Rex E. Muhlenkamp, Petitioner,
v.
The Industrial Claim
Appeals Office of the State of
Colorado,
and Nor Colo Distributing Company,
Respondents.
No. 89CA1491.
802 P.2d
1127
Colorado
Court of Appeals,
Division III.
June 7, 1990.
Rehearing
Denied July 5, 1990.
Certiorari Denied Dec. 17,
1990.
Colorado Rural Legal Services, Inc., Ann M. la Plante, Greeley,
for petitioner.
Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty.
Gen., Richard H. Forman, Sol. Gen., Paul H. Chan, Asst. Atty. Gen.,
Denver, for respondents.
JONES, Judge.
Rex E. Muhlenkamp, claimant, seeks review of a final order of the
Industrial Claim Appeals Office (Panel) which disqualified him from
the receipt of unemployment compensation benefits. We affirm.
After a hearing, the hearing officer found that claimant, when
hired, was informed that his job duties entailed being both a
warehouse worker and a relief driver and that claimant knew for at
least a year prior to being terminated that his compensation for the
two components of his job was calculated differently. As a warehouse
worker, claimant earned a base salary of $390 per week, plus time
and one-half for hours worked over 40 hours. As a relief driver,
claimant earned his base salary plus three cents per case delivered,
with no provision for overtime. Regular route salesmen earned a
straight commission of 25 cents per case. Furthermore, while the
frequency of relief driving because of illness or vacation of
regular route salesmen increased, the calculation of compensation
for relief drivers did not vary. Thus, from the time he was hired,
claimant was aware that his normal duties as a relief driver would
tend to reduce his income.
The hearing officer further found that, at the times pertinent
here, claimant was assigned to work as a relief driver, that he
refused to complete the assignment unless he was paid more, and that
he was discharged for his refusal to complete his route assignment.
He finally found claimant was at fault for his separation and
disqualified him from the receipt of benefits pursuant to Sec.
8-73-108(5)(e)(XX), C.R.S. (1986 Repl.Vol. 3B) (failure to meet
established job performance or other defined standards). The Panel
affirmed, concluding that claimant "was discharged because he
refused to perform his normal duties as a relief driver." (emphasis
added)
Claimant contends that the findings of the hearing officer do not
support the application of Sec. 8-73-108(5)(e)(XX). We disagree.
In determining whether findings of fact support the application
of a section, we are to examine the findings and the record as a
whole to determine whether the decision is justified. See
Southwest Forest Industries, Inc. v. Industrial Commission, 719
P.2d 1098 (Colo.App.1986). The fact-finder is not held to a
crystalline standard when it articulates its findings. If the
decision is justified, it may not be set aside on the technicality
of unclarity of expression. See In re Claim of Allmendinger v.
Industrial Commission, 40 Colo.App. 210, 571 P.2d 741 (1977).
From our review of the record and the findings, we are satisfied
that the findings demonstrate that the relevant statutory factors
for the application of Sec. 8-73-108(5)(e)(XX) were considered and
that the hearing officer found, on substantial evidence, that
claimant was discharged for failure to meet established job
performance standards. We therefore find no merit to claimant's
contention. See Southwest Forest Industries, Inc. v. Industrial
Commission, supra.
Claimant also contends that the hearing officer erred as a matter
of law in not awarding him benefits pursuant to Sec. 8-73-108(4)(d),
C.R.S. (1986 Repl.Vol. 3B) (substantial unfavorable change in
working conditions). Claimant asserts, relying on Wargon v.
Industrial Claim Appeals Office, 787 P.2d 668 (Colo.App.1990),
that when the frequency with which he was called upon to be a relief
driver increased, the change in compensation during that time from
that of a warehouse worker constituted a substantial change in his
working conditions which is less favorable to him. Again, we
disagree.
In Wargon, this court held that "a change in the method of
compensation from a salary plus bonus to a commission plus bonus
constitutes a substantial change in ... working conditions as a
matter of law." In so holding, the court noted that claimant there,
who had left a job paying commissions to accept another job because
she wanted the stability and security of a monthly salary, was given
two days notice that her compensation structure would change from
salary plus bonuses to strict commission plus bonuses. She resigned
citing the change in compensation.
We hold that the Wargon rule does not apply in this case.
Here, claimant knew from the outset that his normal duties as to
each of the two components of his job would be compensated on a
different basis. Thus, claimant experienced no "change" in the
method of compensation as the salesperson did in Wargon, and
the objective standard test of Wargon has not been met by
claimant. Therefore, Sec. 8-73-108(4)(d), C.R.S. (1986 Repl.Vol. 3B)
cannot apply here.
Since the findings of evidentiary fact are not contrary to the
weight of the evidence, and support the conclusion to apply Sec.
8-73-108(5)(e)(XX), we will not disturb that decision on review. See
Federico v. Brannan Sand & Gravel Co., 788 P.2d 1268
(Colo.1990); Mountain States Telephone & Telegraph Co. v.
Industrial Commission, 697 P.2d 418 (Colo.App.1985).
Order affirmed.
Sternberg and Ney, JJ., concur.
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