Phelps Dodge Corp. v. State, Dept. of Economic Sec.
| Decision Date | 04 April 1980 |
| Docket Number | CA-CIV,No. 2,2 |
| Citation | 125 Ariz. 342,609 P.2d 612 |
| Parties | PHELPS DODGE CORPORATION, a New York Corporation, Plaintiff/Appellee, v. STATE of Arizona, DEPARTMENT OF ECONOMIC SECURITY; John J. Zenonian, an Individual, Defendants/Appellants. 3293. |
| Court | Arizona Court of Appeals |
Evans, Kitchel & Jenckes, P. C. by Nathan R. Niemuth, Phoenix, for plaintiff/appellee.
Robert K. Corbin, Atty. Gen. by Alex G. Duncan, Tucson, for defendants/appellants.
SUBSTITUTED OPINION ON REHEARING
The Department of Economic Security seeks review of a superior court judgment which reversed a final decision of DES that John J. Zenonian was eligible for unemployment compensation benefits and that the experience rating account of Phelps Dodge, his last employer, should be charged. In our original opinion, we reversed the judgment with directions to affirm the DES decision. On motion for rehearing, however, we have concluded that our original decision was erroneous and we affirm. This opinion is therefore substituted for the original one.
Mr. Zenonian filed a claim for unemployment compensation benefits effective August 21, 1977, stating he had last worked on August 19 for Phelps Dodge in Ajo, Arizona, and was laid off. Phelps Dodge filed a timely protest to payment of benefits and chargeability thereof. On November 9, 1977, a deputy determined that Zenonian left work voluntarily without good cause in connection with the work, assessed the statutory disqualification and non-charged the employer's account. The claimant appealed. A hearing was held in Grants Pass, Oregon, at which the claimant testified. An appeal tribunal hearing was held in Tucson at which an employer-witness testified. The appeal tribunal set aside the deputy's determination in toto and remanded the issue of the claimant's availability for work to the local office for adjudication.
Phelps Dodge sought judicial review in superior court of the agency decision, cross-motions for summary judgment were filed, and the superior court found that Phelps Dodge was entitled to judgment in its favor as a matter of law. The superior court, in reversing, concluded that DES erroneously determined that Zenonian's separation from employment with Phelps Dodge was not caused by his voluntary retirement and that he had voluntarily left his employment without good cause, thereby being disqualified from receiving unemployment compensation benefits in accordance with A.R.S. Sec. 23-775.
The appeal tribunal made the following findings of fact: The claimant, age 51, was employed by Phelps Dodge from March 10, 1947, until his layoff on August 19, 1977. His employer ceased all operations on August 21, and the shutdown was expected to last through the month of September. The claimant filed for unemployment insurance benefits on August 24 and on August 29, signed an application for a special early retirement program offered by the employer, a program available only to those workers on layoff status. The effective date of this retirement was August 21, 1977. Sixty-four of the 130 eligible workers chose to accept the retirement and accompanying benefits. The employer resumed operations on October 2, 1977, and recalled all employees who were laid off except those who had filed an application for pension. Employees accepting the pension might reapply for employment and, if an opening were available, be reemployed.
The only issue before the tribunal was whether Mr. Zenonian's separation from employment was a layoff or a voluntary leaving. Benefit Policy Rule R6-3-50135(A) provides in part:
"1. A worker's separation from employment is either a quit or a discharge.
2. The claimant quits when he acts to end the employment and intends this result.
3. The separation is a discharge when it results from the employer's intent and action. This includes layoff for lack of work, and requests by the employer for worker's resignation."
Rule R6-3-50440 provides, in pertinent part:
"B. Temporary shutdowns
1. The employer-employee relationship continues when a worker is temporarily laid off because his employer suspends all or a part of his operation for a definite period of time provided:
a. The shutdown is of short duration; generally a four-week period will be considered a maximum; and
b. The worker is given definite assurance of reemployment at his regular job or other suitable work when the employer resumes his operations; and
c. The employee has worked for the...
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