Unemployment insurance precedent decisions

              FOR E W 0 R D
Volume I contains decisions of the Arizon Unemploy­ment
Insurance Appeals Board which have been desig­nated
precedent decisions numbered PD-101 to PD-140,
inclusively. These decisions are compiled for pub­lication
in order to make them available for refer­ence
and use by the public, and by the Department of
Economic Security.
The decisions included will be followed by the Un­employment
Insurance Program, the Office of Appeals
and related activities within the Department regard­ing
similar questions of law and fact arising after
the publication of the decisions in this precedent
manual.
This manual will be reviewed periodically, and, as
appropriate, decisions will be deleted when, for
example, there has been a change in statute, case
law, or department regulation. Individuals or en­tities
who wish to receive notice of any such up­dates
should immediately request same in writing
from the Unemployment Insurance Precedent Committee,
giving their names, addresses, and number of copies
desired.
To afford ease of reference and use, the case heading,
format and citations have been standardized, the
titles of the parties have been capitalized, typo­graphical,
spelling and grammatical errors have been
corrected, and personal identifiers have been removed
with the exception of the surnames of individuals or
titles of entities. When the findings of fact of an
Appeal Tribunal were incorporated by the Board in its
decision by reference, they were reproduced within
brackets in the Board's decision to assure understanding.
This volume and published decisions are available for
a nominal fee, to defray the cost of publication and
distribution, from the Department's Authority Library
located at 1717 W. Jefferson, Phoenix, Arizona 85007,
(602) 255-4777.
To refer to a decision published in this volume, in­clude
names of the parties and the precedent number.
For example:
Doe v. Widget, Inc., PD-100
All inquiries concerning precedent decisions, other than
those regarding their purchase, should be directed to
the Arizona Unemployment Insurance Appeals Board, 34 w.
Monroe, Suite 800, Phoenix, Arizona 85003, (602) 255-3841.
i
VOLUME 1
TABLE OF CONTENTS
Forward . . . . . . . . . . . . . . i
Alphabetical Case Index
Table of Contents . . . .
Topical Index . . .
Precedent Decisions
. . . .
. . . . .
. . . . . .
ii
iii
1
. 327
DES
Authority Ubrary
810Z·1
ii
TOPICAL INDEX
(Decisions Nos. 101 - 140, Inclusive)
Topic Decision No.
ABLE AND AVAILABLE
ATTENDANCE AT SCHOOL OR TRAINING
Definition of student
Overcoming presumption of non­availability
. • . . . . . ..
Termination of student status
IN TRANSIT
Travel during holiday period . .
WAGES
Excessive wage demand
WORK SEARCH
Distance to work • . . . . .
Highly skilled professional
Limited due to lack of funds
Newspaper ads and telephone
inquiries .
BENEFIT CHARGES
FAILURE TO APPEAL DETERMINATION
OF CHARGEABILITY .
FAILURE TO SUBMIT TIMELY
SEPARATION INFORMATION .
BENEFITS
RETIREMENT AND PENSION BENEFITS
Assignment of
iii
PD-103
PD-1l7
PD-118
PD-116
PD-119
PD-120
PD-121
PD-115
PD-114
PD-129
PD-136
PD-136
PD-109
13
100
104
96
109
113
118
92
87
182
228
228
57
Topic
DISCRIMINATION
RETALIATION
Failure to establish . . . .
EMPLOYEE OR INDEPENDENT CONTRACTOR
SALES MANAGERS AND AGENTS AS EMPLOYEES
Factors determinative of
employee status ...
EMPLOYER
IDENTITY OF
Management control . . . . . . .
EVIDENCE
BURDEN OF PROOF
In administrative proceedings ..
Party fails to deny allega-tions
. . . . . . . . . . .
WEIGHT OF EVIDENCE
Hearsay
EXEMPT EMPLOYMENT
GOVERNMENTAL ENTITY
Exclusion not applicable
LIABILITY FOR PREDECESSOR CONTRIBUTION
LIMITS
Value of organization, trade,
business or assets acquired . .
MISCONDUCT
ABSENCE FROM WORK
Permission denied
DISCHARGE FOR COMPELLING PERSONAL
REASONS
iv
Decision No.
PD-125
PD-140
PD-139
PD-l11
PD-130
PD-ll 0
PD-137
PD-138
PD-107
148
277
259
67
187
62
234
248
45
Topic
MISCONDUCT Cont.
Reasonable alternatives
INSUBORDINATION
Decision No.
PD-131 193
Refusal of prospective
instructions ....
Reasonableness of instructions .
MANNER OF PERFORMING WORK
Customary standard of care
Exercise of ordinary care
Failure to complete work
timely
Negligent cash control .
NEGLECT OF DUTY
PD-105 33
PD-101 1
PD-104 23
PD-102 7
PD-122 124
PD-112 74
PD-106 39
Nonperformance of work • .
RELATION OF OFFENSE TO DISCHARGE
Failure to discharge promptly
(Condonation) .. . ..
Necessity of triggering
incident .....
TARDINESS
Repeated instances ...
VIOLATION OF COMPANY RULE
Cash control policy
Reasonableness of rule .
PROCEDURE
DUE PROCESS
No absolute right to in-person
hearing . • • • • .
\'
PD-123
PD-124
PD-132
PD-125
PD-106
PD-113
PD-133
131
139
204
148
39
80
210
UNEMPLOYME~T INSURANCE APPEALS BOARD
DEPARTMENT OF ECO~O~IC SECCRITY
STATE OF ARIZO~: ..\
Precedent Decision
~o. PD- 101
Formerly Decision No.
B-66-79 (AT 4340-79)
In th~ Matter of:
EICHER,
Claimant.
AND
DECISIO~~
REVERSED
DEL WEBB DEVELOPMENT,
Employer.
This matter is before the Appeals Board upon a petition for
review filed on behalf of the Employer through its representative.
The petition is based upon a decision issued by an Appeal Tribunal
on Ju:y 25, 1979 which held:
The determination of the deputy is reversed. The
claimant was discharged for reasons other than
misconduct in connection with the work, and no
penalty is applicable.
The Appeals Board has carefully examined the information and
the evidence contained in the file, and has reviewed the trans-cript
of the hearing held before the Tribunal, and from this
evidence finds:
The Claimant was employed as a heavy-duty mechanic for
approximately five months, on a full-time basis, at an hourly
wage of $8.65.
It is customary ~ractice that each mechanic in this
employment will clean and maintain his own work area. The
mechanics working for this Employer understand and accept that
premise.
On June 6, 1979 the date of the Claimant's separation,
there was no mechanic work immediately available for the Claimant
to perform. The one other heavy-duty mechanic was out in the
field on a job. The Claimant~ having no work to do, asked the
foreman what work he could do. The foreman requested the Claimant
to clean up the work area, which included the area of the other
mechanic who was' in the field. The Claimant responded that he
would clean up his 'own mess i
, but not the area of the other
mechanic, stating: "I am not a janitor". At this point, the
equipment superintendent, who had heard the shop foreman's
request and the Claimant's reply, advised the Claimant that
inasmuch as there was no work immediately available for him, he
should clean the general work area. Again, the Claimant's reply
was "I am not a janitor ••• I'll clean my mess up but I won't
clean Grigsby's (the other mechanic) mess up."
The Employer was unwilling to permit the Claimant to leave
for the day inasmuch as he could be needed for mechanical work
momentarily.
The Claimant admittedly refused to follow the instructions
given him by both the foreman and superintendent to clean the work
area, contending "I felt as if I was being used ••• to get me to
quit •••• I say because they are cutting down on forces is all.
And I wasn't going to be no janitor. I consider myself ••• pro­fessional
•••• So I am a diesel mechanic. I am not a janitor."
After refusing to clean the areas as instructed, the
2
superintendent discharged the Claimant.
It is uncontroverted that the Claimant was a capable mechanic
and, had it not been for this incident, would have continued kn
the employment. The Claimant, however, was not replaced.
The sole issue before this Board is whether the Claimant's
discharge was predicated upon "misconduct in connection with the
work."
'Misconduct', for the purpose with which we are here con-cerned,
is defined in pertinent part as follows:
Misconduct within the meaning of an unemployment
compensation act excluding from its benefits an
employee discharged for misconduct, must be an
act of wanton or wilful disregard of the employer's
interest, ••• a disregard of standards of behavior
which the employer has the right to expect of his
employee, ••• an intentional and substantial dis­regard
of the employer's interest or of the
employee's duties and obligations to the employer.
The Tribunal properly cited the applicable Benefit Policy
Rule, but failed in its application thereof in reaching its
decision. The applicable rule, R6-3-51255, cited by the Tribunal,
provides in pertinent part as follows:
1. An employer has the right to expect that reason­able
orders, given in a civil manner, will be followed
and that a supervisor's authority will be respected
and not undermined. There is no precise rule by which
to judge when a dispute with a supervisor constitutes
insubordination if insolence, profanity, or threats
are not involved. The pertinent overall consideration
is whether the worker acted reasonably in view of all
the circumstances. Some examples of insubordination
are:
a. Refusal to follow reasonable and proper
instructions; or
b. Insolence in actions or language,
profanity, or threats toward a
supervisor without due provocation;
or
3
c. Refusal to accept assignment to
suitable work.
The thrust of that rule as applied to the facts in the case
before us, is found in the following language contained therein:
1. An employer has the right to expect that
reasonable orders, given in a civil manner, will
be followed • ••• The pertinent overall consider­ation
is whether the worker acted reasonably in
view of all the circumstances. Some examples of
insubordination are:
a. Refusal to follow reasonable and proper
instructions.
The Tribunal did not address itself to the proper criteria.
The test is not whether the work was 'suitable' but, rather,
whether the Claimant refused to follow 'reasonable and proper
instructions' of the Employer. The Claimant was hired as a
heavy-duty mechanic at a wage of $8.65 hourly. This position
carried with it the accompanying responsibility to maintain a
clean work area. The Claimant accepted this responsibility as
a part of the employment. The occasion having presented itself
wherein the Claimant was temporarily without mechanical work, or
any other work to perform, the Employer requested that he clean
up the work area ordinarily used by another mechanic who was
otherwise occupied in the Employer's business. No reduction in
pay would inure to the Claimant fulfilling the request, nor,
would it be a detail foreign to the Claimant. The Claimant had
no other work to do at the time the order was given;
could have been accomplished quickly.
the work
The record is devoid of evidence which would support a find-ing
that the Employer's instructions to the Claimant were other
than reasonable. Likewise, there is no evidence suggesting
impropriety in the instruction.
4
Clearly, the Employer had every right, and certainly the
authority, to request the Employee perform a task in the pursuit
of the Employer's business.
assignment was unsuitable;
employment.
There is no question that the
the function was a part of the
Directing ourselves to consideration of 'whether the worker
acted reasonably in view of all the circumstances', consider the
definition of reasonable as found in Webster's New Collegiate
Dictionary:
Agreeable to reason; having the faculty
of reason; possessing sound judgment
In this light, consider the Claimant's statements in support
of his refusal: "I'll clean up my mess, but I TNon't clean up
Grigsby's." "I felt as if I was being used ••• to get me to
quit."; "I wasn't going to be no janitor."
It is notable that the Claimant was not replaced following
his discharge, a factor which may well be indicative of an
Employer's motive. In this case, however, the evidence does not
support a finding that the separation of the Claimant from the
employment concealed a purposeful personnel reduction;
trary, rather, in view of the evidence, is indicated.
the con-
Based upon the record and the evidence herein contained,
the conclusion is warranted that the Claimant was discharged for
misconduct in connection with the work in that the Claimant
refused, without good cause, to follow the reasonable and proper
instruction of his Employer.
DECISION
The decision of the Appeal Tribunal is reversed.
5
The Claimant was discharged for misconduct in connection
with the work and is disqualified from June 3, 1979 until
August 11, 1979, with a deduction of eight times his weekly
benefit amount ($680.00) from his total award.
The Employer's experience rating account shall not be
charged for benefits paid the Claimant as a result of this
employment.
This decision creates an overpayment because the Claimant
received benefits during part or all of the period of disquali-fication.
DATED this 10th day of November, 1979.
UNEMPLOYMENT INSURANCE APPEALS BOARD
Mary A. Bass, Chairman
E. D. Crowley, Member
Eugene R. Murray, Member
THIS DECISION DESIGNATED AS
A PRECEDENT DECISION BY THE
DEPARTMENT OF ECONOMIC SECURITY
ON May 18. 1982.
6
UNEMPLOY~ENT INSURANCE APPEALS "nARD
DEPARTMENT OF ECONOMIC SECUnTTY
STATE OF ARIZO~;\
Precedent Decision
~ o. PD- 102
Formerly Dec is ion ~;).
B-341-79 (AT 5442-79)
In the ~l a t t e r
GORDON.
0 .1.. :.·
Claimant.
AND
DECISIO~~ ------
AFFIRMED
CITY OF PAGE,
Employer.
THE EMPLOYER petitioned for review of the Tribunal's decision
issued October 2, 1979, which held the Claimant's discharge was
not disqualifying and that the Employer's account shall be subject
to charges for benefits paid the Claimant.
The Board has carefully reviewed the entire record in this
matter. including the transcript and exhibits.
raised in the petition have been considered.
The contentions
THE BOARD FINDS the following salient facts:
The Claimant had worked as a building inspector for a city in
Arizona approximately three years before his discharge on May 25~
1979. The discharge was due to an error he had made in approving
construction which was in violation of the city's building code.
One of the Claimant's duties as building inspector. was to
make on-site inspections of new residential construction for the
7
purpose of ensuring compliance with the city's building and
zoning code. The city has a building code requirement which
provides residential homes must have at least a ten-foot set­back
from the side property line.
In the fall of 1978, the Claimant made an inspection of a
construction site, and, based upon that inspection, authorized
the laying of the foundation of a residential home. The foun-dation
was, in fact, approximately two and one-half feet from
the side property line, rather than the prescribed ten feet.
He determined that the proposed foundation had the proper set­back
by sighting along metal pins which he assumed represented
the property corners. The error in the Claimant's sighting
occurred because the pin he relied upon as indicating the
northeast corner of the property was, in fact, a pin marking a
change from a curved boundary to a straight-line boundary. The
Claimant found no other pin in that location and assumed this
was the property corner pin. The pin which correctly marked the
property corner was missing on the day the Claimant examined the
property; the property corner was accurately (sic) approximately
nine and one-half feet from the pin th-e Claimant used.
The foundation contractor was also present at the site when
the Claimant made his inspection. Evidence was presented show­ing
that the foundation contractor also believed that the pin
marking the change in bounderies was the true northeast corner
pin. The Claimant testified he relied on the representation of
the foundation contractor that this was the corner pin. The
Claimant further testified that when the pins seem to be in
8
·.
proper position, it is his custom to make a visual inspection of
the site to determine whether there are proper setbacks. Thus,
since the pins seemed properly placed on this particular site,
he made only a visual inspection, and determined therefrom that
the foundation was of the required setback.
The Employer alleged that the Claimant had made an error in
the setback of a mobile home in 1977 by making a visual inspec­tion,
and therefore should have been on notice that visual in­spection
was not an acceptable nor accurate method of determin­ing
the proper setback. The Claimant denied that he was under
a duty to inspect that mobile home for setback.
It is undisputed that the work performance of the Claimant
~s satisfactory until the discovery of the setback error and
resultant discharge. It may be noted that the error did not
surface until approximately eight months after its commission.
An Employer's witness, the Assistant Building Inspector
for the city, testified that inspectors do not routinely survey
the land to determine the proper setback. He further testified
he assumes that pins and stakes are placed properly when he
goes out to inspect a site, and when he finds pins in the ground,
he makes only a visual inspection to determine whether there is
compliance with the setback requirement.
A building inspector for Flagstaff, who was familiar with
the building site in question, testified that he would not have
handled the inspection any differently than had the Claimant.
He also testified that he frequently relies on the building con­tractor's
representation as to what constitutes the corner pin.
9
The error committed by the Claimant, in his inspection of
the site did not come to the attention of the City Manager until
May, 1979. The Claimant was thereupon discharged solely on the
basis of that error.
Department Regulation A.C.R.R. R6-3-5l300 provides in part:
A.l. A worker has the implied duty of performing his
work with ordinary care and diligence and of
making reasonable efforts to live up to such
standards of performance as are required by his
employer. Misconduct generally arises when a
worker knowingly fails to exercise ordinary
care in the performance of his duties.
2. "Ordinary care" means that degree of care which
persons of ordinary prudence are accustomed to
exercise under the same or similar circumstances,
having due regard to his or others' rights and
safety and to the objectives of the employer.
This standard is general and application will
vary with the circumstances. For example, the
ordinary care expected of a precision engineer
will vary considerably from the care expected of
a ditch digger. The accepted standard of perfor­mance
establishes what is ordinary care.
3. This does not mean that every claimant discharged
because of unsatisfactory work performance is
subject to disqualification. In the absence of
gross carelessness or negligence, or recurrence
of ordinary carelessness or negligence, the claim­ant's
failure to perform his work properly is pre­sumed
to be attributed to good faith error in
judgment, inability, incapacity, inadvertence, etc.
A conscientious employee may be unable to perform
his duties to the satisfaction of his employer
because of limited mental capacity, inexperience,
or lack of coordination. If such person is dis­charged
for unsatisfactory work his discharge
is not for misconduct.
Department Regulation A.C.R.R. R6-3-5ll90(B)(2)(6) provides in
pertinent part:
When a discharge has been established, the
burden of proof rests on the employer to show
that it was for disqualifying reasons. this
10
burden may be discharged by an admission by
the claimant, or his failure or refusal to
deny the charge when faced with it.
Since a discharge has been established, the burden of proof
rests on the Employer to show that it was for disqualifying
reasons.
A witness for the Employer testified that the Claimant had
previously committed an act of negligence which was similar to
the act which caused his present discharge. The Claimant
denied he was negligent in the previous instance. There is
clearly insufficient evidence to relate the alleged prior in-cident
in establishing a recurrence of negligence on the part
of the Claimant. Therefore, unless the mistake that precipi-tated
his discharge was one of gross carelessness or negli-gence,
his discharge is not for misconduct under the benefit
policy rules.
Gross negligence is defined as "the intentional failure to
perform a manifest duty in reckless disregard of the conse-quences
as affecting the life or property of another. It is
materially more want of care than constitutes simple inadver-tence.
It is an act or omission respecting legal duty of an
aggravated character as distinguished from a mere failure to
exercise ordinary care. It is very great negligence, or the
absence of slight diligence, or the want of even scant care •
..• Gross negligence is a manifestly smaller amount of watchful-ness
in circumspection than the circumstances require of a
person of ordinary prudence •••• That entire want of care which
would raise the belief that act or omission complained of was
1 1
the result of conscious indifference to the rights and welfare
of persons affected by it" (See Black's Law Dictionary, 5th Edition'
The Claimant made a visual inspection of the lot in ques-tion
by sighting along the pins in the ground. He also testi-fied
that he relied on the representation of the foundation
contractor as to which pins marked the corners. The evidence
establishes that building inspectors customarily followed
these practices.
The record eminently supports a conclusion that the Claim-ant's
error was not due to conscious indifference to the rights
and welfare of his Employer and others. The Claimant exercised
that standard of care which was customary in his capacity and
in his occupation. The Tribunal properly concluded that the
Claimant's discharge was not disqualifying.
DECISION
The decision of the Appeal Tribunal is affirmed. The
Claimant's discharge was for reasons other than misconduct in
connection with the work.
The Employer's experience rating account shall be subject
to charges for benefits paid the Claimant as a result of this
employment.
DATED this 25th day of February, 1980.
UNEMPLOYMENT INSURANCE APPEALS BOARD
Mary A. Bass, Chairman
E. D. Crowley, Member
Eugene R. Murray, Member
THIS DECISION DESIGNATED AS
A PRECEDENT DECISION BY THE
DEPARTMENT OF ECONOMIC SECURITY
ON May 18, 1982.
) 2
UNEMPLOYME~T I~SURANCE APPEALS nOARD
DEPARTMENT OF ECONO~IC SEerRITY
STAT E OF AR 120:::\
Precedent Decision
xo. PD- 103
Formerly Decision ~:o.
B-I110-80 (AT 7438-80)
In the Matter of:
HAPP,
Claimant.
DECISIO:~
REVERSED
THE CLAIMANT has petitioned for review of the decision of
the Appeal Tribunal which held that the Claimant was unavailable
for work and ineligible for unemployment insurance from
August 24, 1980, through October 4, 1980.
After initial review of this matter, the Appeals Board, by
its order dated January 23, 1981, ordered that additional evi-dence
be taken by the Appeal Tribunal. Pursuant to this order,
a further hearing was held on February 11, 1981, at which time
the Claimant and a witness for the Department of Economic Secu-rity
appeared and testified.
This matter is again before the Board. The entire record
herein has been carefully reviewed, including the transcripts
and the exhibits. The contentions raised in the petition have
been considered~
The findings of fact, as determined by the Appeal Tribunal,
13
contain no material error and are therefore adopted by the Board
as its own [as follows].
[The claimant graduated from high school in 1976.
Thereafter, he began attending college on a
regular full-time basis. He had a full-time
student status through May of 1980. In August
of 1980, he re-entered school. He is regis­tered
for seven hours. Additionally, he is
finishing seven additional incomplete hours.
He attends class Monday, Wednesday, and Friday,
from 7:40 to 10:30 a.m. His make-up classes
require that he study and take tests. The
make-up tests are in classes that extend through
11:30 a.m.; however, adjustments can be made
with respect to the make-up tests.
Since the second quarter of 1979 (the begin­ning
of the claimant's base period) he has
been working both as a student employee at
the university he is attending and as a part­time
worker with an outside employer. The
aggregate of the two jobs did not serve to make
him a full-time employee while attending school.
The claimant's primary interest is in the com­puter
field, and his recent employment has been
in this type of work. Previously he has done
work as a grocery store stock and courtesy
clerk. The claimant has sought employment
through government agencies; he has contacted
some private employers in the computer field.
He contacted one small grocery chain.
The claimant obtained student work
university where he is attending.
ing on that job 20 hours per week.
to graduate in May 1980.]
through the
He is work­He
expects
with the following additions which reflect additional evidence
presented at the evidentiary hearing ordered by the Board:
During the six-week period from August 24, 1980
through October 4, 1980, the Claimant testi­fied,
his job search was focused upon full-time
employment in the computer field and delivery
jobs. Every Monday, Wednesday, and Friday he
would check the job board at a local university
for job openings. He testified that each time
he checked the job board he woul~ find at least
three, and sometimes as many as seven openings
for either delivery or computer work. He would
14
then contact these employers by telephone to set
up personal appoi~tments for Tuesdays and
Thursdays. He testified that most of these
positions would be filled when he contacted the
employer, or more work experience tha~ he had
was required. He also checked personally with
the State Job Service and State hiring facility
twice a week, and submitted an unspecified num­ber
of applications there for review by poten­tial
employers. On the Employment Service
registration form the Claimant indicated he
preferred to work after 12:00 noon. An
employee of the State Job Service testified
that given the Claimant's preference, no
referrals would be made for the Claimant for
employment which required him to work during
the morning hours. No referrals were forth­coming
from Job Services. He also checked the
Sunday newspaper want ads for openings, which
resulted in three personal contacts with poten­tial
employers.
The Claimant telephoned every messenger service
listed in the yellow pages of the telephone
book. No full-time job openings were located
as a result of this effort. All but one of
these employers refused to accept an appli­cation.
The Claimant was offered a part-time
job with this employer; however, the Claimant
declined, and accepted another part-time
computer job at the local university. He
testified that most of the other delivery jobs
for which he applied required either a reliable
car, which he did not have, or heavy lifting.
He stated he accepted part-time employment
because he was desperate for income.
The Claimant testified he had a back injury
and therefore cannot now work at a job which
requires heavy or constant lifting. He testi­fied
he has applied at only one convenience
market and no grocery stores, because these
jobs require such lifting.
His mother is an office manager at the one
chain convenience market at which the Claimant
submitted an application. His mother believed
she might be influential in locating a position
for the Claimant which did not require heavy
lifting, but she later declined to exert her
influence on his behalf because of a subse­quent
series of robberies which, she decided,
made such work unsafe.
The Claimant testified that most of the
employers he contacted required more experience
15
in clerical skills than he possessed. The
Claimant testified he did not send out
resumes to potential employers.
A State Job Service representative testified
work is available for the Claimant for the
hours he prefers, and that the second shift
(afternoon and evening hours) was preferred
by many employers for entry-level workers in
the computer field. She testified other
employers had various shifts available.
She also testified that sending out resumes
to potential employers, as well as contact­ing
associates and friends concerning job
openings, checking the job board at the
local university, following up on newspaper
want ads and checking with the Job Service,
were the customary methods of obtaining
work in the computer field. She stated that
job openings were sparse (during the time
considered), for unskilled workers such as
delivery positions.
Throughout the six-week period in question,
the Claimant made nine personal contacts
with potential employers, plus bi-weekly
personal contacts with the State Job Service.
The Claimant obtained part-time work in the
computer field, and testified that he was
continuing his search for full-time work.
The Claimant had about one year and two
months' part-time experience in the computer
field prior to the period in question. He
testified that, although he preferred to
complete his classes and acquire a degree,
such was not more important to him than
working full time. He indicated that a
degree was not of great importance in his
field, and even if he could not complete his
classes, he would probably receive credit
for -the class work already completed. The
Claimant had about $350 invested in school
for tuition and books during the period in
question. He would have adjusted his
schedule to fit around his work hours. The
previous semester he received incompletes
in two classes because of his inability to
attend them due to employment requirements.
The university the Claimant was attending
considered 12 credit hours per'semester as
full-time attendance.
16
Depart~ent regulation A.C.R.R. R6-3-5205 provides in pertinent part:
A.R.S. § 23-771 of the Employment Security Law
of Arizona provides in part:
An unemployed individual shall be eligible to
receive benefits with respect to any week only
if the department finds that:
* * *
3. He is able to work, and is available
for work.
* * *
2. Availability for work is defined as the
readiness of a claimant to accept suitable
work when offered. To fulfill this require­ment
all the following criteria must be met:
a. He must be accessible to a labor market
b. He must be ready to work on a full-time
basis
c. His personal circumstances must leave him
free to accept and undertake some form of
full-time work
d. He must be actively seeking work or
following a course of action reasonably
designed to result in his prompt reem­ployment
in full-time work.
3. The criterion is availability for work,
rather than availability of work. The will­ingness
or unwillingness of employers to hire
is not relevant to the issue.
4. The term 'work' means suitable work (work
which is in a recognized occupation, for which
the claimant is reasonably fitted and which he
does not have good cause to refuse).
5. Availability for work is a relative term.
The objective of availability is to determine
if a claimant is genuinely and regularly
attached to the labor market. Availability
for work also is the relationship between the
restrictions imposed upon a claimant and the
job requirements of the work which he is
qualified to perform. It implies that restric=
tions do not unduly lessen the possibilities
17
of his accepting suitable work. Unreasonable
restrictions which substantially limit employ­ment
opportunities result in unavailability.
(Whether the restrictions are unreasonable
depends upon their source, as well as their
effect upon the possibilities of employment.)
A.C.R.R. R6-3-180S(B) states:
An individual is presumed to be unavailable
for work for any week of unemployment if
such individual is a student; provided, how­ever,
that such presumption may be rebutted
upon a showing to the satisfaction of this
Department that such individual was, in fact,
available for work. For purposes of this
Regulation, a student is an individual who
is registered for full-time attendance at,
and regularly attending an established school,
college or university, or similar institutions
for academic learning, or who has so attended
during the most recent regular term (emphasis
added).
This benefit policy rule defines an individual as a student only
where:
(1) that individual is registered for full­time
attendance, and
(2) regularly attending such classes.
The university at which the Claimant was registered defines
full time as 12 semester credit hours. Here, the Claimant was
only registered for 7 semester credit hours. Although he was
also completing 7 semester hours of incompletes, he was not
required to attend any classes in order to complete such credit.
Therefore, such courses did not restrict the hours he was avail-able
for work. Thus, we find that the Claimant was not a full-time
student within the meaning and intent of the Employment
Security Law.
The Claimant's availability for work must be decided in
accordance with A.C.R.R. R6-3-S240(A)(S), which states:
Part-time school attendance does not necessarily
18
affect a claimant's availability for work, if
it is shown that the schooling is only inci­dental
to full-time e~ployment and there is a
reasonable expectancy that he may obtain full­time
work for which he is qualified during the
hours he is free to accept such work. Whether
the claimant could or would, if necessary,
change his school hours to accept full-time
work; whether he has invested a substantial
amount in tuition, fees, or in special equip­ment;
or whether he will lose credit if he
leaves before the completion of the course are
important factors in determining his avail­ability.
A claimant who leaves full-time work to enroll
for part-time schooling renders himself
unavailable for work during the period he is
attending school because he has shown school­ing
is not incidental to full-time employment.
Pursuant to this benefit policy rule, the Claimant is required
to show:
A. That his schooling is incidental to full­time
work, and
B. There is a reasonable expectancy that he
can obtain full-time work for which he is
qualified during his free hours.
The following factors must be considered:
1. Whether the Claimant would, if necessary,
rearrange his class schedule to accommo­date
his work.
2. The amount the Claimant has invested in
his schooling.
we have previously held that the key criterion is whether
the Claimant can obtain full-time work fo~ which he is qualified
during his free hours. The evidence of record reveals that, in
the Claimant's field of computer work, work was available during
the second shift afternoon and evening hours, and that some
employers preferred workers at the Claimant's experience level
to work the second shift hours rather than the firs~ shift morn-ing
and afternoon hours.
19
The evidence reflects that, although the Claimant preferred
to complete his classes, his main objective was to establish
himself in a position in the computer field, and would give up
his classes or reschedule them to accomplish his goal of work-ing
full time in his field.
Thus, we find that the Claimant's school attendance did not
cause him to be unavailable for work within the meaning and
intent of the Employment Security Law and applicable benefit
policy rules.
The remaining ~ssue for our consideration is whether the
Claimant:s work search was adequate. Eligibility for benefits
is not established by a showing of a passive willingness to
work.
A.C.R.R. R6-3-52160 provides:
Effort to secure employment or willingness to
work (able and available)
A.I. In order to maintain continuing eligi­bility
for unemployment insurance a claimant
shall be required to show that, in addition
to registering for work, he has followed a
course of action reasonably designed to
result in his prompt reemployment in suitable
work. Consideration shall be given to the
customary methods of obtaining work in his
usual occu ation or for which he is reasonabl
sU1ted ••• emphas1s added.
The applicability of the above-cited benefit policy rule is
not subject to any hard and fast standard, and the adequacy of a
Claimant's work search must be determined on a case by case
basis. A Claimant must act in good faith and make a reasonable
and active search for work. Indicative of the Claimant's good
faith is evidence as to efforts which he has made in his own
behalf to obtain work.
20
Here, we have evidence that the Claimant actively sought
out those positions available by checking the want ads, the
job board at a local university twice weekly, and reporting
to the State Job Service. He focused his efforts on a variety
of jobs for which he might be qualified. Even though he did not,
during the period in question, send out resumes to prospective
employers, his remaining efforts closely paralleled those
efforts which were considered by a State Job Service represen­tative
to be the customary method of obtaining employment in the
Claimant's field.
We do not find that the Claimant's acceptance of part-time
employment is persuasive evidence that his interest in working
was confined exclusively to part-time work. The evidence reveals
that his acceptance of such ~ork arose because of a need for
income, and that he continued to seek full-time work.
The Board, considering all of the circumstances of this case,
finds the Claimant's efforts constituted a reasonable effort to
become reemployed. We find the Claimant was available for work.
DECISION
The decision of the Appeal Tribunal is reversed.
The Claimant was available for work and eligible for benefits
2 1
from August 24, 1980 through October 4, 1980, if otherwise
qualified.
DATED this 26th day of March, 1981.
UNEMPLOYMENT INSURANCE BOARD
Mary A. Bass, Chairman
E. D. Crowley, Member
Eugene R. Murray, Member
THIS DECISION DESIGNATED AS
A PRECEDENT DECISION BY THE
DEPARTMENT OF ECONOMIC SECURITY
ON May 18, 1982.
22
UNEMPLOY~E~T I~SURANCE ADPEAL~ HOARD
DEPARTMENT OF ECONO~IC SECrnITY
STATE OF ARIZOXA
Precedent Decision
:: o. PD- 104
Formerly Decision No.
B-1357-8U (AT 7144-80)
In the Matter of:
DOMINGUEZ,
Claimant.
AND
DECISI01~
REVERSED
CITY OF PHOENIX,
Employer.
THE EMPLOYER has petitioned for review of the decision of
the Appeal Tribunal which held the Claimant was discharged for
reasons other than misconduct connected with the work.
The Appeals Board has carefully reviewed the record in this
case, including the exhibits and the transcript.
raised in the petition have been considered.
The contentions
We find no material error in the findings of fact, which are
substantially undisputed. We therefore adopt the Tribunal's
findings of fact as our own. [The Appeal ~ribunal decision con-tains
the following findings of fact]
[The claimant had approximately one and one-half years'
employment with "X" City. He was in his last job as
a groundskeeper approximately six months. At the time
of his separation he worked as a lawnmower operator on
a crew supervised by M. "A", a Foreman I.
23
By regular practice the claimant and other workers
were transported to the job site in a city vehicle.
Also by regular practice the crew members in the
claimant's crew left their lunch pails in the truck
which was regularly used by Mr. A. Generally the
truck was at the work site during break time at
9:00 a.m. and at lunch time at 11:30 a.m. However,
on certain occasions, because of business matters,
Mr. A would be away from the job site at these
times and this resulted in an off-scheduled break
time or lunch time for the workers.
On or about July 14, 1980, the claimant and the
crew had been transported to the work site. The
claimant became aware that Mr. A was planning to
leave with the truck. Knowing that he wished to
eat something from his lunch pail the claimant
removed it from the truck. Mr. A observed the
claimant removing the lunch pail from the truck
and he directed the claimant to return it. The
claimant resisted verbally. Mr. A got out of the
truck and ordered him to return the lunch box to
the truck. He refused. Due to the action of
either one or both of the parties they moved very
close to one another (in testimony each contend­ing
it was the other). At SOme point the claimant
demonstratively and at least with some force poked
his finger into the chest of Mr. A. Mr. A then
struck the claimant on the nose (accidentally with
little force, by Mr. A's testimony; deliberately
and with full force by the testimony of the
claimant). Both testified that the other agitated
for a fight.
Mr. A finally directed the claimant to get into
the truck so that he could be taken to higher
supervision for resolution of the matter. The
claimant refused. Mr. A went to Mr. "B", his
supervisor, (a Foreman II). Mr. B returned with
Mr. A to the job site. Mr. B reviewed the matter
with the claimant and Mr. A, but made no specific
decision on the matter.
On or about July 16, 1980, a meeting was held in
which the claimant and Mr. A gave their respective
accounts of the confrontation. Thereafter, the
claimant was given a third written warning, which
made him vulnerable to discharge, which was carried
out on July 18, 1980. Written warnings which the
claimant had received prior to the incident of
July 14 concerned matters unrelated to the July 14
incident.]
In the petition, the Employer, through its representative,
contends misconduct has been established by virtue of the
24
Claimant's refusal to comply with the orders of his foreman, and
his violation of an accepted rule.
Briefly, the salient facts center on a situation which arose
when the Claimant was given a direct order by his foreman, which
he disobeyed. The Claimant, a groundskeeper, was assigned to
mowing grass on city property; he, as well as his fellow workers,
was transported to the place of work in a truck and disembarked.
The Claimant removed his lunch box from the truck and was
ordered by his foreman to replace it. He refused.
Because of his refusal to replace his lunch box, the fore-man
ordered the Claimant to get in the truck and accompany him
to see the supervisor. Again, the Claimant refused. Tempers
flared, and a physical altercation occurred as a result of this
episode, wherein both parties participated.
The Claimant does not dispute that he refused to comply
with the orders of his foreman (Tr. pp. 60, 63).
The following testimony provides insight:
[11s. Lumm]
"Q Could you tell us why he's no longer
working for the City of Phoenix?
[Foreman]
A He refused to take a direct order.
I gave him a direct order and he
refused to do it.
Q ~hen did this take place?
A On July 14th at 6:30 in the morning.
Q What direct order did you give him?
A I told him to place his lunch box
in the truck because it wasn't lunch
time and it wasn't break time.
Q Is it - why would you ask him to
25
place it in the pickup truck?
A Because that's where we always keep
our lunch and he was going to be
mowing grass, and in no way he can
be carrying his lunch and pushing
the mower at the same time.
Q Do you have any idea why he would
have gone up to take the lunch box
out of the truck?
A Well, I had got complaints before
from the other men that work with
the man that as soon as I would
leave the man would sit down and
eat his lunch. And that was one
reason why I told him to keep his
lunch in the truck, because every­one
else kept it on there and it
wasn't break time or lunch time.
(Tr. pp. 8,9).
* * *
Q How exactly did you phrase your
instructions to him?
A I told him not to - I said, leave
your lunch in the - I told him to
leave his lunch in the truck
because it wasn't break time and
it wasn't lunch time.
Q What time was break time scheduled?
A 9:00.
Q And lunch time scheduled at what
time?
A 11:30.
Q And for you to go pick up this mower,
how long - had you done this type of
thing before from the job locations?
A Yes.
Q How long does it typically take?
A 20 to 30 minutes over there, and it's
about 20 minutes over there, 10 minutes
to load it up and then 20 minutes back •.
26
Q And did Mr. Dominguez make any response
at all when you asked him to returri the
lunch box to the pickup truck?
A He said that he didn't have to do any­thing
I tell him to do, it's just
because I had a white shirt on I wasn't
a foreman. He didn't have to do it.
Q Did you ask him - what happened from
there?
A Then he said - well, that's when well,
when I asked him to put it back he said
he didn't have to do it. Then I told
him to get in the truck because I was
going to take him back into the office.
and -
Q Why - lim sorry - why were you going to
take him back into the office?
A Because he didn't want to do what I
told hi!l.1. I did t eli him toput h.j s
---funch -box in there;- and then I said,
well~ get in the truck so - that way
he can go and talk to the foreman, the
one who worked as a supervisor - and he
refused to get in the truck.
(Tr. pp. 10, 11).
* * *
Q Mr. Navarro, are there any rules that
prohibit an employee from taking his
lunch pail from the pickup truck?
[Foreman]
A Not that I know of.
Q Are there any standing orders at the
service center that prohibit an
employee from taking his lunch pail
from the pickup truck?
A I don't know. (Tr. p. 17).
*
[Mr. Banda]
* *
Q Do you, Mr. Navarro, know ~hy he refused
27
that direct order?
A No. (Tr. p. ]8).
* * *
Q Have you ever given a direct order
to any of the other employees that
work with you to leave their lunch
pail on the pickup truck?
A No, because they all lesve it in the
truck." (Tr. p. ]8).
The claimant testified as follows:
[Mr. Banda]
"Q Had you ever taken your lunch box
with you before?
A Never.
Q That was the very first time?
A Yeah, that was the first time.
(Tr. p. 63).
[Ms. Lumm]
* * *
Q Mr. Dominguez, why would you not
go back in the truck to the main
office with Mr. Navarro?
A Well, the reason I didn't go back
with him to the office is because
we had already exchanged words.
[Ms. Lumm]
Q If you felt Mr. Navarro should not
make you leave your lunch on the
truck, couldn't you have talked to
a higher supervisor about it by
going back to the office?
A He wants me to explain - could you
ask the question again?
[Mr. Mason]
A All right, could you repeat the
28
question again, please?
[Hs. Lumm]
Q If you felt Mr. Navarro did not have
the right to make you leave your
lunch pail in the truck, then
couldn't you have talked to a higher
foreman by going to the office?
[Hr. Delgadillo]
A Yes, that's right. (Tr. pp. 63,64).
*
[Hearing Officer]
* *
Q Did you tell Mr. Mills through the
interpreter that the lunch box was
yours and that you wou~a do with it
what you wanted to do?
[Claimant]
A Well, I told him that I wanted to
keep my lunch pail because some­times
the foreman would leave and
wouldn't come back until after the
break time.
Q How was he planning to eat and con­tinue
to work? How were you plan­ning
to eat and continue to work?
A I always had an apple in my lunch
box, and I could do that - I could
eat it and work at the same time.
Q Had he - had you done this before?
A I've never done it before.
Q Not having done it before, how did
you know that you could do this
without having a problem with work?
A I wasn't going to do it exactly
while I was working, but in case
that break time come up and my
lunch box wasn't there that's why
I kept it." (Tr. p. 65).
The question which is thus prese~ted is not whether the
foreman had authority to take possession of the Claimant's
29
lunch box, but, rather, whether the conduct of the Claimant in
refusing to return the box to the truck, and, additionally,
refusing to join the foreman to seek supervisory resolution,
constituted misconduct, i.e., insubordination.
A.R.S. § 23-619.01 provides in applicable part:
Misconduct connected with the employment;
wilful misconduct
A. "Misconduct connected with the
employment" means any act or omission
by an employee which constitutes a
material or substantial breach of the
employee's duties or obligations
pursuant to the employment or con­tract
of employment or which
adversely affects a material or
substantial interest of the employer.
B. "Wilful or negligent misconduct
connected with the employment"
includes, but under no circumstances
is limited to, the following:
* * *
4. Insubordination, disobe-dience,
repeated and inappro­priate
use of abusive language,
assault on another employee or
repeated fighting, refusal to
accept an assignment to work at
certain times or to perform
certain duties without good
cause, refusal to follow reason­able
and proper instructions
given by the employer, or inten­tional
or negligent destruction
of the employer's property.
The administrative rule applicable herein provides:
R6-3-51255
Insubordination.
A.C.R.R.
1. An employer has the right to expect that reason­able
orders, given in a civil manner, will be
followed and that a supervisor's authority will be
respected and not undermined. There is no precise
rule by which to judge when a dispute with a super­visor
constitutes insubordination if insolence,
30
profanity, or threats are not involved. The
pertinent overall consideration is whether
the worker acted reasonably in view of all the
circumstances. Some examples of insubordina­tion
are:
a. Refusal to follow reasonable and
proper instructions.
The foreman, it may be pointed out, did not 'take posses-sion'
of the Claimant's (or any of the workers') lunch box. The
truck was simply the repository.
between possession and deposit.
There is a clear distinction
In view of the customary practice of leaving the lunch
boxes in the truck, and the acceptance and acquiescence in this
practice by all the workers, including the Claimant, coupled with
the lack of opportunity to eat while working, we cannot concur in
the finding that the foreman's instruction was unreasonable or
improper.
Not to be ignored is the second refusal to resolve the
first. There can be no doubt that the volatile circumstance
initially created might well have been resolved by submitting the
question to a supervisor. The foreman recognized this. The
Claimant should have. The Claimant's refusal to join in an
attempt to resolve an obviously work-connected problem is mani-fest
insubordination; the foreman's order to 'see the super-visor'
was, in all respects, reasonable; it constituted an
immediate attempt to air an immediate problem which, if delayed,
could further affect the Employer's interests in the accomplish-ment
of the scheduled work as well as the reaction and attitude
of the crew members.
The Claimant's refusal in this regard, standing alone, con-stitutes
insubordinate behavior.
3 I
The Board finds that the Claimant wilfully disobeyed lawful
and reasonable orders of his foreman, constituting misconduct
connected with his employment.
DECISION
The decision of the Appeal Tribunal is reversed.
The Claimant was discharged for misconduct in connection
with the work and is disqualified from July 27, 1980 until
October 4, 1980, and his total award reduced $720, eight times
his weekly benefit amount.
This decision creates an overpayment if the Claimant was
paid benefits during all or part of the period of disqualifi-cation.
DATED this 12th day of June, 1981.
UNEMPLOYMENT INSURANCE APPEALS BOARD
Mary A. Bass, Chairman
Eugene R. Murray, Member
Robert D. Sparks, Member
THIS DECISION DESIGNATED AS
A PRECEDENT DECISION BY THE
DEPARTMENT OF ECONOMIC SECURITY
ON May 18. 1982 .
32
UNEMPLOY~ENT INSURANCE APPEALS BOARD
DE?ARTMEN~ OF ECONO~IC SECCRITY
Precedent Decision
No. PD- 105
Formerly Decision No.
B-224-81 (AT T-153-81)
In the ~1 at t e r
O'REGAN,
O .~.'.
Claimant.
AND
DEC I S ION
REVERSED
MATTHEWS CHEVROLET,
Employer.
THE EMPLOYER has petitioned for review of the decision of the
Appeal Tribunal which held the Claimant was discharged for reasons
other than work-connected misconduct.
The Appeals Board has carefully reviewed the record in this
case, including the exhibits and the transcript.
raised in the petition have been considered.
The contentions
In the petition, the Employer contends the Claimant's dis-charge
was predicated upon the initial act of insubordination
coupled with the promise of continued insubordinate conduct.
The facts of this case, for the Board's purposes, are as
follows:
The Claimant, a mechanic, was requested to work on
a lube rack on a day that the regular lube man was
absent because of illness. (The Claimant had pre­viously
performed this work without problem.) The
Claimant refused to fill in as requested, assessing
as the reason for the refusal that 'it was dirty
33
and, thus, unsafe.' The Employer then told the
Claimant to go home for the day. At this point,
the Claimant asked if he were being fired. The
Employer stated "no".
The following day the Claimant reported for work
and was asked by the Employer if he would work
on the lube rack if it became necessary that a
fill-in was again required for that job. The
Claimant replied that he would not do so if
asked. The Claimant was then discharged.
Arizona administrative rule, A.C.R.R. R6-3-51255 provides in
pertinent part:
1. An employer has the right to expect that
reasonable orders, given in a civil manner, will
be followed and that a supervisor's authority
will be respected and not undermined. There is
no precise rule by which to judge when a dispute
with a supervisor constitutes insubordination if
insolence, profanity, or threats are not involved.
The pertinent overall consideration is whether the
worker acted reasonably in view of all the circum­stances.
Some examples of insubordination are:
a. Refusal to follow reasonable and proper
instructions; or
b. Insolence in actions or language, profanity,
or threats toward a supervisor without due
provocation; or
c. Refusal to accept assignment to suitable
work.
The Tribunal has reasoned that because the Claimant was not
discharged immediately·upon the occurrence of his refusal to
perform an assigned task, such conduct cannot be considered mis-conduct;
that the prospective refusal is in futuro and miscon-duct
cannot be predicated upon future conduct. We reject such
reasoning as it is applicable to the facts of this case.
A.C.R.R. R6-3-5105 provides the following:
1. Definition of "Misconduct"
a. "Misconduct connected with the work" means
any act or omission by an employee which constitutes
34
a material or substantial breach of the employee's
duties or obligations pursuant to the employment
or contract of employment or which adversely
affects a material or substantial interest of the
employer.
b. American Jurisprudence defines "Misconduct
Precluding Payment of Unemployment Insurance" as
follows: "Misconduct within the meaning of an
unemployment compensation act excluding from its
benefits an employee discharged for misconduct
must be an act of wanton or willful disregard of
the employer's interest, a deliberate violation
of the employer's rules, a disregard of standards
of behavior which the employer has the right to
expect of his employee, or negligence in such
degree or recurrence as to manifest culpability,
wrongful intent, or evil design, or show an
intentional and substantial disregard of the
employer's interest or of the employee's duties
and obligations to the employer."
The evidence clearly establishes that the Claimant was
discharged for his conduct on the day preceding the termination
(Tr. p. 2)
[Hearing Officer]
"Q What is the primary reason you discharged
him on that day?
[Employer]
A Refusal to work.
Q And when had that occurred?
A Thursday, (unintelligible)
[Hearing Officer]
* * *
Q On Thursday, when you refused to go to
the lube pit, did you have any conversation
with Mr. Croft about whether you were going
to be fired or what?
[Claiment]
A Yes, I asked him. When he said, well,
you're going to have to go home, I said,
am I going to be fired now, and he goes,
35
no, Bailey just said to send you home.
Mr. Croft didn't fire me, Bailey fired
me. That's another correction. And I
came in the next day, he said that
Bailey thought about it all day and he
thought that that was grounds for dis­missal.
So he is the one that fired
me, not Croft, and he had Croft do it
for him.
Q Who actually told you that you were fired?
A Croft.
Q What conversation did you have with
Mr. Croft when you came in the next
day?
A Really, none. I was ready to work.
(Tr. p. 10)
[Mr. Donaldson]
* * *
Q All right then, I want to ask you another
question. Did you tell Mr. Oregan that
Mr. Bailey had decided that he should be
terminated?
[Hr. Croft]
A Yeah, I told him we discussed it at that
time. I told him it was automatic grounds
for dismissal.
Q Well, earlier in your testimony, you said
that you were the person that had fired
him, and you said that you would not have
fired him if, when he'd come to work on
Friday he - -
A Right.
Q Would have had a change of attitude about it.
A Right. After I sent him home, I talked to
Bill. I told him what was going on, that Dan
had been sent home, and he said counsel him
tomorrow morning and see how his attitude is,
if it's changed any.
Q So there hadn't been a decision made to dis­charge
him prior to Friday?
A Right." (Tr. pp. 12, 13)
36
'.
It is evident that the decision to discharge the Claimant
was made the day following the refusal. We are aware of nothing
which precludes the Employer from so acting (See Gardiner vs. ADES,
127 Ariz. 603, 623 P.2d 33 (App. 1981).J.
It is undoubtedly true that the Claimant's attitude, i.e.,
that he would persist in refusing to follow instructions and
orders, provided the impetus for the discharge. That posture,
in and of itself, falls within the purview of insubordinate
conduct, and is an act of insubordination standing alone.
A.C.R.R. R6-3-51255(b). "insolence in action or language" (supra).
An Employer is not obliged to retain an employee who
promises insubordinate behavior. To so require would impose a
burden upon the Employer which is obvious in its import.
The evidence herein clearly dictates a finding of mis­conduct
within the meaning and intent of the Arizona Employment
Security Law.
DECISION
The decision of the Appeal Tribunal is reversed.
The Claimant was discharged for misconduct in connection
with the employment, and is disqualified from January 11, 1981
until March 21, 1981, and his total award reduced in the amount
of $760, eight times his weekly benefit amount.
The Employer's experience rating account shall not be
charged for benefits paid the Claimant as a result of this
employment.
This decision may create an overpayment if the Claimant
37
received benefits during all or part of the period of dis-qualification.
DATED this 21st day of July, 1981.
UNEMPLOYMENT INSURANCE APPEALS BOARD
Mary A. Bass, Chairman
Eugene R. Murray, Member
Robert D. Sparks, Member
THIS DECISION DESIGNATED AS
A PRECEDENT DECISION BY THE
DEPARTMENT OF ECONOMIC SECURITY
ON May 18! 1982.
38
UNEMPLOYMENT INSURANCE APPEALS BOARD
DEPARTMENT OF ECONO~IC SECURITY
STATE OF ARIZONA
Precedent Decision
~ o. PD- 106
Formerly Decision No. I
B-279-81 (AT T-221-81) I
J
In the Matter of:
CARLE,
Claimant.
AND
DEC I S ION
REVERSED
FRY'S FOOD STORES OF
ARIZONA,
Employer.
THE EMPLOYER has petitioned for review of the decision of
the Appeal Tribunal which held the Claimant was discharged for
reasons other than misconduct connected with her employment.
The Appeals Board has carefully reviewed the record in this
case, including the exhibits and the transcript. The contentions
raised in the petition have been considered.
In the petition, the Employer contends that contrary to the
findings of theTr~bunal, the Employer witnesses testified that
they had no way of knowing whether the Claimant was working to
the best of her ability; that the Claimant was aware of the com-pany's
rules concerning shortages and overages; that the rules
were reasonable and uniformly enforced; that the Claimant was
warned concerning the discrepancies and had extensive experience
as a cashier, and that her failure to follow company rules showed
39
a disregard of her Employer's interest.
A hearing was held at which the Claimant and two Employer
witnesses testified and several exhibits were introduced. The
Claimant was represented by counsel. The facts are as follows:
The Claimant was employed by the instant Employer on
October 4, 1973, first in its head office; since 1977, as
cashier in one' of its food stores, and was discharged on
January 1, 1981 for violation of the company's cash control
policy (Exh. 13). This policy statement, posted in October,
1980 in the store where the Claimant worked stated, among
others~ that when an employee showed a consistent and repeated
problem with cash longs and shorts he or she would automat­ically
go on total cash control and accountability, would
receive a written warning for the first and second $3 long or
short, a one-day suspension for the third $3 long or short,
and would be discharged after the fourth such discrepancy.
The Claimant received a verbal warning and was placed on
cash control on November 24, 1980 due to cash shortage prob­lems.
On November 26th she received a written warning for
being $4.96 over. On December 6th she received another written
warning after a $16 shortage. On December 23rd she was sus­pended
for one day for being $49.77 over. Finally, on
December 31st she was $6 short and was discharged on January 1.
Previously, before posting of the aforementioned company
policy, the Claimant received conduct reports for a $2.26
shortage on May 9, 1980, for a $20 shortage on August 11, 1980,
and for a $9.15 overage on August 23, 1980. The Employer's
director of store operations testified that the cash control
40
policy was in effect even before it was posted (Tr. p. 19).
Neither of the Employer witnesses alleged any knbwledge or
information which would smack of wilful disregard by the
Claimant, of her Employer's interest. Similarly, neither
alleged dishonesty by the Claimant. The store manager stated
unequivocably that she was discharged solely because of the
four cash variances (Tr. p. 42).
For her part, the Claimant acknowledged that she read and
was aware of the policy statement since its posting in
October,1980. However, she claimed that she did not understand
the policy and was unaware that it provided for discharge after
a suspension. She was aware that others had been disciplined
in accordance with its pronouncements (Tr. p. 48).
Anent the final incident that culminated in her discharge,
the Claimant testified that her assistant manager counted the
money from her cash register bank into the till until it con­tained
an even $100. He then removed the till into the inner
office where there were a number of other tills. She alleged
that she could not identify which was hers, although she was
asked if she wanted to verify the amount. The assistant
manager then counted the rest of the cash 1 checks, and coupons
in the drawer and said that it showed $6 short (Tr. p. 49).
She related that earlier that day, a clerk brought her what was
purported to be fifty new $1 bills and, in response to her ques­tion,
assured her that they were all in numerical sequence. The
Claimant had a long line of customers and did not take the time
to count the money. She alleges that later she noticed that the
bills were not in numerical sequence but acknowledged that
4 I
"basically (she) was to blame for not taking the time to count
them." (Tr. p. 50). On other occasions when errors occurred
she had the opportunity to verify the shortages but questioned
the $49.77 discrepancy because she believed "that was a check
which could have been run twice." (Tr. p. 51).
A.R.S. § 23-775 of the Employment Security Law, provides in
part, that an individual shall be disqualified for benefits if
he or she has been discharged for ••• negligent misconduct con-nected
with the employment.
Arizona administrative rules and regulations A.C.R.R.
R6-3-5105 in defining 'misconduct', states in part:
1. Definition of "Misconduct"
a. Misconduct connected with the work may be
defined as an act or omission by the worker
which constitutes a material breach of duties
and obligations arising out of the contract of
employment, or an act or course of conduct, in
violation of the employee's duties, which is
tantamount to a disregard of the employer's
interest.
* * *
b.2. A claimant need not have actually acted
with intent to wrong his employer to result in
a finding of misconduct connected with the
work.
3. In determining whether the worker would
be expected to have avoided the situation
which caused the discharge consideration
should be given to the worker's knowledge of
his responsibilities through past experience,
explanations, warnings, etc. The materiality
of a duty and the materiality of the breach
of such duty should be evaluated in the light
of what is customary in the type of business
in which the claimant was employed.
Also, the same rules and regulations, A.C.R.R. R6-3-51485
as here applicable reads:
42
A.I. An employee discharged for violating a
company rule, generally is considered dis­charged
for misconduct connected with the work.
This principle is based on the theory that
when hired, an employee agrees to abide by the
rules of his employer. This section covers
rules peculiar to a particular employer, and
not rules constituting the general code of
industrial misconduct. In order for miscon­duct
connected with the work to be found, it
must be determined that the claimant knew or
should have known of the rule and that the
rule is reasonable and uniforml enforced
(emphasis added.
Also, the same rule and regulations, A.C.R.R. R6-3-51300
provides, as applicable here:
A.I. A worker has the implied duty of
performing his work with ordinary care
and diligence and of making reasonable
efforts to live up to such standards of
performance as are required by his
employer.
* * *
3. • •�� In the absence of gross careless-ness
or negligence or recurrence of ordi­nary
carelessness or negligence, the
claimant's failure to perform his work
properly is presumed to be attributed to
good faith error in judgment, inability,
incapacity, inadvertence, etc. (emphasis
added).
Clearly, the Employer had every right to establish and
enforce a policy it considered to be in the best interest of
the company. It cannot be gainsaid that the cash control
policy established here was entirely inappropriate to the nature
of the business conducted. It is self evident that the care
required of personnel entrusted with the handling of cash reg-isters
of a food market, as here, must exercise a degree of
care, commensurate with the duties involved. And where, as
here, a cashier has exhibited repeat~d occurrences of discrep-ancies
despite repeated warnings, and despite the express
43
proscriptions of established policy, she must be deemed to have
been discharged for misconduct.
The Claimant was an employee of long standing and knew or
should have known the importance of the highest degree of
accuracy required. She had, and was warned of, at least eight
cash discrepancies which occurred over a period of some seven
months before and after the posting of the cash control policy.
We reject her excuse that she did not understand and was not
totally aware of the impact of the policy rule.
DECISION
The decision of the Appeal Tribunal 18 reversed.
The Claimant was discharged for misconduct in connection
with her employment, and is disqualified from January 4, 1981,
until March 14, 1981, and her total award reduced to $760,
eight times her weekly benefit amount.
The Employer's experience rating account shall not be
charged for benefits paid the Claimant as a result of this
employment.
This decision creates an overpayment if the Claimant was paid
benefits during all or part of the period of disqualification.
Dated this 2nd day of July, 1981.
UNEMPLOYMENT INSURANCE APPEALS BOARD
Mary A. Bass, Chairman
Eugene R. Murray, Member
Robert D. Sparks, Member
THIS DECISION DESIGNATED AS
A PRECEDENT DECISION BY THE
DEPARTMENT OF ECONOMIC SECURITY
ON May 18, 1982 •
44
UNEMPLOYME~T INSURANCE APPEALS BOARD
DEPARTMENT OF ECONO~IC SECeRITY
STAT E 0FARI Z0 ~~A
Precedent Decision
~'o. PD- 107
Formerly Decision No.
B..-1020.,.81 (AT 4123....81 L
In the Matter of:
KOWALSKI,
Claimant.
AND
DEC I S ION
REVERSED
INTERFACE, INC.,
Employer.
THE CLAIMANT has petitioned for review of the decision of the
Appeal Tribunal which held the Claimant was discharged for work-connected
misconduct.
The Appeals Board has carefully reviewed the record in this
case, including the exhibits and the transcript. The contentions
raised in the petition have been considered.
We find no material error in the findings of fact, and adopt
them as our own. [The Appeal Tribunal decision contained the
following findings of fact].
[The claimant was employed about two years for "X"
Incorporated, Scottsdale, Arizona. X Incorporated
is a manufacturer of load cells. The claimant had
been the second shift supervisor for aboQt one and
one-half years until relieved of that position on
May 25, 1981. He then became an assembler, with
no change in hours or pay. The claimant was dis­charged
on June 7, 1981 effective June 1, 1981
because he took a vacation without permission.
45
The claimant's immediate supervisor was the
production supervisor, who worked the day
shift. By memo dated May 15, 1981 the
claimant advised his supervisor that he
wished to take his two-week vacation period
beginning June 1, plus another week of per­sonal
leave through June 22, 1981. On or
about May 18, the claimant and the supervisor
had a discussion wherein the supervisor told
the claimant it was company policy to give
three weeks advance notice of a desired vaca­tion
and refused him permission for the
planned dates. The supervisor said she
needed the claimant at the plant during the
requested time. The claimant had not been
aware of company policy requiring three
weeks of advance notice for leave requests,
nor was he shown such a policy during the
discussion with the supervisor.
On May 19, the claimant addressed another
memo to his supervisor explaining the reasons
for his request and why he felt it was legit­imate
and requesting her to reconsider. At
some time after this memo was written the
supervisor verbally informed the claimant
that she had not changed her mind. On May 27,
the claimant sent the supervisor another memo
reminding her that he was going to start his
vacation Monday, June 1, and mentioning that
since he had been relieved of his supervisory
responsibilities his presence should not be
necessary.
The claimant had planned a vacation trip by
automobile for him and his wife to Chicago,
where the claimant's mother lives. He had
informed a realtor that he would be available
during this period to complete the sale of a
condominium he owns in Chicago. The claim­ant's
wife is not employed and it was not
urgent that the trip to Chicago be made at
this particular time.
The production supervisor addressed a letter
to the claimant on June 7, 1981 discharging
him effective June 1, for taking vacation
without management authorization.]
In the petition, the Claimant contends essentially the same
matters covered at the hearing, and asserts that the decision is
not based on a correct application of the law to the facts.
Here, it is undisputed that the Claimant took vacation time
46
and absented himself from the employment, after being denied
permission to do so by the Employer. The only question before
this Board, just as before the Tribunal, lies within the pur-view
of the applicable administrative rule, A.C.R.R. R6-3-5115:
C. Permission
1. It is reasonable for employer(s) to require
that their employees request permission to be
absent from work when such absence may be antici­pated.
A prudent worker will normally request
permission and will not take time off when his
request is refused.
2. When a claimant is denied permission for an
impending absence from work and is absent
despite the employer's refusal, the necessity
for the absence and his employer's reason for
not granting permission must be weighed. The
claimant's separation from work under such cir­cumstances
would be considered misconduct con­nected
with his work; unless
a. The employer has denied a legitimate leave
request without valid reason; or
b. The claimant would suffer serious detriment
if he did not take time off work; or
c. The claimant was absent for a compelling
personal reason.
The Claimant testified (Tr. pp. 7, 8):
[Hearing Officer]
"Q Okay, tell me just what the points made in
this lengthy discussion were?
[Claimant]
A She said I basically couldn't have the vaca­tion
because it was not in keeping with
company policy. And I pointed out to her we
didn't have a company policy. We'd been
over this point with other employees. We'd
been up this road before and we did not have
a written company policy. So in absence of
a company policy we'd been operating under
that rule for about a year and a half and
it's the same rule I applied toward me - a
two week notice was sufficient. And she
then came back with, well, we cannot afford
47
to have you leave at that time, and I said,
I have a young man, Bob Crane, wor~ing with
me - he just started a few weeks after I
did, and he could do everything I could do.
He was a very competent person. I explained
to her, with the two weeks I have left I
could show him how to lock up the place, how
to set the alarm, how to do the minor sched­uling
of production, whatever, so he can
take over the two weeks and handle every­thing
in that part. Plus the other fact ­another
extenuating circumstance I really
didn't mention is that's traditionally our
slow period. Almost all vacations are
scheduled in this time, June, July, and into
August, because that is our slow time. Our
production is at a low usually at this time,
and it was in this case. We were in one of
our low times in employing people and pro­ducing
sales. We had a large inventory, a
large backlog. And for those three reasons,
you know, I really couldn't see why they
would object.
Q What did she say?
A She just reiterated it was against company
policy and _"
Further, the Claimant had been demoted from a supervisory
position approximately one week prior to his leaving on vacation.
He testified (Tr. p. 13):
" ••• when you take into account, I wasn't even a
supervisor so her reason for not letting me go
on (sic) was that she needed my supervisory
talent and she didn't because I wasn't a super­visor
for the last week."
The Tribunal, in reaching its decision, reasoned "We have
evidence from the employer as to the reasons for denial ••• "
However, the record provides no basis for that conclusion. The
Employer made no appearance at the hearing; thus, there is no
direct testimony as to the reason for the denial. The only evi-dence
of record from the Employer is Exhibit 3 (Employer protest)
which states:
It [Claimant] was terminated from his position
48
at Interface, Inc. because he took a vacation
without management authorization."
and Exhibit 9 (Deputy investigation-phone contact with Employer),
containing the following statement:
"ER 6-30-1 ••• Mr. ~volward telecom states clmt
was Night Supervisor. It is company policy
that vacation must be arranged without things
hung up while gone, Clmt. did not obtain
permission."
Exhibit 3 (supra) clearly states only that which is not
disputed; no reason is given for the termination.
Exhibit 9 (supra) contains only information - it elicits no
reason - which, according to the Claimant's sworn, unrebutted
testimony, is inaccurate.
A.C.R.R. R6-3-51190 provides, in part:
B.2.b. When a discharge has been established,
the burden of proof rests on the employer
to show that it was for disqualifying
reasons.
c. • •• It is important to keep in mind that
mere allegations of misconduct are not
sufficient to sustain such a charge.
Proof must be based on evidence, not conjecture. Here,
there is virtually no evidence wh~ch would support a finding of
misconduct, and that evidence, such as it is, carries little
probative value.
The Claimant has established that he followed previously
accepted procedures in requesting leave. He has established he
was not in a supervisory capacity, contrary to the Employer's
statement. He had arranged for 'coverage' of his position, if
same be required.
Conversely, the Employer has provided no valid reason for
the denial. No testimony has been advanced to rebut the
49
Claimant's position. The necessity of the Claimant's presence
during the subject period has not been established. It is not
disputed that the period was "traditionally our slow period" and
"one of our low times in employing people" (supra).
The Employer has not sustained the burden of proof imposed
upon it to show the Claimant's discharge was for disqualifying
reasons.
The evidence in this case weighs overwhelmingly in favor of
the Claimant.
We find the Claimant's discharge from employment was for
other than work-connected misconduct within the meaning of the
Arizona Employment Security Law.
DECISION
The decision of the Appeal Tribunal is reversed.
The Claimant was discharged for reasons other than work-connected
misconduct. The assessed statutory disqualification
is removed.
The Employer's experience rating account shall be charged
for benefits paid the Claimant as a result of this employment.
DATED this 20th day of November, 1981.
UNEMPLOYMENT INSURANCE APPEALS BOARD
Reana K Sweeney, Chairman
Eugene R. Murray, Member
Robert D. Sparks, Member
THIS DECISION DESIGNATED AS
A PRECEDENT DECISION BY THE
DEPARTMENT OF ECONOMIC SECURITY
ON May 18, 1982.
50
UNEMPLOYMENT INSURANCE APPEALS BOARD
DEPARTMENT OF ECONOMIC SECUnITY
STATE OF ARIZO;~\
Precedent Decisioll
~o. PD- 108
Formerly Decision ~o.
B-1289-80 (AT 7871-80)
In the Matter of:
FIGUEROA,
Claimant.
DECISIO~~
AFFIRMED
THE CLAIMANT has petitioned for review of the de~ision of
the Appeal Tribunal which held that his appeal from the decision
of the Deputy was untimely filed, and further, that the notice
of the Deputy's decision, in the English language, denied the
Spanish-speaking Claimant due process.
The Appeals Board has carefully reviewed the record in this
case, including the exhibits and the transcript.
raised in the petition have been considered.
The contentions
We find no material error in the findings of fact. The
reasons for the decision are founded upon a proper application of
the law to the facts. We therefore adopt the [following]
Tribunal's findings of fact, conclusions of law and reasons there-for,
as our own.
[The claimant, registered for work as a farm laborer,
51
filed his additional claim for unemployment insurance
on July 3, 1980. The employer's protest to the claim
was received in the claims office on July 23, 1980.
The deputy's determination was mailed to the claim­ant's
correct address of record on September 12, 1980,
at a post office box in Gadsden, Arizona.
The claimant cannot remember what date he actually
picked up the determination from the post office box,
but at his hearing said he thought it was on the fol­lowing
Friday (September 19, 1980). The claimant does
not speak or read English. The person preparing the
claimant's appeal entered as the explanation for it
being untimely, "I just recieved (sic) the determination
on 9-29-80."
At his hearing, the claimant said 9-29-80 is the day he
found someone who would translate the determination to
him in Spanish. He cannot remember which person it was.
He gets different people at different times to translate
things for him. They do not always give him the correct
information.
The claimant's appeal brings up the issue of timeliness.
This issue involves the application of Section 23-773 of
the Employment Security Law of Arizona and Arizona Admin­istrative
Rules and Regulations, Section R6-3-l404.
The deputy's determination was mailed on Friday,
September 12, 1980. The 15th calendar date after that
mailing fell on Saturday, September 27, 1980. Therefore,
the period for a timely appeal was extended until the
first working day thereafter, Monday, September 29, 1980.
As the claimant did not file his appeal until Tuesday,
September 30, 1980, it was not filed within the 15 days
provided by the statute for the filing of a timely appeal.
The only basis on which the Tribunal could find an appeal
filed beyond the IS-day period to be filed timely (under
the Regulation), would be clear evidence the delay was due
to either Department error or misinformation, action of
the U. S. Postal Service, or a change in the claimant's
address. The delay was not due to any of these reasons,
but due to the claimant's delay in finding someone who
would interpret the meaning [of] the determination to him.
Therefore, the Tribunal is prevented from finding the
appeal to be timely filed, and has no jurisdiction over
the issue of whether the claimant did voluntarily quit the
employment with X Company without good cause in connection
with the employment.]
In the petition, the Claimant admits that he received the
52
notice of the Deputy's determination, mailed on September 12,
1980, but was not certain as to the date of receipt thereof.
Reflecting his inability to understand the English language, the
Claimant found someone unidentified to translate said notice on
September 29, 1980, the last day for filing an appeal therefrom,
and then filed his appeal on September 30, 1980, or one day late.
The Claimant further contends, through counsel's "Memorandum
in Support of Claim for Unemployment Compensation Benefits" that
his constitutional rights pursuant to the 14th Amendment of the
United States Constitution have been violated by virtue of the
State's mailing of a notice in the English language, knowing that
the Claimant was familiar only with the Spanish language.
The most careful review of Claimant's Memorandum, well as it
is written, fails to identify either fact or law on which a
reversal of the Appeal Tribunal's decision could be predicated.
Conversely, the findings of fact set forth therein are parallel
to those rendered by the Tribunal and, if anything, appear to
enlarge their parameters. As to the citations of law urged upon
us therein, we must similarly note an absence of support for the
propositions submitted, except possibly for some broad and general
concepts which the courts of this state and other jurisdictions
have interpreted in infinite detail, including Wallis v. Arizona
Department of Economic Security, 126 Ariz. 582, 617 P.2d 534
(App. 1980) wherein the Court of Appeals stated, in pertinent part:
" ... We must assume that the Legislature meant what it
said, and therefore hold that where statutory prereq­uisites
for finality to a deputy's determination are
established, that decision becomes 'final' unless a
timely appeal is perfected."
We find no merit in counsel's proposition that actions by the
53
California or Washington legislatures, to include so-called
"good cause" exceptions for late filing, would be determinative
of an issue arising from the application of Arizona law to an
Arizona fact situation. Nor do we subscribe to the contention
that regard for the timeliness of an appeal should or can be
equated to subversion of a "legislative goal" attendant to what
counsel terms a remedial statute. The decision of the Appeal
Tribunal reflecting implementation of A.C.R.R. R6-3-l404 in
the instant matter is correct and supportable.
The Claimant, has propounded a second
theory in support of his appeal for reversal of the Appeal
Tribunal's decision - the alleged violation of Claimant's
constitutional right to due process. Counsel suggests that a
violation of such rights is inherent in the Department of
Economic Security's mailing of the notice of the Deputy's
decision to the Claimant in English. Citing Mullane v. Central
Hanover Bank & Trust Co., 339 u.s. 306, 70 S.Ct. 652, 94 L. Ed.
865 (1950), we are urged to impute inadequacy to the referenced
notice solely on the basis of its language and the fact that the
Claimant apparently has no familiarity therewith. Our reading
of Mullane, supra, leads us to a differing conclusion; i.e.,
purported inadequacy of notice must be substantively proven,
not merely insinuated, and use of the national and official
language of these United States of America is in no way tanta-mount
to inadequacy. We look to sister jurisdictions for
dispositive decisions in this area, Dalomba v. Director of The
Division of Employment Security, 337 N.E.2d 687 (1975) wherein
54
it stated:
" .•• a notice in English, clear on its face, was
not insufficient merely because, as to persons
under language disability, it perhaps did not
actually inform Claimant's right of procedural
due process was not violated because she was not
literate in English and an English-only notice
was sent to her. II
On the Federal level, we submit the ruling by the United
States Court of Appeals, Ninth Circuit, in Carmona v. Sheffield,
475 F.2d 738 (1973), further reinforces our holding:
" ..• Applicants for California unemployment insurance
benefits who spoke, read and wrote only Spanish were
not denied equal protection of law because the
California Department of Human Resources Development
gave all notice in English. II
It would appear that the California Supreme Court's Majority
decision in Guerrero v. Carlson, 512 P.2d 833 (1973), from which
Claimant's memorandum quotes a minority opinion, merely paralleled
the Carmona decision, supra.
We note, without elaboration, counsel's reference to Covey
v. Town of Somers, 351 U.S. 141, 76 S.Ct. 724, 100 L. Ed. 1021,
(1955), and attendant suggestion that standards deemed appro-priate
to, individuals possessing linguistic disabilities.
For the reasons set forth above, and applying the rationale
of Wallis v. Arizona Department of Economic Security, supra, and
drawing further support from the Court of Appeals' ruling in
Slonim v. Arizona Department of Economic Security, 126 Ariz. 201,
613 P.2d 865 (1980), we find that the Claimant's appeal of the
Deputy's det~rmination was not timely filed pursuant to A.C.R.R.
R6-3-1404, and further, that the mailing of an English language
notice to the Claimant was not violative of any due process rights
of the Claimant.
55
DECISION
The decision of the Appeal Tribunal is affirmed.
DATED this 13th day of March, 1981.
UNEMPLOYMENT INSURANCE APPEALS BOARD
Mary A. Bass, Chairman
E. D. Crowley, Member
Eugene R. Murray, Member
THIS DECISION DESIGNATED AS
A PRECEDENT DECISION BY THE
DEPARTMENT OF ECONOMIC SECURITY
ON June 1, 1982.
56
UNEMPLOYMENT INSURANCE APPEALS BOARD
DEPARTMENT OF ECONOMIC SECURITY
STATE OF ARIZONA
Precedent Decision
No. PD- 109
Formerly Decision No.
B-640-80 (AT 3549-80)
In the Matter of:
rrLITZNER,
Claimant.
DE..£1.~1..QN
REVERSED
THE DEPUTY has petitioned for review of the decision of the
Appeal Tribunal which held that the Claimant was eligible for unem-ployment
insurance benefits from April 6, 1980 through June 7, 1980.
The Appeals Board has carefully reviewed the transcript and
exhibits in this matter.
have been considered.
The contentions raised in the petition
We find no material error in the [following Tribunal's] find-ings
of fact:
[The claimant filed a new claim for unemployment insur­ance
benefits effective December 23, 1979. A weekly
benefit amount of $90 was established. On March 1,
1968 the claimant began receiving military retirement
based on his service with the United States Air Force.
On September 21, 1976 the claimant and his wife entered
into a support and property settlement agreement
which provided for the irrevocable assignment of the
57
claimant's military retirement to his wife, with such
retirement to be the income of the wife. That support
and property settlement agreement was incorporated in
a Decree of Dissolution of Marriage issued by the
Superior Court of the State of Arizona on September 24,
1976. Since that time, the claimant's military retire­ment
has been mailed directly to his ex-wife by the
United States Air Force. During the months of April,
May and June 1980 the amount of said retirement was
$463.93.]
and, with the following additions, adopt them as our own:
Term III (e) of the Support and Property Settlement Agreement
(Exh. 9) states:
"The entire Airforce retirement and any future increases
currently payable in the amount of $374 per month; in
this connection the parties agree that the husband will
cause the Airforce retirement to be assigned irrevo­cably
to the wife and in the event this cannot be done
the husband will cause the Airforce Accounting and
Retirement Center in Denver, Colorado, to mail the
check in his name to the address of the wife, further,
the husband agrees to execute a limited Power of
Attorney to enable the wife to negotiate the Airforce
retirement checks; in the event the Airforce retirement
check is mailed to the husband, husband agrees to mail
it in turn to the wife within five (5) days; the
parties agree that all taxes due as a result of the
Airforce retirement will be paid by the wife viz., the
Airforce retirement will be income to the wife."
The Claimant testified that he has not "received" any of the
Military Retirement Benefits since the entry of the decree of dis-solution
(Tr. p. 4).
The Appeal Tribunal correctly found that this case is con-trolled
by 26 U.S.C. § 3304(a)(15), (sometimes referred to as the
Federal Unemployment Tax Act), which states as follows:
The amount of compensation payable to an individual
for any week which begins after March 31, 1980, and
which begins in a period with res ect to which such
~n ~v~dua ~s rece~v~ng a gover~mental or other
pens~on retirement or retired pay, annuity, or any
other similar periodic payment which is based on
the previous work of such individuals shall be
58
reduced (but not below zero) by an amount equal to the
amount of such pension retirement or retired pay,
annuity or other payment, which is reasonably attrib-utable
to such week (emphasis added).
The Appeal Tribunal determined that inasmuch as the Claimant
had "assigned" the Air Force retirement payments to his wife, in
toto, pursuant to the decree of dissolution, he did not "receive"
the retirement payment as contemplated by the preceding statute.
We do not agree. The Claimant's payments to his former wife
amount to nothing more than an agreed upon settlement of the
latter's claim to, and share, of the community property. That
the former assigned his governmental retirement pay to her, as
part of such settlement~ can work no changes in the law so as to
put her in the posture of replacing the Claimant as the individ-ual,
" ••• receiving a governmental ••• retirement or retired pay
••• which is based on the previous work of such individuals
26 U.S.C. § 3304(a)(15), supra.
The Claimant's ex-wife, not having performed the work upon
which the retirement pay is based, cannot receive it within the
"
meaning of the statute. Such payment is based upon the Claim-ant's
previous work; therefore, he is the only individual who can
'receive' it. What he elects to do with it, after he receives it,
is entirely up to him. To accept any other interpretation is to
suggest that private parties may contract in circumvention of
public law. We are not prepared to hold that the irrevocable
assignment of retirement pay, for whatever reason, relieves the
retiree of its receipt, so as to allow him to apply for other and!
or further benefits or payments to which he is not otherwise
entitled.
59
The Senate Finance Committee, in discussing the statutory
provision herein considered, had this to say:
"It was brought to the attention of the committee that
in a number of the states ••• retired people who are
receiving public and private pensions ••• military pay,
etc., and who have actually withdrawn from the labor
force are being paid unemployment compensation •••• The
committee believes that a uniform rule is required and
has added a new provision requiring each state to pro­hibit
the payment of unemployment compensation to any
individual who is entitled to any governmental or pri­vate
retirement pay ••• based on previous employment."
(emphasis added). The Commerce Clearing House, Inc.,
Unemployment Insurance Reporter, Volume lA at page
3267-5.
The thrust of the legislation was to do away with individuals
receiving more than one payment for past employment. To hold with
the Tribunal's construction would, most certainly, thwart that
Congressional will and intent. We, therefore, must conclude that
the Claimant is, in fact, receiving retirement payments, pursuant
to 26 U.S.C.A. § 3304(a)( 15), and that the Support and Property
Settlement did nothing more than create a debt and, then, provide
him with a convenient method of satisfying it.
Accordingly, we find any award the Claimant would otherwise
be entitled to, must be offset by the amount of his military
retirement pay attributable to that week. As the Claimant's
weekly retirement benefits exceeded his weekly benefit amount, we
conclude that the Claimant is ineligible for unemployment insurance
benefits.
DECISION
The determination of the Appeal Tribunal is reversed.
The Claimant is ineligible to receive unemployment insurance
benefits as long as the Claimant's weekly benefit amount is
exceeded by the military pension payment attributable to that week.
60
This decision may create an overpayment if the Claimant
received benefits during all or part of the period of ineligi-bility.
DATED this 24th day of September, 1980.
UNEMPLOYMENT INSURANCE APPEALS BOARD
Mary A. Bass, Chairman
E. D. Crowley, Member
Eugene R. Murray, Member
THIS DECISION DESIGNATED AS
A PRECEDENT DECISION BY THE
DEPARTMENT OF ECONOMIC SECURITY
ON June 1, 1982.
6 I
UNEMPLOYMENT INSURANCE APPEALS HOARD
DEPARTMENT OF ECONOMIC SECURITY
STATE OF ARIZO~A
Precedent Decision
No. PD- 110
Formerly Decision No.
B-I075-81 (AT M-707-81)
In the Matter of:
GURULE,
Claimant.
AND
DEC I S ION
AFFIRMED
MARATHON STEEL COMPANY,
Employer.
THE EMPLOYER has petitioned for review of the decision of the
Appeal Tribunal which held the Claimant eligible for the receipt
of unemployment insurance benefits and the Employer's experience
rating account subject to charges for benefits paid as a result
of this employment.
The Appeals Board has carefully reviewed the record in this
case, including the exhibits and the transcript.
raised in the petition have been considered.
The contentions
We find no material error in the findings of fact. The
reasons for the decision are founded upon a proper application of
the law to the facts. We therefore adopt the [following]
Tribunal's findings of fact, conclusions of law, and reasons
therefor, as our own.
[The claimant was employed by "X" Employer from August 5, 1978
62
to July 12, 1981. The claimant was working as a first
ladleman on his last day of work. On July 15, 1981,
the employer sent the claimant a telegram discharging
him for allegedly smoking marijuana on the job on
July 12, 1981. The only evidence the employer pre­sented
at the hearing to establish this was the
signed statements of two supervisors.
The claimant testified under oath that he did not
smoke marijuana on the job on July 12, 1981. His tes­timony
was corroborated by the sworn testimony of
another employee who was present at the time of the
alleged incident.
The claimant has contested a determination his dis­charge
was disqualifying. The issues raised must be
decided under Sections 23-775 and 23-727 of the
Employment Security Law of Arizona.
Department Benefit Policy Rule R6-3-S1l90 provides
that when a discharge has been established, the burden
of proof rests on the employer to show that it was for
disqualifying reasons. Mere allegations of misconduct
are not sufficient to sustain the employer's burden of
proof. In this case, the employer presented only two
signed, written statements to support its allegation
that the claimant was discharged from his employment
for smoking marijuana while on the job. The allegation
was denied under oath by the claimant and corroborated
by another witness who testified at the hearing.
Therefore, the Tribunal concludes the employer failed
to meet its burden of proof in establishing misconduct
on the part of the claimant. The Tribunal finds the
claimant's discharge from employment was for reasons
other than work-connected misconduct.]
In the petition, the Employer contends essentially that it
did ~eet its burden of proof by the introduction of two written
and signed statements supporting its allegations. The Employer
further contends the testimony of the corroborating witness for
the Claimant, a co-worker, also terminated at the same time, whose
testimony was self-serving, was insufficient to overcome the
Employer's testimony and accompanying statements.
The record discloses the Employer received a Notice of Appeal
Tribunal Hearing, which provided in part:
63
REASON FOR THE HEARING: To give all parties an
opportunity to present evidence on the cited issues
and any other issues which may arise.
ATTENDANCE: You are urged to attend the hearing to
present any evidence affecting this claim for unem­ployment
insurance. If ou cannot attend the hear­in,
ou ma submit a wr~tten statement preferabl
a sworn statement expla~n~ng your position ~n the
case; however; it is much better for you to appear
and testify. You also have the right to send
written questions to the hearing officer, who will
ensure that the questions are asked of the other
party, provided the questions are received prior to
the designated hearing date and are germane to the
issues to be decided.
POSTPONEMENT: The hearing may be postponed for
good cause. Requests for postponement should be
made as soon as possible, and may be done by tele­phoning
the number on the heading.
* * *
EVIDENCE: If ¥ou have witnesses with personal know­ledge
of the c~rcumstances involved in the case you
should arrange for their appearance at the hearing.
If a witness refuses to appear, you may request that
a subpoena be issued to compel attendance. You may
also request that documents pertinent to the issue
be subpoenaed. A request for subpoena must be made
in writing in sufficient time prior to the hearing
to permit preparation and service of the subpoena.
The request must contain the name of the individual
or documents desired, the address at which the sub­poena
may be served, and the facts which the appli­cant
expects to prove by the individual or documents
de~ired. Bring with you to the hearing this notice
and any written material you wish to present as evi­dence.
A doctor's certificate may be important in
cases involving health. If the appellant fails to
appear at the appointed time, a default may be
entered (emphasis added).
The Employer presented no testimony of witnesses with personal
knowledge of the incident which resulted in the Claimant's dis-charge,
but, rather, introduced two statements, both unsworn, upon
which he relied in establishing his position. No request was made
for a postponement of the hearing for ~he purpose of obtaining the
personal attendance of these witnesses.
64
The Tribunal considered the evidence presented at the hear-ing
and accorded such weight to the testimony and documentary
evidence as it was entitled, in reaching a decision.
The disposition of cases on the basis of credibility of
parties and witnesses is most decisive on appeal or review. The
effect and weight of conflicting and contradictory testimony, just
as the weight of the testimony on any issue, is on that side of
the issue on which the evidence is more credible, and rests within
the sound discretion of the Hearing Officer. The Board has con-sistently
held that in matters of credibility, the findings of the
trier of fact will not be disturbed except upon a clear showing
that such are arbitrary, capricious, and against the weight of
evidence. There has been no such showing made in this case.
Administrative rule A.C.R.R. R6-3-5ll90 provides in pertinent
part:
B. Burden of proof and presumption
* * *
2. The burden of proof rests upon the individual who
makes a statement.
a. If a statement is denied by another party, and
not supported by other evidence, it cannot be
presumed to be true.
b. When a discharge has been established, the burden
of proof rests on the employer to show that it
was for disqualifying reasons. This burden may
be discharged by an admission by the claimant,
or his failure or refusal to deny the charge when
faced with it.
c. An employer who discharges a worker and charges
misconduct but refuses or fails to bring forth
any evidence to dispute a denial by the claimant
does not discharge the burden of proof. It is
important to keep in mind that mere allegations
of misconduct are not sufficient to sustain such
a charge.
65
C. Weight and sufficiency
* * *
2. When sufficient evidence has been obtained, all
the facts available must be weighed. Only relevant
evidence can be considered.
* * *
c. Credible testimony of an eye witness must be
given more weight than hearsay statements.
From our careful review of the entire record, we find ample
support for the findings and conclusions reached by the Tribunal.
ACCORDINGLY, the decision of the Appeal Tribunal is affirmed
on the basis of the record.
DATED this 13th day of November, 1981.
UNEMPLOYMENT INSURANCE APPEALS BOARD
Reana K Sweeney, Chairman
Eugene R. Murray, Member
Robert D. Sparks, Member
THIS DECISION DESIGNATED AS
A PRECEDENT DECISION BY THE
DEPARTMENT OF ECONOMIC SECURITY
ON June 1, 1982 •
66
UNEMPLOYMENT INSURANCE APPEALS BOARD
DEPARTMENT OF ECONOMIC SECURITY
STATE OF ARIZONA
Precedent Decision
No. PD- 111
Formerly Decision No.
B-552-8l (AT 1789-81)
In the Matter of:
RIOS,
Claimant.
AND
DE- C- -I -S -ION
REVERSED
CITIES SERVICE COMPANY,
Employer.
THE EMPLOYER has petitioned for review of the decision of
the Appeal Tribunal which held that the Claimant was discharged
for reasons other than work-connected misconduct.
The Appeals Board has carefully reviewed the record in this
case, including the exhibits and the transcript. The contentions
raised in the petition have been considered.
In the petition, the Employer contends that the Tribunal's
decision seems to be rooted in the area of evidence; that the
drug in question was confiscated by the police and cannot be
released by them pending criminal action against the Claimant.
It further contends, that "knowingly" introducing illegal drugs
on company property is not the real test of what constitutes a
violation of its rules, rather it is the mere "introduction" of
such drugs which justifies discharge thereunder.
67
A hearing was held in this matter at which the Claimant,
his wife, and five Employer witnesses testified. The facts
adduced and as summarized by the Tribunal are incorporated
herein by reference and will be repeated for clarity of dis­cussion
only, or for amplification.
Boiled down to its essentials, the evidence discloses that
on the day in question, the Claimant returned several hours
after the end of his term of duty, to his Employer's main gate,
and deposited a paper grocery bag on the file cabinet of the
guard shack remarking that it contained Pepsi-sodas which a
co-worker friend of his had telephoned him to bring to him. He
remained for about twenty minutes chatting with the three
security guards, and left after assuring them that his friend
would call for the bag. One of the guards picked up the
grocery bag, felt something at the bottom thereof, and told her
captain. They opened the bag, discovered a plastic bag under­neath
the six-pack container of Pepsi-Colas, and examined the
contents. All guards agreed that it was marijuana. The plastic
bag and its contents were turned over to the police who had it
analyzed by a state agency which determined that the contents
were, in fact, marijuana. The Claimant was never confronted
with the contents of the plastic bag, nor was the state agency
report, or a copy thereof, ever exhibited to the Claimant or
made a part of the record.
For his part, the Claimant related that he took his family
riding after work and stopped to buy some cigarettes at a con­venience
store some eleven to sixteen miles from his place of
work. As he was getting back into his own car, a stranger in
68
a truck parked next to him asked whether he knew a certain man,
identified as the Claimant's friend and co-worker. Upon receiv­ing
an affirmative reply, the stranger asked the Claimant to
deliver the bag of sodas to the co-worker at the plant. The
Claimant agreed. At the hearing, the Claimant testified that
he had never seen the stranger before; he testified he used
the expression 'he looked like a narc' (narcotics agent) in
describing the person (Tr. p. 45).
The Claimant's wife corroborated his testimony, insisting
that the car contained not only herself, but also her four-year
old daughter and her niece and nephew, ages 4 and 2, respec­tively.
However, two of the guards testified that the automobile
was empty and the Claimant remained at least 20 minutes at the
guard shack.
Aside from the foregoing, the Employer's assistant security
coordinator testified that at a hearing conducted to determine
whether to discharge the Claimant, and at which union represen­tatives
were also present, the Claimant denied receiving a tele­phone
call from his co-worker to bring him the sodas. Here he
related the story about meeting the stranger outside the conve­nience
store. Anent the latter, when interviewed by the assis­tant
security coordinator, the co-worker denied asking the Claim­ant
to bring him the sodas.
The Employer's Safety and Operating Rules - Pinto Valley
Operations - rule #2.1, page 7, under "Discharge Without
Further Warning" reads: "Introduction of illegal drugs on the
property of the Company will be cause for discharge without
further warning. 1t (Exh. i4).
69
Relative to evidence or the lack of evidence, concerning
the issue as to whether the contents of the plastic bag was
indeed marijuana, two of the female guards had seen marijuana
before and knew what it looked like; one had taken a course in
drugs and drug use. The assistant security coordinator testi-fied
that he heard the police investigator state to the County
Attorney that the chemical analysis of the contents of the
plastic bag showed that it was usable marijuana, in excess
of 21 grams (Tr. p. 34). He, himself, never saw the written
report. The Claimant was subsequently served with a summons
and complaint by the Justice Court charging him with the
illegal possession of marijuana (Exhs. 11, 12).
Section 23-775 of the Arizona Revised Statutes provides,
in part that, "an individual shall be disqualified for benefits
after he has been discharged for wilful or negligent misconduct
connected with his work." Arizona administrative rules and
regulations, in A.C.R.R. R6-3-5105 defining "misconduct"
states:
A.I.a. "Misconduct connected with the work"
means any act or omission by an
employee which constitutes a material
or substantial breach of the
employee's duties or obligations
pursuant to the employment or con­tract
of employment or which
adversely effects a material or sub­stantial
interest of the employer.
* * *
b.2. A claimant need not have actually acted
with intent to wrong his employer to
result in a finding of misconduct con­nected
with the work. Misconduct may
be established if there is indifference
to and neglect of the duties required
of the worker by the contract of employ­ment,
or a violation of any material
70
lawful duty required under the employment
contract when such duty is expressly or
impliedly set fort~ to the worker and the
facts show that the worker should have
reasonably been able to avoid the situa­tion
which brou ht about his dis char e
(underscoring supplied •
Finally, and as here relevant, the said rules and regulations
in
A.I. Evidence is that which furnishes any mode
of proof or that which is submitted as a means
of learning the truth of any alleged matter of
fact. This evidence is usually in the form of
oral or written statements of a claimant,
employer, and/or witnesses ••••
B. Burden of proof and presumption
1. The burden of proof consists of the require­ment
to submit evidence of such nature that,
taking all other circumstances into account, the
facts alleged appear to be true. When this bur­den
has been met, the evidence becomes proof.
* * *
C. Weight and sufficiency
1. Evidence must be evaluated during the course
of adjudication to determine whether it is suffi­cient
to make a decision ••••
2. When sufficient evidence has been obtained,
all the facts available must be weighed ••••
* * *
b. Specific detailed facts must be given
more credence than general statements.
It is our considered opinion that the Tribunal applied a
rule of evidence far afield of that enunciated in administrative
law proceedings when it found that the evidence "does not con-elusively
establish that the Claimant knowingly transported an
illegal drug on the Employer's premises." In Woodby v. Immig. & Nat.
Servo 365 U.S. 276 (1966), the Unite4 States Supreme Court, in
considering the burden of proof requirement in administrative
7 1
law proceedings, held that the burden is met when supported by
a preponderance of the evidence.
The facts in the instant matter, as outlined above, clearly
show, by a preponderance of the credible evidence, that the
Claimant did indeed introduce an illegal drug upon the premises
of his Employer. The identity of the drug was described in no
uncertain terms by the security guards who discovered it and was
corroborated by laboratory analysis. While the latter was, with­out
question, hearsay evidence such evidence is generally admis­sible
in administrative proceedings provided that it is relevant,
and of a type commonly relied upon by reasonably prudent men in
the conduct of their affairs. Our careful review of the record
leads to no conclusion other than that the plastic bag found at
the bottom of the shopping bag contained marijuana.
The Claimant's testimony as to how he came into possession
of the shopping bag and its contents, and why he delivered same
to his Employer's guard shack, begs speculation.
Here was a situation where the Claimant was accosted by a
stranger who 'looked like a narcotics agent', and without
further ado, consented to drive some several miles to deliver
sodas to a friend at the Employer's premises. It is likewise
subject to speculation why the Claimant failed to examine the
contents of the bag given him by a complete stranger, and why
he lingered so long at the guard's shack after he made the
delivery.
The weight of the evidence establishes the Claimant
introduced an illegal drug upon the premises of the Employer
contrary to its rules which expressly provide for discharge
72
withou~ further warning.
Misconduct, within the meaning and intent of the Employment
Security Law, has clearly been established in this case, and we
so find.
DECISION
The decision of the Appeal Tribunal is reversed.
The Claimant is discharged for misconduct in connection with
his employment, and is disqualified from February 22, 1981
through May 2, 1981, and his total award reduced by $760., eight
times his weekly benefit amount.
The Employer's experience rating account shall not be charged
for benefits paid the Claimant as a result of this employment.
This decision creates an overpayment if the Claimant was
paid benefits during all or part of the period of disqualifi-cation.
DATED this 10th day of November, 1981.
UNEMPLOYMENT INSURANCE APPEALS BOARD
Reana K Sweeney, Chairman
Eugene R. Murray, Member
Robert D. Sparks, Member
THIS DECISION DESIGNATED AS
A PRECEDENT DECISION BY THE
DEPARTMENT OF ECONOMIC SECURITY
ON June 1, 1982.
73
UNEMPLOYMENT INSURANCE APPEALS BOARD
DEPARTMENT OF ECONOMIC SECURITY
STATE OF ARIZONA
Precedent Decision
No. PD- 112
Formerly Decision No.
B-1107-81 (AT 4102-81)
In the Matter of:
MILLARD,
Claimant.
AND
DEC- -I -S -IO-N
AFFIRMED
FOODMAKER, INC.,
Employer.
THE CLAIMANT has petitioned for review of the decision of the
Appeal Tribunal which held him ineligible for the receipt of unem-ployment
insurance benefits.
The Appeals Board has carefully reviewed the record in this
case, including the exhibits and the transcript.
raised in the petition have been considered.
The contentions
We find no material error in the findings of fact. The
reasons for the decision are founded upon a proper application of
the law to the facts. We therefore adopt the [following]
Tribunal's findings of fact, conclusions of law, and reasons
therefor, as our own.
[The claimant was last employed by the employer, a fast food
restaurant, for approximately three months until he was dis­charged
on May 21, 1981 for his failure to perform his duties
according to standards set by the employer.
74
The claimant had primarily four duties to perform
during the early morning hours: cleaning and pre­paring
the deep fryers for use, performing outside
maintenance, preparing vegetables for use, and
mopping and sweeping the interior. The claimant
was given four and one-half hours to perform these
tasks. The claimant consistently took longer than
scheduled. On one occasion the claimant was told
that a member of the restaurant's management would
be by to inspect the restaurant. The claimant
performed the scheduled tasks in four hours. When
asked why he was able to perform the tasks on that
day, the claimant replied that he tried hard. When
asked if he could try hard every day the claimant
replied that he could.
After the claimant was discharged, his replacement
was consistently able to perform the same and
additional duties within three and one-half hours.
The employer has contested a finding the claimant
was discharged for reasons other than misconduct
in connection with the employment. This issue
involves the application of Sections 23-775 and
23-727 of the Employment Security Law of Arizona.
Arizona Administrative Rules and Regulations, in
Section R6-3-51300, provide in pertinent part as
follows:
1. A worker bas the implied duty of performing
his work with ordinary care and diligence
and of making reasonable efforts to live up
to such standards of performance as are
required by his employer. Misconduct gener­ally
arises when a worker knowingly fails to
exer~ise ordinary care in the performance
of his duties.
2. Ordinary care means that degree of care which
persons of ordinary prudence are accustomed
to exercise under the same or similar circum­stances,
having due regard to his or others'
rights and safety and to the objectives of
the employer. This standard is general and
application will vary with the circumstances.
For example, the ordinary care expected of a
precision engineer will vary considerably
from the care expected of a ditch digger.
The accepted standard of performance estab­lishes
what is ordinary care.
75
3. This does not mean that every claimant dis­charged
because of unsatisfactory work per~
formance is subject to disqualification. In
the absence of gross carelessness or negli­gence,
or recurrence of ordinary carelessness
or negligence, the claimant's failure to per­form
his work properly is presumed to be
attributed to good faith error in judgment,
inability, incapacity, inadvertence, etc. A
conscientious employee may be unable to per­form
his duties to the satisfaction of his
employer because of limited mental capacity,
inexperience or lack of coordination. If
such person is discharged for unsatisfactory
work his discharge is not for misconduct.
Arizona Administrative Rules and Regulations, in Section
R6-3-513l0, provide in pertinent part as follows:
A. Duties not discharged
1. When an employee is given certain tasks
to do, an employer may expect that such
duties will be performed in accordance
with the ability of the worker. Failure
to complete assigned work will be con­sidered
the same as improper completion
of work. The reason(s) for the nonper­formance
or improper performance will
determine whether there was misconduct.
2. A worker discharged for failing to do work
which he could reasonably have been able
to do or who does work improperly without
reasonable excuse, is discharged for mis­conduct.
Important considerations are:
a. The worker's knowledge and understand­ing
of his responsibilities; and,
b. The extent of his opportunity and abil­ity
to do his work properly.
In this case, the claimant was discharged for failing to per­form
his work to standards set by the employer. The claimant
established that he could meet the standards when he tried
hard and that he should be able to try hard each day. The
claimant cannot explain his inability to adequately perform
the work and the claimant's replacement was able to perform
more work in substantially less time. Accordingly, the
Tribunal finds that work connected misconduct has been
established.j
76
In the petition, the Claimant contends that he performed his
work to the best of his ability, that the Tribunal was improperly
influenced in its finding regarding the ability of the Claimant
by the Claimant's successor's ability to do the job within the
time required, and that neither gross negligence nor carelessness
were established. The test to be applied in determining whether
the Claimant's failure to perform his duties constitutes miscon-duct
is found in A.C.R.R. R6-3-51300, which provides:
1. A worker has the implied duty of performing his
work with ordinary care and diligence and of making
reasonable efforts to live up to such standards of
performance as are required by his employer. Mis=
conduct generall: arises when a worker knowingry-fails
to excercise ord1nary care in the performance of his
duties.
2. "Ordinary care" means that degree of care which
persons of ordinary prudence are accustomed to excer­cise
under the same or similar circumstances, having
due regard to his or others' rights and safety and
to the objectives of the employer. This standard is
general and application will vary with the circum­stances.
For example, the ordinary care expected of
a precision engineer will vary considerably from the
care expected of a ditch digger. The accepted stan­dard
of performance establishes what is ordinary care.
3. This does not mean that every claimant discharged
because of unsatisfactory work performance is subject
to disqualification. In the absence of gross care­lessness
or negligence, or recurrence of ordinary
carelessness or negligence, the claimant's failure to
perform his work properly is presumed to be attributed
to good faith error in judgment, inability, inca­pacity,
ir.advertence, etc. A conscientious employee
may be unable to perform his duties to the satisfac­tion
of his employer because of limited mental capacity,
inexperience, or lack of coordination. If such person
is discharged for unsatisfactory work his discharge is
not for misconduct (emphasis added).
The rule requires that the Employer establish either gross
carelessness or negligence ~ a recurrence of ordinary carelessness
or negligence. A review of the record shows the evidence is
77
uncontroverted that the Claimant repeatedly failed to complete his
duties in the allotted time. It is also uncontroverted that on
one occasion, when the Claimant was aware of an impending visit of
corporate management personnel, he was able to complete his tasks
in less than the allotted time. Thus, the Claimant had the abil-ity
to meet the Employer's standards. The Tribunal's finding of
misconduct is further supported by administrative rule A.C.R.R.
R6-3-513l0 and the Claimant's testimony.
A.C.R.R. R6-3-513l0 provides in part:
A(2) A worker discharged for failing to do work which
he could reasonably have been able to do or who does
work improperly without reasonable excuse, is discharged
for misconduct. Important considerations are:
a. The worker's knowledge and understanding of his
responsibilities, and
b. The extent of his opportunity and ability to do
his work properly.
The record reveals the following testimony (Tr. pp. 21, 22):
[Hearing Officer]
"Q Okay, now do you recall the day that you got the job
done very quickly because some supervisor was coming
this day?
[Claimant]
A Yeah, I remember that.
Q Okay, why were you able to get tcings done so quickly
on that day as opposed to the others?
A Well, I guess I wanted to help Steve to show the boss
that we could get it done, I guess.
Q What did you do differently that day than -
A I don't remember, but I know - you know -
Q Why would you be able to meet it that day, meet the
requirements that day and not the other days?
A I honestly don't know.
78
Q No ideas?
A Maybe it was because - you know, I really tried
real hard.
Q Any reason why you couldn't try real hard the
other days or -
A Not that I know of."
Thus, the Claimant understood his responsibilities and could
carry them out in the time required when he "tried real hard".
The Claimant's repeated failure to meet the reasonable standards
of the Employer having been established, coupled with the Claim-ant's
having neither advanced nor established any reasonable
excuse thereof at the hearing, amply support a finding of mis-conduct.
Evidence of the ability of others to perform the duties
in question, while not dispositive of the Claimant's ability to
perform same, has probative value as to the degree of difficulty
of those duties.
The weight of the evidence supports the Tribunal's findings.
We find nothing in the record which would lead us to change the
decision.
ACCORDINGLY, the decision of the Appeal Tribunal is affirmed
on the basis of the record.
DATED this 25th day of November, 1981.
UNEMPLOYMENT INSURANCE APPEALS BOARD
Reana K Sweeney, Chairman
Eugene R. Murray, Member
Robert D. Sparks, Member
THIS DECISION DESIGNATED AS
A PRECEDENT DECISION BY THE
DEPARTMENT OF ECONOMIC SECURITY
ON June 1.1982.
-q
UNEMPLOYMENT INSURANCE APPEALS BOARD
DEPARTMENT OF ECONOMIC SECURITY
STATE OF ARIZONA
Precedent Decision
No. PD- 113
Formerly Decision No.
B-13l4-8l (AT T-2243-8l)
In the Matter of:
EVANS,
Claimant.
AND
AFFIRMED
K-MART CORPORATION,
Employer.
THE EMPLOYER petitions for review of the decision of the
Appeal Tribunal which reversed the determination of the Deputy and
held that the Claimant was discharged for reasons other than mis-conduct
connected with the work, and the Employer's experience
rating account shall be charged.
The petition has been timely filed, and the Appeals Board has
jurisdiction pursuant to A.R.S. §£23-671(C) and 23-672(C). We
have carefully reviewed the record in this case, including the
transcript of the hearing, and the exhibits. The contentions in
the petition have been considered.
THE APPEALS BOARD FINDS no material error in the Tribunal's
findings of fact. The reasons for the decision are founded upon
a proper application of the law to the facts. We, therefore, adopt
the Appeal Tribunal's findings of fact, reasoning, and conclusions
80
of law as our own [as follows].
[The claimant was employed as a cashier for "X" Retail
Corporation, Sierra Vista, Arizona, for four months
until she was discharged on September 15, 1981.
The claimant was discharged for violating a company
rule against ringing up orders for friends or rela­tives.
The claimant received a~d signed a copy of
the rules. They prohibit this without defining
"friends" or "relatives". On the day of discharge
she left her register and spoke to a lady from her
church. The claimant later rang up the church mem­ber's
order. The claimant admitted to her super­visors
that she rang up her "sister" and previously
rang up orders for friends. The claimant had never
been warned about this conduct.
The claimant alleged that her church members were a
special kind of an acquaintance who were more than
friends. However, she did not consider them to
fall within the prohibition against ringing relatives
and friends. When sh~ said she rang up friends she
meant repeat customers.
The assistant manager had discharged other employees
for ringing up friends. The'company rule requires
immediate discharge and no warnings are necessary.
The claimant has contested a determination which
held her discharge warranted disqualification. The
issue involves the application of Section 23-775
and Section 23-727 of the Employment Security Law
of Arizona.
Arizona Administrative Rules and Regulations, in
Section R6-3-51485, provide in pertinent part as
follows:
A. 1. An employee, discharged for violating a
company rule, generally is considered dis­charged
for misconduct connected with the
work. This principle is based on the theory
that when hired, an employee agrees to abide
by the rules of his employer. This section
covers rules peculiar to a particular
employer, and not rules constituting the
general code of industrial misconduct. In
order for misconduct connected with the work
8 I
to be found, it must be determined that the
claimant knew or should have known of the rule
and that the rule is reasonable and uniformly
enforced.
2. Recognition must be accorded to the type of
business in which the employer is engaged and
other surrounding circumstances. The rule must
be reasonable in light of public policy and
should not constitute an infringement upon the
recognized rights and privileges of workers as
individuals. Rules to affect the employee's
conduct outside the employer's premises and
which could not reasonably affect the employer's
interests are generally considered unreasonable.
The claimant was discharged for violating a known
company rule by ringing up a customer she described as