Yellow Cab Co. v. California Unemployment Insurance Appeals Board

194 Cal. App. 2d 343, 15 Cal. Rptr. 425, 1961 Cal. App. LEXIS 1824

• Court: California Court of Appeal
• Decided: July 27, 1961
• Docket: Civ. 25134
• Status: Published

Opinions

LILLIE, J.

Frank Seipp, Jr., worked for respondent Yellow Cab Company between September 26, 1956, and October 7, 1956; thereafter he obtained employment elsewhere and as a result of its termination was awarded unemployment insurance benefits effective May 12, 1957. Inasmuch as respondent was a base-period employer (Seipp’s base period was January through December 1956), the Department of Employment charged its account with a portion of the benefits granted Seipp; however, under section 1032 of the Unemployment Insurance Code, respondent can relieve its reserve account of such charges if it can prove either that Seipp “left the employer’s [respondent] employ voluntarily and without good cause or was discharged by reason of misconduct in connection with his work.” Thus on June 6, 1957, it requested the department to make a ruling on the termination of Seipp from its employment; the department ruled that he had left respondent’s employ with good cause and that the charges to its reserve account must stand. Respondent appealed to the referee, who reversed the ruling. On its own motion the Unemployment Insurance Appeals Board set aside the decision of the referee; held that Seipp was not discharged but voluntarily left respondent’s employ and that there was no prima facie showing he left without good cause; and affirmed the decision of the department. Thereafter respondent filed a petition for writ of mandamus to review the decision of the board. The lower court found that Seipp “was discharged by petitioner and did not voluntarily quit” (Findings of Fact, par. 5), and concluded that respondent “made a prima facie case that Frank Seipp was discharged” (Conclusions of Law, par. 4) and that his “action in failing to return to work without leave of absence having been given him was misconduct” (par. 5); granted the writ; and ordered the board to set aside its decision. From this judgment the board appeals.

The record reveals the following undisputed facts. Seipp began working for respondent as a cab driver on September 26, 1956; he was given a set of “Operating Regulations” which in pertinent part provided: 11 Should you be sick or for any valid reason unable to report for work, notify your garage superintendent not less than two hours before the time you are due out. . . . Any driver who is absent without leave for seven days will be terminated. Any day off not okayed by the garage superintendent will be counted as AWOL time.” Seipp worked for 11 days; on the 12th day, October 7, 1956, without notifying respondent or giving any reason therefor, he failed to report for work; he did not communicate with respondent then or at any time thereafter and never advised it of his reason for failing to report. His pay for the 11 days’ work from September 26, 1956, to October 7, 1956, amounted to $56.70; after October 6 Seipp obtained employment elsewhere; he at no time ever sought reinstatement with respondent. Seipp having failed to report for work on October 7, respondent held his time card for seven working days at the end of which, pursuant to its regulations, it marked the same as a “discharge” for an unauthorized absence from work; respondent never notified Seipp of this action.

Seipp was not present at the hearing; respondent neither subpoenaed him to appear nor took his deposition; it did not request the department to obtain information from its records concerning Seipp’s employment after leaving respondent; and it presented no evidence of its working conditions or salary scale or how many hours Seipp worked during the 11 days.

The parties agree, under California Portland Cement Co. v. California Unemp. Ins. Appeals Board, 178 Cal.App.2d 263 [3 Cal.Rptr. 37], that the burden is on respondent to produce evidence which would establish a prima facie case that Seipp was “discharged by reason of misconduct in connection with his work.' ’ However, respondent denies that it has any additional burden of proving the negative fact that Seipp did “not quit” (R.O.B., p. 4), under the first alternative of section 1032, arguing that it is neither in accord with the disjunctive wording of the statute nor compatible with the intent and policy of unemployment benefit legislation to require it to prove both propositions under section 1032— that Seipp left its employ “voluntarily and without good cause” and that he was “discharged by reason of misconduct in connection with his work. ’ ’ The record shows that respondent has not sought relief under the first alternative, but has elected to proceed only under the second; thus, it contended before the board that Seipp “was discharged for reasons constituting misconduct in connection with his work” (Ruling Decision No. 121, p. 2), and the board defined the issues accordingly. However, implicit in the board’s holding that Seipp “voluntarily left the employer’s employ” (p. 4) is the finding that respondent did not sustain its burden of proving that he was discharged. Thus, since it is conceded by respondent “that there is no sufficient evidence in the record to show that Seipp did not have good cause for quitting, if it is found that he quit” (R.O.B., p. 13), we are in accord with respondent’s view that the only matter before us is whether it has sustained its burden of proving that Seipp was discharged by reason of misconduct connected with his work, under the second alternative set forth in section 1032.

We know of no California case wherein the second proposition has been discussed; thus we draw on the court’s opinion in California Portland Cement Co. v. California Unemp. Ins. Appeals Board, 178 Cal.App.2d 263 [3 Cal.Rptr. 37], construing the first alternative under section 1032. Therein the petitioner (employer) offered proof that Carter quit his job stating he was leaving to obtain other work, and that Carter left for a cause not attributable to the company. The court held this insufficient to establish a prima facie ease under section 1032, in that the employer did not prove that Carter did not have a compelling personal reason to quit. In discussing the scope of appellate review and what constitutes a prima facie showing, the court said at page 269 : “In reviewing a decision of the trial court, the reviewing court, on facts such as these, determines only whether the decision is supported by the record. (Ashdown v. State of Calif. Dept. of Emp., 135 Cal.App.2d 291, 299 [287 P.2d 176].) The inquiry is one of law: whether, on the undisputed facts, petitioner made a prima facie showing that Carter left his employment with petitioner voluntarily and without good cause. (4 Cal.Jur.2d 488, § 606; Haynes v. Unemployment Comp. Com., 353 Mo. 540 [183 S.W.2d 77, 80].)”; and again at page 274: “Petitioner argues that it made a prima facie case that Carter left his employment without good cause by circumstantial evidence ; that the fact is necessarily inferable from the evidence it produced. . . . We cannot say, as a matter of law, that the only inference dedueible from the evidence is that Carter quit without good cause.” As to what constitutes a prima facie case the court pointed out at page 274: “A prima facie showing requires proof of facts from which a legal conclusion can be drawn. The determination whether an employee left his employment ‘without good cause’ is, in effect, the drawing of a legal conclusion from a set of facts. ‘Good cause’ cannot be determined in the abstract any more than can any other legal conclusion. It can be determined only in relation to a set of facts.”

Bearing in mind the burden of proof under section 1032, and that ‘ ‘ [t] he employer assumes the risk of nonpersuasion” (California Portland Cement Co. v. California Unemp. Ins. Appeals Board, 178 Cal.App.2d 263, 268 [3 Cal.Rptr. 37]), to prevail, respondent must not only establish that Seipp was discharged but that his discharge was by reason of misconduct in connection with his work. Thus mere proof that it marked his time card as a “discharge” is not sufficient; it must also prove that this act, in substance and in fact, constituted a termination of the employment relationship between it and Seipp, and that the latter was terminated by reason of misconduct in connection with his work—for an infraction of company regulations relative to unauthorized absence. To prove an effective discharge respondent must show that at the time, an employment relationship between it and Seipp existed. And, “in the absence of any other evidence” (R.O.B., p. 8) respondent has attempted to establish the continued existence of this relationship after October 6 by resorting to the presumption “ [t]hat a thing once proved to exist continues as long as is usual with things of that nature” (Code Civ. Proc., § 1963, subd. 32), contending that thus having proved the continued employment relationship it was entitled to, and did, discharge Seipp for having been absent for seven days without leave in violation of company regulations.

However, respondent’s reliance on the presumption and on the fact the time card shows a “discharge,” no more precludes inquiry into whether the “discharge” was only a matter of form, than the fact that Carter left for a cause not attributable to his employer precluded inquiry into “good cause” to determine whether he had a compelling personal reason to quit, in California Portland Cement Co. v. California Unemp. Ins. Appeals Board, 178 Cal.App.2d 263 [3 Cal.Rptr. 37]. In both cases the burden is on the employer, and in both, a determination of the vital issue can be made only in relation to the facts, which here permits the court to look past form to find the substance of the “discharge.” This is not new; such inquiry is made in “trade dispute” cases under section 1262, Unemployment Insurance Code. In construing the volitional test established in Bodinson Mfg. Co. v. California Employment Com., 17 Cal.2d 321 [109 P.2d 935], the courts look beyond form to find the subjective intent, the substance of the termination, holding that the final act is not necessarily the controlling factor in determining whether an employee voluntarily left his employment or was discharged. (McKinley v. California Emp. Stab. Com., 34 Cal.2d 239 [209 P.2d 602] ; and Gardner v. State, 53 Cal.2d 23 [346 P.2d 193].) And it is apparent from the administrative decisions in this state, “entitled to great weight” although not necessarily controlling (Coca-Cola Co. v. State Board of Equalization, 25 Cal.2d 918, 921 [156 P.2d 1]), that an employer cannot create a “discharge” simply by so marking his records; that under section 1032 the real fact of termination shall be determined. (California Unemp. Ins. Appeals Board Benefit Decision No. 6372.) In that case the board, holding .that an employee had voluntarily quit without good cause and the employer’s account should not be charged, said “. . . although as a matter of form the employer discharged this claimant, the claimant herein, as a matter of actual fact voluntarily left his work when he refused to work on Sundays in accordance with the instructions of his employer.”

While respondent has only to sustain its burden under the second alternative of section 1032, the issue of discharge and whether it was for misconduct herein necessarily involves the determination of whether, in fact, Seipp voluntarily quit. With this respondent agrees—“ [T]he single issue is whether Seipp was discharged or whether he quit.” (R.O.B., p. 13); but we have no concern here with whether Seipp left respondent’s employ with or without good cause except insofar as his reason for failing to report bears upon whether he then actually intended to quit. Appellant has directed our attention to a compilation in the C.C.H. Unemployment Insurance Reports of a number of out-of-state administrative decisions involving factual situations somewhat analogous to the one at bar, in which the cause of termination was determined in connection with eligibility for employment insurance benefits. Not all of these cases make express distinction between “voluntary leaving” and “discharge”; but in all, inquiry was made into the true cause of the employee’s failure to report for work where he never returned and was subsequently discharged, and it was concluded that he voluntarily quit. An employee, to be transferred to another shift, who left without explanation and 30 days later was terminated for his continuous absence, was held to have voluntarily left without good cause, not as having been discharged for absenteeism (Delaware, §1975.23, p. 11,162). One, who left suitable work at a prevailing wage without choosing an available alternative to keep his job open, was held to have voluntarily left (Alaska, § 1975.16, p. 5758); so too an employee who later advised that his two-day absence was due to a drunken spree (Maryland, § 1975.163, p. 23,097), one who left for illness and did not seek reinstatement upon recovery (Michigan, § 1975.163, p. 25,225-25,226), and an employee who took a day off to attend a wedding and never returned (Missouri, § 1975.163, p. 28,-127). In Indiana and New York cases, the employee’s failure to report was held to constitute a voluntary leaving without good cause and not a discharge for misconduct—in the former the employee left when he was told he could not take a leave (§ 1975.021, p. 17,151), and in the latter he refused to accept additional duties (§ 1975.035, p. 712). In a Nevada decision the board considered the employee as voluntarily separated from her work without good cause where she was found to be absent without notice to her employer (§ 1975.163, p. 31,143); the same was held by the court to be a “voluntary quit” in Maltese v. Unemployment Comp. Board of Review, 190 Pa. Super. 123 [152 A.2d 773].

Thus inherent in the inquiry is the question—did Seipp’s act of failing to appear for work on October 7 constitute a voluntary leaving of his employment—if it did, it was the final act of terminating the employment relationship, regardless of why he quit or whether he had good cause to do so (respondent concedes that there is no sufficient evidence in the record to show that Seipp did not have good cause for quitting), and respondent’s subsequent act of “discharge” was wholly ineffective; if it did not, the employment relationship continued and respondent could, and did seven days later, properly discharge him for an infraction of a company rule regarding unauthorized absence from work. Respondent concedes that Seipp cannot in fact be discharged by it unless the employment relationship existed between them at the time (R.O.B., pp. 7, 10), submitting that the evidence supports his discharge for misconduct “assuming Seipp had not earlier terminated the employment relationship.” (R.O.B., p. 7). Thus, if the evidence shows that the employment relationship ended on October 7, Seipp thereafter was no longer an employee of the respondent subject to its control, was under no obligation to report or duty to return to work and could be neither guilty of misconduct in connection with his work nor discharged from its employ; and that respondent after seven days marked his time card as a “discharge” could constitute at most a clerical act or record entry made for its own convenience in keeping its books.

To establish that Seipp was “employed at the time respondent acted to terminate the employment relationship by marking his time card a ‘discharge’ ” (R.O.B., p. 7), respondent relies on the presumption in section 1963, subd. 32, Code of Civil Procedure, “in the absence of any other evidence.” (R.O.B., p. 8.) This it urges in the face of undisputed proof that on October 7 Seipp failed to report for work and never thereafter returned or sought reinstatement ; and in the face of substantial evidence, which respondent ignores, plainly pointing to the fact that on October 7 Seipp simply quit his job for other employment at better pay. In his reason for failing to report lies Seipp’s intent to then quit —and little is more indicative of this intention than the low wage he earned with respondent. Intent was a factor in determining whether the employee voluntarily left in Maltese v. Unemployment Comp. Board of Review, 190 Pa.Super. 123 [152 A.2d 773]. The court there held that one who left work “without notice or any apparent intention of returning for work” voluntarily quit without good cause. So, too, in a Michigan administrative decision (App. Bd. Dee., Dkt. B714937-8156) the board said: “We find that the record and testimony clearly establishes that the claimant was absent on the days in question and that she failed to notify the employer within three days as required by the shop rule. There was apparently no reason why the claimant could not have complied with the shop rule regarding reporting had she so desired and we find her failure so to do indicates an intention on her part to abandon her job. It is accordingly our finding that in view of claimant’s failure to report for work for three consecutive days or to notify the employer as required by shop rule, she voluntarily left her work ...” (emphasis added).

Seipp began driving a cab for respondent on September 26; he continued working for 11 days through October 6. There being no evidence to the contrary, we assume that during this time his work was satisfactory, he complied with all company regulations and worked steadily. For the 11 days he earned $56.70, on the basis of a five-day week, the sum of $23.95 a week. Having been issued a copy of the company regulations at the time he was hired, we also assume he was familiar with them. On October 7 Seipp did not report for work nor did he then or later communicate with respondent; after October 6 he took a job with another employer. Seipp at no time sought to have respondent keep his job open nor did he ever seek reinstatement. Bearing in mind the presumption “ [t]hat a person is innocent of [a] ... wrong” (Code Civ. Proc., § 1963, subd. 1), that he was paid $23.95 for what we assume to be a 40-hour week, that after October 6 he obtained another job, and that he never sought reinstatement with respondent, it is obvious from his act of failing to appear on October 7, that on that day Seipp intended to, and did, quit to seek or take better-paid employment. There was apparently no reason why Seipp could not have complied with the regulation requiring him to report, with which he was familiar, had he so desired and, inasmuch as his previous eleven days work was satisfactory, we find his failure to report on the twelfth day indicates an intention on his part to then abandon his job. The act of Seipp under the circumstances was as much a voluntary leaving for other work, as was the act of Carter in California Portland Cement Co. v. California Unemp. Ins. Appeals Board, 178 Cal.App.2d 263 [3 Cal.Rptr. 37], even though the latter stated that was his reason for quitting. Therein the court said at page 271: ‘ ‘ There is no question but that Carter left his employment with petitioner voluntarily; he was not laid off or discharged; he left on his own; he willed and intended at the time to leave his job." Seipp having quit on that day had no obligation at any time thereafter to return to work for respondent.

Respondent’s act of marking Seipp’s time card as a "discharge" seven working days after he quit does not alter the effectiveness of Seipp’s termination. Having severed his employment relationship on October 7, Seipp neither was bound by company regulations nor continued under respondent’s control, thus, he could not have been guilty of misconduct or subject to discharge by respondent. Although leaving without notice may not be the best way to sever an employment relationship, it does not here affect the validity or effectiveness of his act of quitting. Further, we entertain a doubt that respondent then actually intended its act of discharge to terminate any employment relationship, for it never attempted to notify Seipp of its action. Marking Seipp’s time card as a "discharge" was no more, and then intended to be no more, than a clerical function merely acknowledging in respondent’s books and records, for its own convenience, that the employment relationship between it and Seipp had been terminated.

For the foregoing reasons we find that respondent has failed to establish a prima facie showing that Seipp was discharged by reason of misconduct in connection with his work, reverse the judgment of the court below and affirm the decision of the Unemployment Insurance Appeals Board.

Wood, P. J., concurred.