pachla has failed to show that Saunders had a layoff policy based solely on seniority, he cannot argue that Saunders violated its layoff procedure simply by retaining two less senior employees." 899 F.2d at 501.
In Boynton v. TRW, Inc., supra, the employee, who was let
go because of a reduction in force for economic reasons, claimed he
was led by management to believe there was a seniority-based layoff
policy. In concluding that the employee had failed to establish
the existence of such a policy, the court stated: "However,
Boynton never identified the nature or context of his purported
conversations with 'top management,' nor did he identify the
specific individuals who purportedly told him that TRW adhered to
a seniority-based layoff policy." 858 F.2d at 1187.
Finally, in Nixon v. Celotex Corp., supra, the employee failed to prove that the company had a policy of following seniority on an economic layoff:
"Nixon has neither alleged in his complaint nor offered evidence that Celotex had either a verbal or written policy that, during adverse economic conditions, discharges would be made on the basis of seniority. In fact, Nixon admitted that the company had no such written or verbal policy and 'stayed away from those kinds of commitments.' At best, Nixon has established that he had a subjective expectation that discharges would be based on seniority. Such expectations on the part of Nixon do not create an enforceable contract right. Schwartz v. Michigan Sugar Co., 106 Mich. App. 471, 308 N.W.2d 459 (1981). See also Kay v. United Technologies Corp., 757 F.2d 100 (6th Cir. 1985)." 693 F. Supp. at 557.
The above-cited cases do not discuss any general rule as
to the sufficiency of the evidence to establish a custom or
practice which will give rise to an implied contract right. This
issue was addressed in Poling v. Baltimore & Ohio Railroad Co., 166
F. Supp. 710 (N.D. W.Va. 1958), where the plaintiffs were seeking
seniority based on their military service. Part of their argument
rested on the claim that promotions were customarily based solely
on seniority. The court found this not to be the case factually
and explained the evidentiary basis of the doctrine of custom and
"What constitutes a custom or usage in the legal sense does not necessarily coincide with the layman's definition of 'the custom' or 'the ordinary practice.' . . . The case of Shipley v. Pittsburgh & L. E. R. R. Co., D.C.W.D.Pa. 1949, 83 F. Supp. 722, 749 aptly summarizes the law in this field:
'To establish a custom it is not enough to prove the act is frequently done; it must be both alleged and proved to be certain, general, uniform and recognized, and so notorious as to be probably known to all parties to be controlled by it. Where it is so alleged and proved, it is a fair presumption that the parties, on entering into their engagement, do it with reference to the custom, and agree that their rights and responsibilities shall be determined by it. A practice to arise to the dignity of a custom so as to enter into and form a part of a contract must possess those elements of certainty, generality, fixedness, and uniformity, as are recognized by the law as essential to constitute a custom. A loose, variable custom or discretionary practice does not arise to the dignity of a custom so as to control the rights of the parties to a contract. If the usage leaves some material element to the right of exercising an option, or discretion, of one of the parties, it does not constitute a custom. * * * One who would establish a custom or usage has the burden of proving it by evidence so clear, uncontradictory and distinct as to leave no doubt as to its nature and character.'"
116 F. Supp. at 717. (Citations omitted).
See also Sterling Organ Co. v. House, 25 W. Va. 64 (1884).
The doctrine is most frequently used to supplement or
explain the terms of a written contract, but it is generally
recognized that it cannot be used to vary the explicit terms of a
contract. We explained this concept in Sterling Organ Co. v.
House, 25 W. Va. at 96, as follows:
"[A] usage to be admissible to explain the
intent of parties in a contract must not only
be so well settled, so uniformly acted upon
and of such long continuance, as to raise a
fair presumption, that it was known to both
contracting parties, and that they contracted
in reference to and in conformity with it, but
it must not control the express intention of
the parties nor the interpretation and effect,
which result from an established rule of law
applicable to it, nor be inconsistent with a
rule of the comon law on the same subject.
And such usage of a trade, in order that it
may be regarded as incorporated into a
contract, must be certain, general, known,
reasonable and not repugnant to the contract
nor to the rules of law." (Citations
omitted).See footnote 8
See, e.g., Cotiga Dev. Co. v. United Fuel Gas Co., 147 W. Va. 484,
128 S.E.2d 626 (1962); West Virginia-Pittsburgh Coal Co. v. Strong
129 W. Va. 832, 42 S.E.2d 46 (1947); Hall v. Philadelphia Co., 72
W. Va. 573, 78 S.E. 755 (1913). See generally 21A Am. Jur. 2d
Customs & Usages §§ 5-11 (1981); 25 C.J.S. Customs & Usages §§ 2-13
(1966 & Supp. 1991).
From the foregoing authorities, it can be seen that in order to establish an implied contract right by custom and usage or practice, it must be shown by clear and convincing evidence that the practice occurred a sufficient number of times to indicate a regular course of business and under conditions that were substantially the same as the circumstances in the case at issue. Such a showing is necessary to demonstrate the parties' implied knowledge of and reliance on the custom or practice, an essential element of such a contract.
In this case, the plaintiffs have failed to establish by
clear and convincing evidence that INCO had, by custom and
practice, established a policy with regard to economic layoffs that
was based only on seniority. Although there was a considerable
amount of testimony regarding the "bid and bump" practice at INCO
with regard to job openings within the inspection department, there
is no evidence, other than the plaintiffs' subjective
interpretation of events, to suggest that the practice was employed
during economic layoffs. The practice was altered after the 1979
reorganization of the inspection department, with some, but not
all, of the job openings being handled through the manpower
coordinator. In addition, it appears that selection of employees
to fill vacancies within the inspection department was not based
solely on seniority, but also on qualifications, particularly after
the 1979 reorganization of the department. Again, it must be
emphasized that there were no written documents from INCO that
suggested a department layoff system based only on seniority.
The record reflects that only two economic layoffs had
occurred before the 1987 layoffs, which involved the plaintiffs.
While the entire mechanism of these layoffs is not set out in the
record, it does appear that seniority was not the sole criteria for
determining which employees were retained. In 1971, 118 salaried
employees, of whom nine were inspectors, were laid off. It appears
that factors other than seniority, specifically performance, played
a role in the decision to layoff those individuals. In 1982, the
100 least senior employees were placed in a pool. Those with
special skills were retained, the others were laid off. This
militates against the idea that seniority was the sole criterion
for selecting those employees to be let go during economic layoffs.
In Boynton v. TRW, Inc., 858 F.2d at 1188, where layoffs
were based on other factors besides seniority, the federal appeals
"Other than his own subjective belief that employees were laid off according to seniority, Boynton offered no evidence of a contrary policy. Boynton's failure to produce any significant evidence from which a reasonable jury could infer that TRW followed a seniority-based policy undermines the basis of his claim that TRW breached the discharge-related terms of his employment contract."
We conclude that the evidence here is in the same category and,
therefore, fails to show a practice and custom which gave rise to
implied contractual seniority rights. While seniority may have
been a material factor in filling vacancies in the inspection
department, there was no evidence that this practice had any
application in cases of economic layoffs.See footnote 9
Because of the plaintiffs' failure to establish the
claimed seniority practice by clear and unequivocal evidence, we
find that INCO was entitled to a directed verdict. We conclude, as
we did in Williamson v. Sharvest Management Co., supra, that the
trial court should have granted the employer's motion for a
directed verdict under Syllabus Point 3 of Roberts v. Gale, 149 W.
Va. 166, 139 S.E.2d 272 (1964):
"When the plaintiff's evidence, considered in the light most favorable to him, fails to establish a prima facie right of recovery, the trial court should direct a verdict in favor of the defendant."
See also Troy Min. Corp. v. Itmann Coal Co., 176 W. Va. 599, 346
S.E.2d 749 (1986); Hinkle v. Martin, 163 W. Va. 482, 256 S.E.2d 768
For the foregoing reasons, we reverse the judgment of the
Circuit Court of Cabell County.
Footnote: 1The plaintiffs also raised claims of age discrimination, ERISA violations, outrageous conduct, and implied covenant of good faith and fair dealing. Of these claims, only the age discrimination claim went to the jury, which rendered a verdict thereon in favor of INCO. We are, therefore, concerned here only with the breach of contract claim.
Footnote: 2The plaintiffs' claim for breach of contract should be distinguished from claims for wrongful discharge which arise when an at-will employee is fired for reasons which contravene some substantial public policy. See, e.g., McClung v. Marion County Comm'n, 178 W. Va. 444, 360 S.E.2d 221 (1987); Cordle v. General Hugh Mercer Corp., 174 W. Va. 321, 325 S.E.2d 111 (1984); Harless v. First Nat'l Bank in Fairmont, 162 W. Va. 116, 246 S.E.2d 270 (1978).
Footnote: 3In Cook, 176 W. Va. at 373, 342 S.E.2d at 458-59, we stated:
"The concept of unilateral contract, where
one party makes a promissory offer and the
other accepts by performing an act rather
than by making a return promise, has also
been recognized: 'That an acceptance may be
effected by silence accompanied by an act of
the offeree which constitutes a performance
of that requested by the offeror is well
established.' First National Bank v.
Marietta Manufacturing Co., 151 W. Va. 636,
641-42, 153 S.E.2d 172, 176 (1967).
"Consideration is also an essential
element of a contract. . . .
Consideration has been defined as
'some right, interest, profit, or
benefit accruing to one party, or
some forbearance, detriment, loss,
or responsibility given, suffered,
or undertaken by another.' 17 Am.
Jur. 2d Contracts, Section 85. A
benefit to the promisor or a
detriment to the promisee is
sufficient consideration for a
contract. 17 Am. Jur. 2d,
Contracts, Section 96.
First National Bank v. Marietta Manufacturing
Co., supra, 151 W. Va. at 642, 153 S.E.2d at
177." (Citations omitted).
Footnote: 4See, e.g., Eales v. Tanana Valley Medical-Surgical Group, Inc., 663 P.2d 958 (Alaska 1983); Pugh v. See's Candies, Inc., 116 Cal. App. 3d 311, 171 Cal. Rptr. 917 (1981); Coelho v. Posi-Seal Int'l, Inc., 208 Conn. 106, 544 A.2d 170 (1988); Terrio v. Millinocket Community Hosp., 379 A.2d 135 (Me. 1977); Toussaint v. Blue Cross & Blue Shield, supra; Kestenbaum v. Pennzoil Co., 108 N.M. 20, 766 P.2d 280 (1988), cert. denied, 490 U.S. 1109, 109 S. Ct. 3163, 104 L. Ed. 2d 1026 (1989).
Footnote: 5Only two of the cases cited in note 4, supra, were not clearly based on factors other than oral statements by the employer. In Eales v. Tanana Valley Medical-Surgical Group, Inc., the employer "conceded that Eales' contract was for employment until retirement." 663 P.2d at 959. In Coelho v. Posi-Seal International, Inc., the court found an agreement that "as long as he performed his job properly, the plaintiff would not be terminated as a result of conflicts between Posi-Seal's quality control and manufacturing departments." 544 A.2d at 174. This finding was based on oral promises made to the plaintiff employee on several occasions by the company president and seemed to be almost conceded at trial.
Footnote: 6We also stated in note 4 of Williamson that:
"[E]ven if there is a showing of sufficient
consideration for a lifetime employment
contract, the employer does retain the right
to terminate a contract for lifetime
employment 'for cause.' Annot., 60 A.L.R.3d
226 § 2[a], at 236 (1974); see also 53 Am.
Jur. 2d Master and Servant §§ 49-59 (1970)."
___ W. Va. at ___, ___ S.E.2d at ___ (Slip
op. at 8).
While an implied permanent employment claim is not at issue here, even where such a claim has been proven, courts have concluded that economic necessity constitutes "just cause" for dismissal and that the employer may, therefore, lay off "permanent" employees for bona fide economic reasons. See, e.g., Boynton v. TRW, Inc., 858 F.2d 1178 (6th Cir. 1988); Sahadi v. Reynolds Chem., 636 F.2d 1116 (6th Cir. 1980); Coelho v. Posi-Seal Int'l, Inc., supra; Friske v. Jasinski Builders, Inc., 156 Mich. App. 468, 402 N.W.2d 42 (1987). Courts have also recognized that even where an implied employment contract is established, the employer may change or abolish it by specific notice to the employee. See, e.g., Dell v. Montgomery Ward & Co., 811 F.2d 970 (6th Cir. 1987); Rowe v. Montgomery Ward & Co., 437 Mich. 627, 473 N.W.2d 268 (1991); In re Certified Question, 432 Mich. 438, 443 N.W.2d 112 (1989).
Footnote: 7In employee handbook cases that have addressed the issue, promises to abide by seniority or to make employment decisions in accordance with established procedures are enforceable to the same extent as promises to discharge only for cause or for specified reasons. See, e.g., Crain Indus., Inc. v. Cass, 305 Ark. 566, 810 S.W.2d 910 (1991). See also Hepp v. Lockheed-California Co., 86 Cal. App. 3d 714, 150 Cal. Rptr. 408 (1978).
Footnote: 8With the additional factors of knowledge and implied acceptance of the practice by the parties, the rule is not unlike the one we pronounced with regard to the admissibility of habit evidence in Syllabus Point 14 of Rodgers v. Rodgers, 184 W. Va. 82, 399 S.E.2d 664 (1990):
"Under Rule 406 of the West
Virginia Rules of Evidence, evidence of a
person's habit must be shown to be a
regularly repeated response to similar
factual situations. The trustworthiness of
habit evidence lies in its regularity, such
that the act or response is shown to be
See 2 Wigmore on Evidence §§ 379, 381 (Chadbourn rev. 1979).
Footnote: 9The plaintiffs also rely on a statement made by the president of INCO at a meeting to explain the 1979 reorganization of the inspection department. A retired management official testified that he recalled questions from inspectors about retaining the bumping and bidding practice and overtime arrangement, to which the president reportedly replied, in effect, "Nothing has changed." They assert that this statement constitutes a promise from which a contract can be implied. Without deciding whether such oral promises may give rise to contractual rights, we note that the president's response can hardly be taken as a clear and unequivocal statement that in the event of an economic layoff, seniority would be the sole factor in determining who was laid off and who was retained, in the absence of any evidence of such a practice prior to 1979.