Wenzl v. Director

Craig W. WENZL v. DIRECTOR

E 96-211                                           ___ S.W.2d ___

                  Court of Appeals of Arkansas
                        DivisionS I & IV
               Opinion delivered December 22, 1997


1.   Unemployment compensation -- good cause defined -- what
     constitutes ordinarily a fact question. -- Good cause has been
     defined as a cause that would reasonably impel the average
     able-bodied, qualified worker to give up his or her
     employment; what constitutes good cause for leaving employment
     is ordinarily a question of fact for the Board of Review to
     determine from the particular circumstances of each case.

2.   Unemployment compensation -- factors on review -- substantial
     evidence discussed. -- On appeal, the findings of fact of the
     Board of Review are conclusive if they are supported by
     substantial evidence; substantial evidence is such relevant
     evidence as a reasonable mind might accept as adequate to
     support a conclusion; the appellate court reviews the evidence
     and all reasonable inferences deducible therefrom in the light
     most favorable to the Board's findings; even when there is
     evidence upon which the Board might have reached a different
     decision, the scope of judicial review is limited to a
     determination of whether the Board could reasonably reach its
     decision upon the evidence before it. 

3.   Unemployment compensation -- appellant left his job without
     making reasonable efforts to preserve job rights -- findings
     of Board supported by substantial evidence. -- Where
     appellant's superior said that he intended to give appellant
     back a route and see if he could handle it physically, but
     appellant resigned before the superior had an opportunity to
     find him a new route or to communicate his intentions to
     appellant, and appellant never inquired whether the company
     had any plans for returning him to a sales route of his own,
     the Board of Review's finding that appellant left his last
     work without making reasonable efforts to preserve his job
     rights was supported by substantial evidence. 


     Appeal from Arkansas Board of Review; affirmed.
     No brief filed.
     Phyllis Edwards, for appellee.

     Sam Bird, Judge.
     Appellant Craig Wenzl appeals a decision of the Board of
Review denying him unemployment compensation.  We find that the
decision of the Board of Review is supported by substantial
evidence; therefore, we affirm.
     Appellant worked for Anderson Merchandisers in a route-sales
job as a "rack jobber," one who takes the product into the store
and personally stocks and arranges the display of the product.  His
products were music, books, and videos, and his main customer was
Wal-Mart.  On June 30, 1995, appellant sustained severe injuries
when a tractor-trailer truck rolled down a hill and over his
company car.  He was off work for four months.  Appellant testified
that when he returned to work in October he was still experiencing
a lot of pain, and he found it hard to keep up with his job.  He
said the company had a trainee working his route while he was off
and helping him when he returned.  Nevertheless, none of his
merchandise had been ordered while he was out, and his route was in
a "real mess."   Appellant said he didn't have the energy or the
strength to deal with trying to get the route ready for the
holidays because it required working fast and carrying a lot of
merchandise.  
     Appellant also testified that his take-home pay was reduced
because the trainee was getting his commission.  Appellant said he
mentioned this to his sales manager without results.  At the time
of his injury, appellant said he was earning a salary of $1,300 a
month, plus a $1,122.99 commission.  When he returned to work after
his injury, he received a salary of approximately $1,384 a month
but no commission.  Historically, he had received his highest
commissions in November and December;  his commission check alone
for December 1994 was $1,702.08.  
     In January, appellant resigned.  He testified that his main
reason for resigning was his physical condition;  he simply was
unable to stand up to the physical requirements of the job.
Appellant also testified that he suspected he was going to be
fired.  He said when his manager, Bill Lutrell, wanted to speak
about his territory, Lutrell would talk to the trainee and ignore
appellant.  
     Lutrell testified that there appeared to be some confusion
about appellant's role when he came back with regard to the person
appellant called a trainee.  He said after appellant's accident,
the man was assigned appellant's territory and was no longer
considered a trainee.  He explained that when appellant returned to
work he was not assigned a territory because "he was not ready to
accept the territory, and he said so even himself."  Lutrell said:
     And the basic agreement was that when he was ready, and
     this was [what] we were planning after Christmas,
     sometime in January or February 1st, that he would be
     reassigned the territory, and since he was not assigned
     the territory, Todd [the man appellant called the
     trainee] was assigned the territory.  Todd did receive
     all the commissions for that.

Lutrell said appellant never complained to him about not getting
his commission, and that appellant did not give himself or the
company an opportunity to see if he could work a territory alone. 
Lutrell said it was his intention to assign appellant to a
territory around February 1 and give him some help to see if his
physical problems were temporary, and, if not, deal with it at that
time.  He said he never had any intention of firing appellant.   
     Arkansas Code Annotated section 11-10-513 (Repl. 1996)
provides in pertinent part:
        (a)(1) If so found by the director, an individual
     shall be disqualified for benefits if he, voluntarily and
     without good cause connected with the work, left his last
     work.
     . . . .

        (b) No individual shall be disqualified under this
     section if, after making reasonable efforts to preserve
     his job rights, he left his last work due to a personal
     emergency of such nature and compelling urgency that it
     would be contrary to good conscience to impose a
     disqualification or, if, after making reasonable efforts
     to preserve job rights, he left his last work because of
     illness, injury, pregnancy, or other disability.

Good cause has been defined as a cause that would reasonably impel
the average able-bodied, qualified worker to give up his or her
employment.  Teel v. Daniels, 270 Ark. 766, 606 S.W.2d 151 (Ark.
App. 1980).  What constitutes good cause for leaving employment is
ordinarily a question of fact for the Board to determine from the
particular circumstances of each case.  Ahrend v. Director, 55 Ark.
App. 71, 930 S.W.2d 392 (1996).  
     On appeal, the findings of fact of the Board of Review are
conclusive if they are supported by substantial evidence.  Ark.
Code Ann. 11-10-529(c)(1) (1987); Feagin v. Everett, 9 Ark. App.
59, 652 S.W.2d 839 (1983).  Substantial evidence is such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion.  Victor Indus. Corp. v. Daniels, 1 Ark. App. 6, 611 S.W.2d 794 (1981).  We review the evidence and all reasonable
inferences deducible therefrom in the light most favorable to the
Board's findings.  Feagin v. Everett, supra.  Even when there is
evidence upon which the Board might have reached a different
decision, the scope of judicial review is limited to a
determination of whether the Board could reasonably reach its
decision upon the evidence before it.  Id.; Perdrix-Wang v.
Director, 42 Ark. App. 218, 856 S.W.2d 636 (1993).  
     Appellant's superior, Lutrell, said he intended to give
appellant back a route around the first of February and see if
appellant could handle it physically.  However, appellant resigned
before Lutrell had an opportunity to find appellant a new route or
communicate his intentions to appellant.  Lutrell testified, and
appellant admitted, that appellant never inquired whether the
company had any plans for returning him to a sales route of his
own.
     The dissenting opinion relies upon Ladish v. Breashears, 263
Ark. 48, 563 S.W.2d 419 (1978), to support its contention that this
case should be reversed because appellant experienced a substantial
cut in pay.  But in Ladish the court recognized that the issue
presented was a question of fact, and, of course, it is well
settled that factual determinations of the Board of Review must be
affirmed if supported by substantial evidence.  Victor Indus.
Corp., supra.  The dissent's statement that when appellant returned
to work he received only 57% of his former pay is misleading.  The
record reveals that appellant actually experienced a slight
increase in his base salary (from a monthly average of $1,300 to
$1,384) after his return to work.  He did not, however, receive the
commissions on sales because the commissions were being paid to the
person who was assigned temporarily to take appellantþs place while
appellant was, admittedly, physically unable to do the job.
     The Board of Review's finding that appellant left his last
work without making reasonable efforts to preserve his job rights
is supported by substantial evidence. 
     Affirmed.
     Arey, Jennings, Rogers, and Griffen, JJ., agree.
     Roaf, J., dissents. 
             Andree Layton Roaf, Judge, dissenting.

     I would reverse this case and remand for an award of benefits
because I do not believe that the decision of the Board of Review
is supported by substantial evidence and because our case law
mandates an award of benefits where an employee leaves his job
because of a reduction in pay.  When Craig Wenzl returned to work
on October 30, 1995, after an on-the-job injury, he received only
57% of his former pay, and a þtraineeþ whom he understood had been
assigned to assist him was receiving his commissions.  Wenzl worked
two months without any clue from his employer that he would be
returned to his former status.
     Although Wenzlþs supervisor, District Manager Bill Luttrell,
testified that he had actually assigned this trainee to Wenzlþs
territory shortly after Wenzlþs accident, he never stated in the
hearing that he had informed Wenzl of this, and Wenzl testified
that he was never told this by Luttrell.  Wenzl then worked for two
months at approximately one-half of his former pay before
resigning.
     In Ladish Co. v. Breashears, 263 Ark. 48, 563 S.W.2d 419
(1978), the Board of Review found that Breashears left his job
because of reduction in pay and a reclassification to a lower
level.  The Board of Review then concluded that this caused the
work to become unsuitable and that Breashears left his last work
for good cause.  The Arkansas Supreme Court affirmed the action of
the Board of Review in awarding unemployment benefits.  See also
Jackson v. Daniels, 269 Ark. 714, 600 S.W.2d 427 (Ark. App. 1980)
(an act by the employer that does economic injury to the employee
may be þgood cause connected with the workþ); Carpenter v.
Director, 55 Ark. App. 39, 929 S.W.2d 177 (1996) (increased
distance and risk of travel and costs of gasoline reducing
appellantþs take-home pay was good cause to quit); and Morton v.
Director of Labor, 22 Ark. App. 281, 742 S.W.2d 118 (1987) (a
change in duties calling for less competence and lower remuneration
is cause for work to become unsuitable and good cause for
voluntarily quitting).
     Although Luttrell testified that he intended to give Wenzl
back his route around the first of February and see if he could
handle it physically, he did not communicate his intent to Wenzl
during the two months he worked at half pay or even when Wenzl
handed in his resignation.  Wenzl stated that he left his work for
two reasons: because his wages were cut a thousand dollars a month
and because he was having trouble physically meeting the demands of
the job.  Under our case law, these reasons constitute good cause
connected with the work.  Moreover, in Jackson v. Daniels, supra,
this court stated that because an employee who voluntarily leaves
his employment for good cause connected with the work is not
required to preserve his job rights, þwe attach no significance to
. . . the abruptness of the claimantþs departure.þ  
     The majority relies on Teel v. Daniels, 270 Ark. 766, 606 S.W.2d 151 (Ark. App. 1980), in which this court stated that good
cause is cause that would reasonably impel the average able-bodied,
qualified worker to give up his or her employment.  This standard
depends on the worker's perspective, at least impliedly, at the
time that he decides to give up his job.  An employer's future
plans, if not communicated to the worker by the time he makes his
decision, obviously do not and should not figure into the analysis
of whether the situation would justify the worker's decision to
quit.  Yet the Board of Review and the majority rely on the
employer's assertion that Wenzl was going to be assigned a
territory, to find that he did not leave his employment for good
cause.
     The majority has in essence created a "secret good intentions"
defense for employers to assert after they have driven an employee
out of a job.  Workers are left to the mercy of employers' good
faith not to claim secret good intentions, a precarious position if
it was the employer's bad faith that forced the employee to resign. 
For the foregoing reasons, I would reverse and remand to the Board
of Review for an award of benefits.