Rabago v. Unemployment Ins. Appeals Bd.

• Decision Date: 23 August 1978
• Citation: 148 Cal.Rptr. 499,84 Cal.App.3d 200
• Court: California Court of Appeals Court of Appeals
• Parties: Genaro RABAGO, Plaintiff and Appellant, v. UNEMPLOYMENT INSURANCE APPEALS BOARD, Defendant and Respondent; ELTRA CORPORATION, Real Party in Interest and Respondent. Civ. 3524.

Page 499

148 Cal.Rptr. 499

84 Cal.App.3d 200

Genaro RABAGO, Plaintiff and Appellant, v. UNEMPLOYMENT INSURANCE APPEALS BOARD, Defendant and Respondent ELTRA CORPORATION, Real Party in Interest and Respondent.

Civ. 3524.

Court of Appeal, Fifth District, California.

Aug. 23, 1978.

As Modified on Denial of Rehearing Sept. 20, 1978.

Gary S. deMalignon, Visalia, Robert T. Olmos, Los Angeles, for plaintiff and appellant.

Evelle J. Younger, Atty. Gen., John J. Klee, Jr., Asst. Atty. Gen., Thomas E. Warriner and Jan K. Damesyn, Deputy Attys. Gen., Sacramento, for defendant and respondent.

No appearance for real party in interest and respondent.

OPINION

GEO. A. BROWN, Presiding Justice.

Appellant, Genaro Rabago, sought a writ of administrative mandamus (Code Civ.Proc., § 1094.5) directing the State Unemployment Insurance Appeals Board (hereinafter Board) to set aside its decision denying him unemployment benefits. His claim had been denied by the Employment Development Department, the administrative law judge (ALJ) and the Board. After a trial on December 21, 1976, the court below entered findings of fact and conclusions of law and a judgment denying the writ. Appellant contends that as a matter of law he was not the moving party in the termination of his employment and therefore must be deemed to have left his employment involuntarily and, if not, that he left his work voluntarily with good cause within the meaning of Unemployment Insurance Code section 1256. ¹ , ²

FACTS ³

Appellant was employed by real party in interest, Prestolite Battery Division of Eltra Corporation (Prestolite), as a production worker in its battery manufacturing plant at Visalia for approximately two years between October 23, 1973, and November 19, 1975. On November 5, 1975, petitioner gave two weeks' notice of intention to quit, informing the plant personnel manager and signing a "Notice of Payroll Change" to this effect. In a space in the form for "reason," petitioner wrote, "other job." He told the company personnel manager that he had another job lined up with his father. On the following Monday, five days later, petitioner went back to the personnel manager and asked to withdraw the notice but was told that this would not be allowed. His employment terminated November 19, 1975.

On November 20, 1975, petitioner filed a claim for unemployment insurance benefits. In the claim form he gave the following explanation why he was no longer working for Prestolite:

"The lead was making it a hazard to my health. I decided to give a two-week notice and go to a job I had in mind. I then decided I had better stay at Prestolite until I was sure of myself on another job. Prestolite told me that I must quit since I gave my two-week notice, refusing me to withdraw it."

In another form that petitioner filled out in making his claim he gave a longer explanation, part of which stated:

"The lead was making it a hazard to my health. I was constantly with headaches and stomach pains, and after running tests with my doctor, I was advised that the problem was due to the lead at the plant. He (illegible) advised that I find another job for the (illegible) of my health." ⁴

The testimony before the ALJ confirmed that workers in the plant were exposed to some risk of lead poisoning. The employer periodically tested workers for excessive lead content in their blood. There was no evidence that appellant failed any of these tests. In October 1974 appellant was referred by the personnel manager to the company doctor because of symptoms which included stomach pains and nervousness, a "little bit of vomiting," dizziness, headaches and lack of appetite. The doctor gave him some "medication for nervousness," which "helped a little." The company doctor did not testify. Appellant testified the company doctor stated that he wouldn't verify that the problem was caused by lead poisoning "but since I was working there, that was a possibility." Appellant complained of the same symptoms again to the personnel manager several months later but was told to see his own doctor "and if he (the doctor) found this was caused from lead they (Prestolite) would be happy to pay for it." Consequently petitioner consulted Dr. Paul R. Henry, who examined him "for gastro-intestinal symptoms" on August 7 and September 3, 5 and 9, 1975. Dr. Henry made tests to determine the cause of the symptoms but it is not indicated what conclusions he reached, if any. Dr. Henry was not called as a witness. Appellant testified he continued to suffer the symptoms which he felt were caused by lead poisoning up to the time he gave the notice that he intended to quit.

Prestolite's personnel manager testified that there were two reasons for not allowing withdrawal of the notice to quit:

"(1) We didn't want to establish a precedent where other people would give notice and then change their mind. The normal procedure when someone gives notice to quit, their job is posted for bid, and if they change their mind, you have to rescind all of this, and (2) there's so much confusion, because in order to get prorated vacation pay for the year of the quit, they have to give two weeks' notice."

The court made findings of fact to the effect that appellant was the moving party in terminating the employment relationship; that neither of the physicians appellant consulted advised him to quit work for medical reasons; that the presence of lead at Prestolite's plant was not established as the cause of appellant's symptoms; and that appellant "quit his employment partially due to concern about potential lead poisoning and partially because he believed he had other work available to him." The court concluded that appellant quit his employment at Prestolite voluntarily without good cause. (See § 1256, fn. 2, Ante.)

SCOPE OF REVIEW

In reviewing the Board's determination the trial court is required to weigh the administrative evidence and to exercise an independent judgment thereon. (Thomas v. California Emp. Stab. Com. (1952) 39 Cal.2d 501, 504, 247 P.2d 561; King v. California Unemployment Ins. Appeals Bd. (1972) 25 Cal.App.3d 199, 203, 101 Cal.Rptr. 660.) On appeal from the superior court's judgment appellate review is restricted to determining whether the judgment is supported by substantial evidence. (Yakov v. Board of Medical Examiners (1968) 68 Cal.2d 67, 72, 64 Cal.Rptr. 785, 435 P.2d 553; Prescod v. Unemployment Ins. Appeals Bd. (1976) 57 Cal.App.3d 29, 38, 127 Cal.Rptr. 540.) The scope of our review therefore is virtually identical with that in court-tried litigation. (Lacy v. California Unemployment Ins. Appeals Bd. (1971) 17 Cal.App.3d 1128, 1134-1135, 95 Cal.Rptr. 566.)

DID APPELLANT LEAVE HIS EMPLOYMENT VOLUNTARILY?

Appellant attempted to withdraw his notice to quit five days after it had been given, which the trial court found was "prompted by unavailability of future employment he had previously thought available." Appellant argues that the employer's refusal to accept his withdrawal of his notice to quit made the employer the moving party and rendered the termination involuntary. In essence his position is that a notice to quit given by an employee is not final and is subject to withdrawal unless the employer can show good cause for refusing to accept the rescission of the notice, thus casting the burden upon the employer to justify his refusal under penalty of being held to have terminated the employee's employment.

While there are no California cases on the point, previous decisions of the Board ⁵ point the way toward the correct principle. Those decisions stand for the proposition that a resignation severs the employment relationship on the date set by the resignation and that an attempt to withdraw it prior to that date is a request for reemployment which the employer may refuse. (Matter of Mastrosimone, Benefit Decision 5658 (1950); Matter of De Luca, Benefit Decision 5752 (1951); Matter of Ulibarri, Benefit Decision 6064 (1953).)

Appellant concedes that if in reliance upon the notice to quit the employer had changed its position by employing someone else or had taken other action to its detriment the employee would be estopped from being permitted to withdraw his notice to terminate.

It is also noted that appellant stated in a form he filed with his claim for unemployment benefits that he told the employer he wanted to "withdraw (the notice to quit) until I found the job I really wanted." In this regard the interest of the employer cannot be ignored. An employer has a vital interest in maintaining a stable, satisfied work force. Obviously, a discontented employee who intends to continue in the employment as a stopgap only until he can find other employment is less likely to be as good an employee as one who has no present intention of changing jobs.

In the interest of definiteness and fairness to the employer, we do not think the employer should be burdened with proving facts necessary to establish reliance and prejudice in order to justify a refusal to permit withdrawal of a notice to quit. Degrees of reliance and prejudice can vary. Requiring such proof would introduce an undesirable degree of uncertainty into the employment relationship. The employee should assume the responsibility of making sure he knows what he is doing before he decides to take such drastic action as giving the employer a notice to quit. The burden should rest with the employee who initiated the action by giving the initial notice and in every real and practical sense is the moving party, try as he may to reverse the roles. It seems to us that it would be a distortion of reason and common sense to hold under these circumstances that the employer is the moving party and that the severance of the employment was involuntary. Moreover, we find nothing in the Unemployment Insurance Act requiring such an untoward result. We therefore conclude that the appellant was the moving party when he initiated the action by giving...