Lewis v. Administrator

540 So. 2d 491, 1989 WL 20733
CourtLouisiana Court of Appeal
DecidedFebruary 28, 1989
DocketCA 88 0490
StatusPublished
Cited by10 cases

This text of 540 So. 2d 491 (Lewis v. Administrator) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lewis v. Administrator, 540 So. 2d 491, 1989 WL 20733 (La. Ct. App. 1989).

Opinion

540 So.2d 491 (1989)

Stephen LEWIS
v.
ADMINISTRATOR, et al. and Garrett Honda.

No. CA 88 0490.

Court of Appeal of Louisiana, First Circuit.

February 28, 1989.

Stephen Lewis, Covington, in pro. per.

B.J. Francis, Baton Rouge, for defendant-appellant Office of Employment Sec. Admin.

Before CARTER, LANIER and LeBLANC, JJ.

LANIER, Judge.

This is an appeal from a district court judgment which reversed an administrative determination by the Board of Review of the Office of Employment Security of the Department of Labor (OES) that an employee was entitled to unemployment compensation benefits when he voluntarily resigned his position because changes were made to his salary agreement which resulted in decreased wages.

*492 FACTS

During the period of March 1980 to March of 1986, Stephen K. Lewis was employed by Covington Cycles, Inc. d/b/a Honda of Covington (Covington). On March 22, 1986, Covington sold its assets[1] to R.E. Garrett Sales & Service, Inc. d/b/a Garrett Honda/Yamaha (Garrett). Lewis continued his employment with Garrett until he voluntarily resigned his position effective November 22, 1986.

On November 24, 1986, Lewis filed a claim for unemployment compensation benefits with OES, contending he left his employment for good cause because his salary had been reduced by approximately $80 per week and certain fringe benefits had been taken away. La.R.S. 23:1622-1625. Garrett resisted this claim. On December 15, 1986, OES ruled that Lewis was entitled to benefits because his salary was reduced and this was good cause to resign.

On December 19, 1986, Garrett took an appeal to the Appeal Tribunal of OES. La. R.S. 23:1628 and 1629. The appeal referee held an evidentiary hearing on January 22, 1987. On January 27, 1987, the appeal referee reversed OES and disqualified Lewis from receiving benefits because he left his employment without good cause. The appeal referee made the following factual and legal findings:

The claimant worked for the above named employer for approximately eight months until November 22, 1986. He was employed full-time as a mechanic, on a commission basis. The claimant received fifty percent of the price of the repair tickets when working on customer vehicles. When doing other work in the shop, he received a flat rate of $5.50 per hour.
Prior to March 22, 1986, the claimant worked for the previous owners, Honda of Covington, as a sales adviser. He was earning $5.75 per hour plus commission. The employer was unaware of the claimant working as a service adviser, and believed he was employed as a mechanic during his employment with Honda of Covington.
During his employment with the above named employer, the claimant's salary fluctuated as a result of business. The claimant feels his salary was reduced because the other mechanic in the shop was receiving most of the commission work while the claimant was doing shop work, at $5.50 per hour. The employer's representative testified that the commission work was given out fairly by the service manager. After notifying the employer, the claimant left this employment due to a reduction in gross wages.
. . . .
When an individual becomes unemployed and the separation issue is "leaving", then the burden of proving "good cause" as required by the above cited Section of Law is placed upon the claimant. It is well established that the claimant has this responsibility and must do so with a preponderance (reasonable) of evidence. (Chrysler v. Doyle [Doyal], 352 So.2d 322 (4th Cir., 1979).... In this instant case, the claimant did attempt to give reasons, if proven, may qualify him for Unemployment Insurance benefits. However, these reasons given by the claimant were not proven. This being so, then it must be concluded that the claimant's leaving was entirely personal and not a reason which, in turn, would qualify him for the receipt of Unemployment Insurance benefits. The claimant is not entitled to Unemployment Insurance benefits.

On January 30, 1987, Lewis appealed this ruling to the OES Board of Review. La.R. S. 23:1630-1633. On March 6, 1987, the Board of Review reversed the appeal referee and reinstated benefits for Lewis. The Board of Review made the following factual and legal findings:

The claimant worked for the named employer for approximately eight months until November 22, 1986. Prior to March 22, 1986, the claimant worked for the previous owners, Honda of Covington. He was a sales adviser, and was paid $5.75 per hour, plus commission.

*493 When the business changed hands in March, the claimant's position title was changed to mechanic, and his salary agreement changed to a commission of fifty percent of the price of the repair ticket when working on customer vehicles, or $5.50 per hour when doing other work in the shop. The claimant left the employment due to a reduction in gross wages.
. . . .
After carefully reviewing the testimony, evidence and records in this case, the Board finds that the separation from employment occurred when changes were made to the salary agreement resulting in decreased wages.
Due to the aforementioned, the Board concludes that the separation was for good cause connected with the employment. Benefits should be allowed.

On March 17, 1987, Garrett filed a petition for judicial review in the Twenty-Second Judicial District Court. La.R.S. 23:1634. In a judgment dated October 13, 1987, the district court reversed the decision of the Board of Review with the following rationale:

In the instant case the employer and the claimant were the only witnesses who testified at the administrative hearing. The Board of Review apparently totally ignored the employer's testimony that the claimant's reduction in wages resulted from his own lack of initiative and interest in applying himself to his job, without a finding that the employer's version of the facts was not credible. The Court finds the employer's version of the facts to be just as believable as the claimant's version and, therefore, finds that the claimant failed to prove his case by a preponderance of the evidence. Furthermore, even if the claimant's wages were changed, the Court does not find a substantial change in his wages.
Accordingly, the Court finds that the factual conclusions and opinion of the Board of Review are not supported by sufficient, competent evidence and that the pertinent law has been incorrectly applied to the facts.
OES took this devolutive appeal. La.R.S. 23:1634.

GOOD CAUSE FOR RESIGNATION

(OES Assignments of Error Numbers 1 and 2)

OES contends the trial court erred by reevaluating the credibility of the witnesses and reversing the ruling of the Board of Review when its appellate function is limited to questions of law according to La.R.S. 23:1634.

Lewis testified before the appeal referee that prior to working for Garrett he worked for Covington as a "service advisor" at a salary of $5.75 per hour plus commissions. Covington allowed paid vacations; Garrett did not. He was employed by Garrett as a "commission mechanic" at a salary of $5.50 per hour and, if he worked on a "customer" bike, he got $15 per hour. Garrett had two mechanics and a service manager. The service manager determined who got the commission work on the "customer" bikes, and the service manager gave most of the commission work to the other mechanic.

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Cite This Page — Counsel Stack

Bluebook (online)
540 So. 2d 491, 1989 WL 20733, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lewis-v-administrator-lactapp-1989.