*1 Dist., 20, No. 53093. Second Div. Five. Dec. [Civ. 1978.] STEINBERG, BETTY Plaintiff and v. Appellant, BOARD, UNEMPLOYMENT INSURANCE APPEALS Defendant and Respondent; SERVICE, INC.,
AMERICAN MAILING Real in Interest and Party Respondent.
Counsel Dobberteen, F. Manuel and Sandra Pettit for Plaintiff
Kenyon Monguia and Appellant. General, Klee, Jr.,
Evelle J. John J. Assistant Younger, Attorney Attorney General, Pressman, General, and Anne S. for Defen- Deputy Attorney dant and Respondent.
No for Real in Interest and appearance Party Respondent.
Opinion
STEPHENS, J. follows denial aof for writ of This appeal petition mandate. *3 was American Service for some
Steinberg employed by Mailing period 4, four 1976, over months to as a On the 4th prior February clerk-typist. her ceased and the issue is whether she was February employment terminated without cause or whether she “constructive voluntary quit.” main, coworkers; well with her in the did not they, get along
Steinberg with to the a Mr. all related only Spero. being employer, well a Wolf. This to work with the whom she worked was Mrs. inability with withdrawal from interaction others resulted Steinberg’s any 4th, however, who other than Mrs. Wolf. On the one employee, anyone in the had some years’ company, approached Steinberg experience and mumbled to her.1 continued and did something Steinberg working Mrs. Wolf a directive to to to the Steinberg respond. injected respond and other stated that she refused to talk to the employee Steinberg because it and her affected her health made ill. Mrs. adversely situation, Wolf this to He talked to about the reported Spero. Steinberg then her of either to the coworker or gave option speaking chose not to to the other discontinuing employment. Steinberg speak employee.
Did terminate under the doctrine of Steinberg’s employment “constructive as found the administrative law voluntary quit” judge, California Board and the Appeals superior The answer is in the court judge. negative. from
Here was aware that was Steinberg suffering employer stress and had taken time off for that condition. It was also emotional had for several known to this Steinberg coemployee spoken 1976, On the 4th of however the ultimatum of months. February, or terminate elected not to converse was Steinberg presented her health she desired to remain jeopardize by communicating, though an employee. same to directions to 1 At times the on how sought give Steinberg prior which due was to be done to or upset Steinberg greatly, purportedly
certain work was in the of life. the fact that Steinberg menopause period accentuated by an that the doctrine of constructive It is conceded voluntary quit situations where license union member- outgrowth employment for The doctrine was an is necessity expression ship employment. instances, for In such continued though employment. qualification nevertheless, be the act of the termination would appear employer; Stein- could not receive benefits. terminated employee unemployment rule, with the of the does not proper application quoting berg quarrel Determination Benefit from Department, Employment Development Guide, at VQ 135.14-1 (1976): when, his
“A claimant is said to have constructively quit job although chain the claimant himself set in motion the discharged by employer, no choice which resulted in of events having except employer’s *4 terminate him. can be must be it said the elements “All three present following before of his has
that a claimant constructively job. quit which committed an act The claimant “1. voluntarily services, his the to utilize “2. made employer impossiblefor and known the act the knew should have
“3. claimant or reasonably (Italics his result in the loss his employment.” jeopardize job possibly in original.) here, we review the items and three of the criteria have As record one been met. Not so the second.
The Code out two sets grounds general for “An individual for claimant benefits: disqualified disqualifying for unemployment compensation benefits if the director finds he [1] left his most recent work voluntarily without good cause [2] that he has with his most recent work.” been for misconduct connected discharged Code, Ins. 1256.) § (Unemp. the founded termination of
The though upon Steinberg’s employment, to be was found of constructive doctrine grounded upon voluntary quit, In without cause.” the fact that she job good proper “voluntarily quit adds but one factor doctrine the constructive voluntary quit perspective, after an benefits employee, obtaining unemployment prohibition 586 cause,
without This added factor is the common sense quits. recognition of the fact that where the has a choice of in action either with a reasonable or terminate complying requirement employment, has the consider refusal to an election to employer right comply quit. Even he maintains is not his acts have though quitting, acted himfor in the constructively quitting.
Both sides here that there are no court on the suggest opinions subject. We As we have disagree. semantics dimmed the analyze problem, issue. same basic issue was considered in Hildebrand v. Unemploy- ment Ins. 765, Bd. (1977) Cal.3d 151, 566 Appeals [140 Cal.Rptr. P.2d “Plaintiff’s real Cel-A-Pak, Inc., in interest 1297]: employer, party (An Cel-A-Pak, such as has a direct interest appeals. employer, benefits to former since unemployment compensation paid employees are such benefits account which is fed charged against employer’s (§ contributions We will conclude that 1026).) employer’s plaintiff was denied she benefits because properly unemployment accepted with Cel-A-Pak with full work employment knowledge Saturday work, When she refused to such requirement. subsequently perform be she must deemed to have left work without accordingly, voluntarily cause.” *5 The then remains the whether order was question reason- employer’s A able.2 similar was addressed in In the Matter Marco problem of Benefit 4847 Decision No. where a (1948) Dragell, discharged employee the contended that conduct the did to not amount to leading discharge There misconduct. the California Insurance Unemployment Appeals stated: “In Board our the claimant’s refusal to a opinion, operate not is within the class of actions we held have to constitute jackhammer However, misconduct. a worker who refuses to a reasonable wilfully obey from a order that such will refusal result in his superior may expect action, held, Such we dismissal. have tantamount to a is voluntary quit by case, therefore, the worker. In the instant we hold that the claimant cause his without when constructively quit employment voluntarily a he It he refused to reasonable order received from his foreman.”3 obey the which the of oneself outside sphere voluntary placing employable (1972) 2 The cases of v. Ins. 25 King Bd. Unemployment Appeals Cal.App.3d California 199 32 (1973) Thornton v. Human Resources Dev. Cal.Rptr. Department [101 660] of 892], 180 are relied There the to wear Cal.App.3d Cal.Rptr. upon by Steinberg. right [107 a was beard in It was held the had a constitutional to wear his question. employee right beard the under facts of that case. We have no like constitutional issue here. to the 3 Steinberg seeking void doctrine that a different result argues, entirely, have been reached in E. In the Matter John Precedent Benefit Decision No. McCoy, of
587 Section whether the has determines constructively voluntary quit. such Code codified one of the 1256.1 “quit- Unemployment to There is no reason There, criminal constitutes quitting. custody ting.” a or with to out reasonable order a refusal raise comply carry misconduct; well be level condition to the of reasonable may only v. rules Evenson (See under the reasonable work imposed. refusal Ins. Bd. (1976) Cal.Rptr. Cal.App.3d [133 Appeals 488].) have to the rules as we them facts
Applying legal expressed case, the instant we first observe an “silent of finding implicit We to the of the business involved. treatment” was detrimental running at had countenanced for least note that the “silent treatment” been also The record is to the instance of 4th. four months February woefully prior communication was an that coworker short establishing expected is it established that lack Nor condition clearly employment. required deleterious effect on coworker interaction really any company We meet of the order to a whole. the reasonableness as aspect employer’s as an order. Under such in verbal communication isolated indulge one, circumstances, we conclude that order was a reasonable cannot but, and, hence, rather, did was voluntarily quit Misconduct entitled discharged. applicable, discharge being unemployment compensation. is reversed. judgment Kaus, J.,P. concurred.
ASHBY, J. dissent. I respectfully *6 is there is this whether
The basic by appeal question presented evidence that substantial to disqualified finding appellant support in that she “voluntar- Code section 1256 under The evidence her recent without cause” left most employment.” ily most to and its inferences viewed support favorably respondent and board. lower court decision of the appeals (1976) There the board found that had the constructive doctrine been Not so. applied. 183 order was an unreasonable one. Skinner, Decision 192 cited case of In the Matter James Precedent Benefit No. The of does constitute (1976) is not in it that misconduct not holding point, merely past present (1973) 136 for cause. case of Silva v. Nelson 31 Cal.App.3d Cal.Rptr. discharge [106 held that a outburst would 908], is likewise That court merely single vulgar inapposite. for of constitute misconduct. discharge not ground for Direct American Advertising was Mailing by employed Appellant shorthand, but took as a She was hired four months. typist approximately labels, addressed statements, work, letters, envelopes, typed filing typed she took the Soon after she to do. job, else that was and given anything if not all of Most with her fellow it difficult to found employees. get along where she reached were related. whom point Quickly appellant sister, Mr. Mrs. Wolf and but the boss’s to Spero, anyone speak her last was On what turned out to be day employment, appellant who, an 68- or coworker to elderly 69-year-old according approached me, I her and to and “started mumbling something ignored appellant, told that she had to answer her work.” Mrs. Wolf continued my appellant refused, the incident Mrs. Wolf worker. When fellow appellant reported for reason brother, Mr. into Mr. to her inquired Spero appellant’s Spero. testified as follows answer her coworker. to concerning Appellant refusing with Mr. her conversation Spero: can’t work here said, or else to talk to her
“A. He ‘You you got anymore.’ I and words, but that was the exact
“I can’t remember meaning, health is that makes me ill. ‘I will talk to said, can not and My anyone ” more important.’ did not she submitted into insists she Although job, appellant quit which read as follows: “Also evidence statement handwritten notes advice, from followed doctor’s to me last to remove any given year, myself of irritation and involed that affects [jzc] source not to anything my get that I statement health. . . . Mrs. Wolfe is sister Mr. Spero—her [1Í] to because he is not correct. Mr. is the speak quit my job Spero I leave is the one that terminated didn’t my employment. quit—I ” (Italics added.) because health. job my affected 1 "However, woman was of man and wife and the pregnant there was a unit family and was hostile me and she me annoyed was the boss. She sat next to she they thought me much. and upset very *7 a week off in December with to take can check the boss—had “As a matter fact you then and there I made mind my so sick and me. So up made me aggravated because they to be can not afford I become involved will not sister, I boss’s I Wolf who me work my assignment, so told Mrs. gave “Anyway, I and this is work for you, You me my assignment. I will bother with anyone. give says it.” that It is clear that the record was not finding supports appellant She left rather than to her coworkers. discharged. voluntarily speak However, we must still consider whether the record finding supports termination, her was without cause. It is clear that though voluntary, good an that it does. no evidence to illness caused identify Appellant presented her She was not a doctor for her claimed treated by employment. by illness. She conceded that had not she been advised doctor by board, terminate her Under the rules of the employment. appeals will not be if cause found has been medical employee receiving relative attention to the medical of and/or where problems complained the termination was not necessitated of a on advice physician. Benefit Dec. Nos. 117 (Precedent and 5343 In (1971), (1952), (1949).) to the nature of the illness she attributed to the of the regard presence incident, involved in the final testified as follows: appellant ill? “Q. [2] Now, you mentioned that talking to this woman would make you “A. Yes. What was the nature of the illness?
“Q. She “A. I don’t That woman rubbed me the know. way. just wrong me. upset
“Have ever a certain bad come across you just get vibrations that I don’t what there was for no reason? know upset you about her. 68, 69, “She was a woman T am here ten about and she kept harping, ”
years.’ The decision board is record appeals certainly supported by in this case. could have and communicated with her Appellant spoken fellow workers and remained She chose to leave because she employed. believed that with her fellow workers would be talking associating detrimental to her health. If she could have shown that it would be ill, 2 Actually, although testified that appellant to the made her talking never did appellant talk to her. She testified that did apparently she not know what the woman said to her to I I incident. “A. have no idea because precipitate just [j/c] I have ignored for four months. All of a sudden comes completely. ignored she over, starts and I her.” mumbling, just kept ignoring *8 health, have been cause for detrimental to her voluntarily good However, that it would have been she did not show leaving employment. cause. to her health and therefore did not show detrimental I the decision. would affirm