Billings v. Director Employment Sec. Dept.

• Decision Date: 03 December 2003
• Docket Number: No. E 02-239.,E 02-239.
• Citation: 84 Ark. App. 79,133 S.W.3d 399
• Parties: Gloria BILLINGS, et al. v. DIRECTOR, EMPLOYMENT SECURITY DEPARTMENT; and Southwestern Bell.
• Court: Arkansas Court of Appeals

133 S.W.3d 399

Gloria BILLINGS, et al. v. DIRECTOR, EMPLOYMENT SECURITY DEPARTMENT; and Southwestern Bell.

No. E 02-239.

Court of Appeals of Arkansas, Divisions II, III, and IV.

December 3, 2003.

James Edward Nickels, North Little Rock, for appellants.

Allan Pruitt and Phyllis Edwards, Little Rock, for appellee Director, Arkansas Employment Security Department.

Cynthia A. Barton and H. Edward Skinner; and Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C., by: Hermann Ivester, Little Rock, for appellee Southwestern Bell Telephone, L.P.

ROBERT J. GLADWIN, Judge.

Following its determination that a force reduction was necessary, Southwestern Bell began its internal informal surplus proceedings in which employees with the most seniority were offered the opportunity to sign up for a voluntary severance package (hereinafter, "VSP"). Appellants accepted the VSP and took a sum of money approximately equal to one year's salary. They then filed claims for unemployment benefits. The Appeal Tribunal affirmed the Department's determination that appellants were eligible for benefits. The Board of Review, however, reversed that decision because it found that appellants had voluntarily left their work without good cause connected with the work. On appeal to this court, appellants argue that substantial evidence does not support the Board's decision. We disagree and affirm.

According to the area manager Rick Barteau, the VSP was offered based on seniority, with the employee with the highest seniority receiving the first right of refusal. The offer would then be extended to the employee with the next highest seniority and would continue down the list until the surplus was removed. Appellants' testimony collectively indicated that appellee had suggested that if there were not enough volunteers for the VSP, the employees with the least seniority would be laid off in order to eliminate the surplus. Both the area manager and appellants testified that appellants were not in any danger of losing their jobs, given their seniority.

In reversing the award of benefits, the Board noted that appellants had to first voluntarily apply for the VSP and then accept it once an offer was made by appellee. The Board found that appellants' jobs were clearly suitable for them because the work would have been a continuation of the jobs they were already performing. The Board also found that appellants were not in imminent danger of losing their jobs. Because appellants had control over whether their employment continued, the Board concluded that they were not entitled to unemployment benefits.

The findings of the Board of Review are conclusive if they are supported by substantial evidence. Walls v. Director, 74 Ark.App. 424, 49 S.W.3d 670 (2001). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. We review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Board's findings. Lovelace v. Director, 78 Ark.App. 127, 79 S.W.3d 400 (2002). Even when there is evidence upon which the Board might have reached a different decision, the scope of judicial review is limited to a determination of whether the Board could reasonably reach its decision upon the evidence before it. Id.

An individual shall be disqualified for benefits if he, voluntarily and without good cause connected with the work, left his last work. See Ark.Code Ann. § 11-10-513(a)(1) (Repl.2002). In Dingmann v. Travelers Country Club, 420 N.W.2d 231, 233 (Minn.Ct.App.1988), the Minnesota Court of Appeals interpreted the term "voluntarily quit," and held that the test is whether the individual has exercised his own free will or choice in the separation. Weaver v. Director, 82 Ark. App. 616, 120 S.W.3d 158 (2003). "Voluntarily leaving work" has been said to be the opposite of discharge, dismissal, or lay-off by the employer severing relations with the employee. Harris v. Daniels, 263 Ark. 897, 567 S.W.2d 954 (1978). The basic design of the Employment Security Act is to protect an employee from his becoming unemployed through no fault of his own. Id. Unemployment benefits are not for those individuals who are voluntarily unemployed. Wacaster v. Daniels, 270 Ark. 190, 603 S.W.2d 907 (Ark.App.1980).

Appellants seemingly concede that there is a split of authority in other jurisdictions on whether acceptance of an incentive program constitutes good cause attributable to employment such that benefits should be awarded. Although appellants assert that the Board failed to consider a line of cases that support their position, there is no evidence to support such assertion. The Board was simply not persuaded.

Appellants rely on one Arkansas case in particular, Jackson v. Daniels, 267 Ark. 685, 590 S.W.2d 63 (Ark.App.1979), and contend that it is similar to the case at bar. In that case, claimant was a manager of a restaurant that was sold to a new owner. Thinking that lay offs were imminent, claimant expressed a preference that she be laid off before the two employees she had recently hired. In awarding benefits to claimant, this court found a distinction between simply expressing a preference to be laid off in the event of a lay off and a direct request to be laid off work. Appellants argue that, similarly, they requested to participate in a reduction in force that was both negotiated and accepted by appellee.

In Terry v. Director of Labor, 3 Ark. App. 197, 623 S.W.2d 857 (1981), the employer initiated a reduction in the work force and claimant was given the option of being laid off or taking one of two available jobs. Claimant chose to be laid off work and was disqualified from receiving benefits. In reversing the Board's decision, this court believed the Jackson case to be controlling and concluded that the fact that the claimant preferred to be laid off did not alter the fact that his employment ended by reason of a work reduction instituted by the employer and not for personal reasons. The decision in Terry was later overruled by this court in Reynolds Metals Co. v. Couch, 8 Ark.App. 37, 648 S.W.2d 497 (1983), but as appellants point out, it did not expressly overrule Jackson.

In Reynolds, management announced a force reduction and offered senior employees the choice of "bumping" into a lower job classification or taking a lay off. Rather than exercising their "bumping rights," claimants chose the lay off and were subsequently awarded benefits. Realizing that there was no evidence as to the suitability of the work offered, this court reversed its position in Terry and held that good cause to refuse work that is otherwise suitable does not exist merely because the employee's acceptance of the offered position will result in the discharge of a fellow employee with less seniority. The case was remanded for the Board to consider the suitability of the offered work.

"Good cause" has been defined as a cause that would reasonably impel the average able-bodied, qualified worker to give up his or her employment and is ordinarily a question of fact for the Board of Review to determine. Thornton v. Director, 80 Ark.App. 99, 91 S.W.3d 523 (2002). It is dependent not only on the reaction of the average employee, but also on the good faith of the employee involved, which includes the presence of a genuine desire to work and to be self-supporting. Gunter v. Director, 82 Ark.App. 346, 107 S.W.3d 902 (2003). Although appellants contend that volunteering for the VSP in order to save the job of a fellow employee with less seniority constitutes good cause for leaving their work, this contention flies in the face of this court's holding in Reynolds, supra. As pointed out by the Board, appellants availed themselves of the VSP even though they had the option of continuing in positions that were clearly suitable for them regardless of the fact that appellee initiated the process to reduce its workforce.

The dissenting judges contend that we should consider the 2003 amendment to Ark.Code Ann. § 11-10-513, enacted after the Board's decision, as indicative of the legislature's intent. Pursuant to the amendment, "[n]o individual shall be disqualified under this section if he or she left his or her last work because he or she voluntarily participated in a permanent reduction in the employer's work force after the employer announced a pending reduction in its work force and asked for volunteers." Ark.Code Ann. § 11-10-513(c)(1) (Supp.2003). The dissenting judges essentially would have this amendment apply retroactively.

It is presumed that all legislation is intended to act prospectively, and statutes are to be construed as having only a prospective operation unless the purpose and intention of the legislature to give them a retroactive effect is expressly declared or necessarily implied from the language used. See City of Dover v. Barton, 337 Ark. 186, 987 S.W.2d 705 (1999); James v. James, 52 Ark.App. 29, 914 S.W.2d 773 (1996). Any doubt on the matter is resolved against retroactive application. Arkansas Rural Med. Prac. Student Loan & Scholarship Bd. v. Luter, 292 Ark. 259, 729 S.W.2d 402 (1987). This rule, however, does not ordinarily apply to procedural or remedial legislation. Bean v. Office of Child Support Enfcm't, 340 Ark. 286, 9 S.W.3d 520 (2000). Although the Employment Security Act is remedial in nature and must be liberally construed in order to accomplish its beneficent purpose, Graham v. Daniels, 269 Ark. 774, 601 S.W.2d 229 (Ark.App.1980), retroactive application is appropriate for remedial statutes that "do not disturb vested rights, or create new obligations, but only supply a new or more appropriate remedy to enforce an existing right or obligation." Aka v. Jefferson Hosp. Ass'n, Inc., 344 Ark. 627, 42 S.W.3d 508 (2001). Statutes which are remedial or procedural generally supply new, different, or more appropriate remedies which relate to existing rights, and do not...