Arizona Department of Economic Security v. Magma Copper Co.

607 P.2d 10, 125 Ariz. 27, 1979 Ariz. App. LEXIS 722
CourtCourt of Appeals of Arizona
DecidedApril 19, 1979
DocketNo. 1 CA-CIV 3965
StatusPublished
Cited by4 cases

This text of 607 P.2d 10 (Arizona Department of Economic Security v. Magma Copper Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Arizona Department of Economic Security v. Magma Copper Co., 607 P.2d 10, 125 Ariz. 27, 1979 Ariz. App. LEXIS 722 (Ark. Ct. App. 1979).

Opinions

OPINION

DONOFRIO, Judge.

The Department of Economic Security appeals from a judgment of the Superior Court setting aside a decision of the Department which determined that an offer of internal transfer and continued employment made by the Appellee Magma Copper Company to Jimmie Riddles, an unemployment compensation claimant was not an offer of “suitable work” pursuant to A.R.S. § 23-776,1 which provides for disqualification of claimants who fail to accept offers of suitable work. We affirm the judgment of the trial court.

Riddles was an underground employee of Magma in the machine department. We quote from the Department’s Appeal Tribunal’s Findings of Fact;

“The claimant was employed from July 3, 1975, through January 26, 1976, as an underground helper in the machine department for [the Appellee Magma].
On January 14,1976, the employer posted notices advising employees there were to be lay offs of some workers by February 2, 1976. The notice indicated there were some vacancies for helpers to work on the surface. In addition to the written notice, a supervisor and the employment agent personally urged the claimant to apply for the transfer. Applications were to be submitted by January 16, 1976. Workers who transferred were to receive an eighteen per cent hour reduction [from [29]*29$5.69 to $5. hour]. A worker could not return to the underground job until he worked a minimum period of six months on the surface. After the six months, if an opening occurred, employees could bid on the job, and depending on seniority, may or may not be returned to the former position.
The employment agent reported the claimant had refused to apply for the transfer because he wanted to be a truck-driver; however, the claimant informed the Department he did not apply because it was a loss of pay, seniority and expected the lay off to be temporary. The claimant was recalled on April 12, 1976, however refused because he had found other employment. The claimant was laid off due to a lack of work on January 26.”

The Department’s hearing deputy initially held that the invitation to apply for transfer did not constitute a firm and unqualified offer of employment. Thereafter, appellee sought administrative review. We now quote from the Appeal Tribunal’s “Reasonings and Conclusions of Law” and “Decision”:

“REASONINGS AND CONCLUSIONS OF LAW:
The employer has contested a determination which held the claimant established good cause for failure to accept work. The question raised must be decided under Section 23-776 of the Employment Security Law of Arizona * * * .
The Department’s Benefit Policy Rules under which the Tribunal must make its decision provide for a disqualification to be assessed if the claimant refuses an offer of bona fide employment which is suitable.
The claimant refused an offer to transfer to similar work at a reduction in pay because he would have lost recall rights to his former position. We find that the loss of recall rights made the offered work unsuitable.
DECISION:
1. The deputy’s determination is affirmed. The claimant refused an offer of unsuitable work. No disqualification is applicable.”

After receiving a letter from the Director of the Department that the decision of the Appeal Tribunal would stand as the final decision of the Department, appellee filed an action in the Superior Court to set it aside. Hearings having been held by the Department, see A.R.S. § 12-910, the Superior Court reviewed the record and set the decision aside on the basis that there was no legal support for the conclusion that loss of recall rights made the offer of work unsuitable.

Appellant first contends that Appellee did not make a genuine, unequivocal offer of work. This appears to have been the hearing officer’s basis for decision. The difficulty with the contention is that while a preliminary overture or invitation to apply for work does not normally constitute an offer,2 the Department’s Appeal Tribunal appears to have found that an offer was in fact made here. While there is not an explicit finding or conclusion on the subject, the Tribunal’s decision clearly so indicates and there was evidence before it which, taken with logical inferences, supports the implicit finding. Both the trial court and this Court are bound to accept the Department’s factual determinations if reasonable support for them can be found in the record. 2 Am.Jur.2d Administrative Law, § 659. The Department’s resolution of this essentially factual matter is dispositive of the issue.

Appellant next contends that we should hold as a matter of law that an offer which was made and expired before the claimant became unemployed cannot be an offer of suitable work within the terms of § 23-776.

Appellant cites in support of its position Boeing Co. v. Employment Security Board of Review, 209 Kan. 430, 496 P.2d 1376 (1972). In Boeing, the court observed that [30]*30the skilled claimant “had not experienced any of the privations of unemployment” at the time the employer made him an offer of semi-skilled employment at a significantly reduced wage and construed the Kansas statute to require that the claimant be given “a reasonable period of time to seek work at his highest skill and rate of pay commensurate with his previous employment.” Appellant also points to the provisions of § 23-776, which in their reference to onset of disqualification and consideration of the factor of “length of unemployment” appear to contemplate responses to offers made after termination of employment.

It is clear from its decision that the Department found the pretermination offer of continued employment properly considerable as an offer of work under § 23-776. We believe that it was entitled to do so. While § 23-776 is framed with the situation of unemployment in mind, we do not find in its provisions an intent that only post-employment offers may be considered.3 In Boeing, the offer was of semiskilled labor to a skilled worker. The situation was analogous in In re Troutman, 264 N.C. 289, 141 S.E.2d 613 (1965), cited by appellant; see also United States Steel Corp. v. Department of Economic Security & Board of Review, 523 P.2d 854 (Utah 1974), and Keystone Steel & Wire Division, Keystone Consolidated Industries v. Department of Labor, 37 Ill.App.3d 704, 346 N.E.2d 399.4 The present case involves roughly parallel rather than subordinate employment. The case of Pennington v. Dudley, 10 Ohio St.2d 90, 226 N.E.2d 738 (1967), reaches a conclusion contrary to Boeing. See also Unemployment Compensation Board of Review v. W. R. Grace Co., 23 Pa.Cmwlth.

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Adams v. Cambridge Wire Cloth Co.
515 A.2d 492 (Court of Special Appeals of Maryland, 1986)
Thompson v. Arizona Department of Economic Security
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607 P.2d 6 (Arizona Supreme Court, 1980)

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Bluebook (online)
607 P.2d 10, 125 Ariz. 27, 1979 Ariz. App. LEXIS 722, Counsel Stack Legal Research, https://law.counselstack.com/opinion/arizona-department-of-economic-security-v-magma-copper-co-arizctapp-1979.