ACF Industries, Inc. v. Industrial Commission

• Decision Date: 04 February 1958
• Docket Number: No. 29965,29965
• Citation: 309 S.W.2d 676
• Parties: ACF INDUSTRIES, Incorporated (Plaintiff), Appellant, v. The INDUSTRIAL COMMISSION OF MISSOURI, Donald Brown, and Division of Employment Security of Missouri (Defendants), Respondents.
• Court: Missouri Court of Appeals

Page 676

309 S.W.2d 676

ACF INDUSTRIES, Incorporated (Plaintiff), Appellant, v. The INDUSTRIAL COMMISSION OF MISSOURI, Donald Brown, and Division of Employment Security of Missouri

(Defendants), Respondents.

No. 29965.

St. Louis Court of Appeals, Missouri.

Feb. 4, 1958.

Motion for Rehearing or to Transfer to Supreme Court Denied

Feb. 28, 1958.

Arnot L. Sheppard, Herbert E. Bryant, Wm. R. Gentry, St. Louis, for appellant.

George Schwartz, Jefferson City, for respondent Division of Employment Security.

Lloyd G. Poole, Jefferson City, for respondent Industrial Commission of Missouri.

ANDERSON, Judge.

This is an action for judicial review of a decision of the Industrial Commission of Missouri as provided for in Section 288.210. (All statutory references are to RSMo 1957 Supplement, V.A.M.S.) Claimant, Donald Brown, sought to recover unemployment compensation for five weeks immediately subsequent to January 7, 1957. The Commission's Deputy found that claimant was eligible for unemployment benefits in accordance with his claim. The appeals tribunal for the Division of Employment Security affirmed. Appellant, ACF Industries, Incorporated, requested a review of said decision by the Industrial Commission. The latter denied said application, with the result that, under Section 288.200, the decision of the appeals tribunal is to be regarded as the decision of the Commission. Appellant then filed its petition for review in the Circuit Court. The Circuit Court affirmed.

Respondent Brown entered appellant's employment as an electrician at its plant at 2800 DeKalb Street in June, 1956. He was laid off on November 2, 1956.

During the time that Brown was employed by appellant the latter had an agreement with the International Brotherhood of Electrical Workers, Local No. 1. This contract was entered into on February 20, 1956, and related to its DeKalb Street plant. The agreement provided (Article II, Section 2):

'The Company recognizes the Union as the sole collective bargaining agency for all the employees at the plant as defined in this agreement with respect to wages, hours of work and other conditions of employment.'

It was also provided (Article II, Section 3):

'All employees in the bargaining unit on the date of the execution of this Agreement shall, as a condition of employment, not later than thirty-one (31) days after the date hereof, acquire and maintain membership in the Union in good standing for the duration of this Agreement. All new employees shall, as a condition of employment, become members of the Union not later than thirty-one (31) days following the date of their employment or following the date of execution of this Agreement, whichever is the later, and thereafter shall maintain membership in the Union in good standing for the duration of this Agreement.'

At the time Brown was laid off he did not belong to the Union, but had paid his initiation fees.

Article IX, Section 3, of the Union contract provides:

'Cancellation of Seniority. The employee's seniority shall cease if:

* * *

* * *

'(4) If he does not report within five (5) work days after being called to work, unless he furnishes a reasonable excuse for failure to report. The call shall be sufficient, if it is made by mail, addressed to employee's last place of residence as registered with the company. Local committee to be furnished list of men to be recalled to service.

'When an employee whose seniority has been broken by any of the causes mentioned in the aforegoing paragraph of this Article, is again hired by the Company, he begins as a new employee.'

It is provided in Article XXII, Section 1:

'Change of Address. All changes of address or telephone numbers must be reported to the Personnel Department at once.'

Section 3, of Article XXII, reads as follows:

'Computation of time. For the purpose of computing the time within which any steps or action should be taken under this Agreement after notice of request by one party (or an employee) of another party (or an employee), the date of such notice or request is mailed shall control and the day following the mailing date shall be counted as the first day. In the event the last day any steps or action should be taken under this Agreement shall fall on Saturday or Sunday or on one of the holidays named in paragraph (a), Section 1 of Article XVIII, then the time within which such step or action must be taken shall be extended to include the next regular business day. The United States Post Office postmark shall be conclusive evidence of the date of mailing. When provision is made herein for the giving of written notice or the making of written request of a specified number of days, the giving of such notice or the making of such request shall be timely if mailed and postmarked on the last day.'

On January 4, 1957, appellant sent Brown a letter addressed to him at 141 East Loretta, Lemay 23, Missouri. This letter read as follows:

'Please report for work at the employment office Monday, January 7, 1957, at 8:00 a. m.'

This letter was never returned to appellant by the postal authorities or anyone. On the same day the letter was mailed appellant dispatched a telegram by Western Union to Brown, also directed to 141 East Loretta, Lemay, Missouri. This telegram read as follows:

'Report for work at employment office Monday, January 7, 1957, at 8:00 a. m.'

The telegram was signed 'American Car and Foundry Company.' On the same day the telegram was sent to Brown, Western Union, in a telegram directed to appellant, reported its inability to deliver the telegram to Brown. Said telegram read:

'Your telegram January 4, Donald Brown, 141 East Loretta, Lemay 23, Missouri, is undelivered. Mr. Brown has not been home for over a week, unable to say when will be back. If there is any question please call GA 1-4321 Station 122. (Signed) Western Union Telegraph Company.'

At the time Brown was employed by the appellant he lived at 141 East Loretta, Lemay 23 (St. Louis), Missouri. He rented a room at this address. He was unmarried.

On November 12, 1956, Brown secured employment at the Mercury plant of the Ford Motor Company near Robertson, Missouri. He worked at this job until January 5, 1957, when he was laid off. During the period of his employment at the Mercury plant he rented a room at a rooming house in Robertson. About once a week he would go to the Lemay address for his mail and for clothes, etc. On January 5, the day he was laid off at the Mercury plant, he changed his abode to 2218 South Broadway. He did not thereafter call at the Lemay address for his mail or belongings until January 14, 1957. Prior to January 14, 1957, he did not notify appellant of the change in his address.

Brown testified that he did not notify the Post Office of the change of his address from 141 East Loretta, Lemay 23, Missouri, to 2218 South Broadway, until about a week after he made the move to the latter address. When he filed his claim for unemployment compensation on January 8, 1957, he gave as his address 141 East Loretta, St. Louis 23, Missouri. He stated that the last time he spent the night at the Lemay address was sometime around the end of December, 1956.

On January 14, 1957, Brown went to the Lemay address for his mail. When he arrived there he found the letter of January 4, 1957. On the same day (January 14, 1957), according to his testimony, he went to appellant's plant and made inquiry about his employment status. He was informed that his name had been removed from the seniority list and his job filled.

Irving Margol, appellant's employment manager, testified that Brown's visit was on January 17, and that his name had been dropped from the company's rolls on January 14, 1957, for failure to answer the recall to work. He stated that: 'according to our Union contract, which provides that an employee has five days to answer a recall, and since the five days had elapsed and he did not report by the 14th, he was then dropped from our rolls.'

There is some question in the testimony about just what happened when Brown came to appellant's plant to discuss the matter of returning to work. Brown testified that he thought he talked to appellant's personnel representative Margol.

Mr. Margol stated that on January 17, 1957, Brown came into the office and that he talked to Brown personally. He testified:

'I told him if he could provide a statement of why he had failed to answer the recall due to illness or sufficient reason we would consider his case for reinstatement * * * he said he was out of town and let it go at that. * * * I told him if he could show me a reason for his being out of town due to an illness of...