Anamax Min. Co. v. Arizona Dept. of Economic Sec.

• Decision Date: 15 August 1985
• Docket Number: CA-UB,No. 1,1
• Citation: Anamax Min. Co. v. Arizona Dept. of Economic Sec., 711 P.2d 621, 147 Ariz. 482 (Ariz. App. 1985)
• Parties: ANAMAX MINING COMPANY, Appellant, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, an agency; Edward R. Nava, Appellees. 427.
• Court: Arizona Court of Appeals

Page 621

711 P.2d 621

147 Ariz. 482

ANAMAX MINING COMPANY, Appellant, v.ARIZONA DEPARTMENT OF ECONOMIC SECURITY, an agency; Edward R. Nava, Appellees.

No. 1 CA-UB 427.

Court of Appeals of Arizona Division 1, Department B.

Aug. 15, 1985.

O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears by Charles L. Fine, Phoenix, for appellant.

Dix, Rehling & Waterman by J. Stephen Dix, Arthur Gage, Tucson, for appellee Nava.

Robert K. Corbin, Atty. Gen. by Frank Sagarino, Asst. Atty. Gen., Phoenix, for appellee Arizona Dept. of Economic Sec.

OPINION

KLEINSCHMIDT, Judge.

Anamax Mining has appealed from a determination by the Unemployment Insurance Appeals Board of the Department of Economic Security(DES) that the company cannot be represented by a lay employee in matters before the board.Concomitantly, Anamax has appealed from the board's decision on the underlying merits of the employee, Nava's, claim, namely, that he was eligible for unemployment insurance benefits because he had been discharged without any misconduct on his part.We find against Anamax on both issues.

While employed for Anamax, Nava suffered a heart attack.He was placed on the company's non-industrial disability benefit plan.In January, 1983, while he was on disability status, Nava received a letter from the company's labor administrator, Ms. Linda Trice informing him that he had been laid off.Trice's letter advised Nava that a layoff physical had been scheduled and suggested that he contact Anamax in the event he could not keep the appointment.Shortly thereafter, Trice wrote another letter to Nava in which she informed him that he could continue in disability status as long as he was totally disabled.Nava was told that as soon as he was released to return to work by his physician he should contact the personnel office immediately in order to schedule a layoff physical.

On May 23, 1983, Nava hand-delivered to Anamax's personnel office a statement from his physician that as of June 1, 1983, he would be released to return to work.At the time he delivered the release to Anamax's personnel office, neither the company's employee nor Nava mentioned the need to schedule an appointment for a return-to-work physical.Nava filed for unemployment benefits on June 1, stating he had been "laid off after medical release."On June 10, however, the company fired Nava for what it termed was a failure to comply with a collective bargaining agreement requirement that employees were responsible for scheduling layoff physical exams.It is undisputed that Nava had never scheduled a layoff physical.

The DES rejected Nava's claim for unemployment benefits on the ground that he had failed to timely notify Anamax that he had been released by his physician to return to work.On Nava's subsequent appeal to the DES Appeals Tribunal, Anamax was represented by its labor relations administrator, Ms. Trice.The tribunal reversed the deputy's decision, holding that Nava had been discharged for reasons other than work-connected misconduct, and that Nava was entitled to unemployment compensation.At the next administrative stage, the appeals board denied Anamax's request for review of the tribunal's decision because Trice, a layperson, had filed the company's request.The board reasoned that Trice was neither an Arizona attorney nor supervised by one, and concluded that pursuant to Rule 27(a)(4), Rules of the Arizona Supreme Court, one of those conditions had to be met in order for her to participate in proceedings before the board.The board also affirmed the tribunal's decision on the merits of Nava's claim, deciding he was entitled to unemployment compensation.This appeal followed:

LAY REPRESENTATION

Anamax contends that a corporate employer has the right to be represented by an employee in all DES proceedings, regardless of whether the employee is an attorney or works under the supervision of an attorney.Citing various statutes, the company claims that the Arizona legislature has guaranteed corporate employers the right of self-representation through their employees in DES matters.One of the two statutes which bears on the question is A.R.S. § 23-683(B).It provides:

An individual claiming benefits or an employer in a proceeding before the department or a court may be represented by counsel or other duly authorized agent.No such counsel or agent for an individual shall either charge or receive for his services more than an amount approved by the department.

Another is A.R.S. § 23-674(B):

Notwithstanding § 32-261[statute specifying practice of law by active state bar members only], a party may be represented by a duly authorized agent who is not a member of the State Bar of Arizona.

Still another pertinent proviso is an administrative rule, Ariz.Admin.RulesandReg. R 6-3-1502(K):

An interested party may appear for himself in any proceeding before an Appeal Tribunal or the Appeals Board.Any partnership may be represented by any of its members or a duly authorized representative.Any corporation or other organization may be represented by an officer or an authorized representative.

(Emphasis added.)

Anamax says that a corporation can only act through its officers or employees.It argues that since A.R.S. § 23-674(B) provides that a party may be represented by a duly authorized agent who is not a member of the state bar, it need not be represented by such an agent and instead can be represented by an employee.Anamax seeks to avoid having to be represented by a "duly authorized agent" to avoid the operation of Rule 27(a)(4), Rules of the Arizona Supreme Court, which provided:

Notwithstanding the provisions of paragraph 3 of this Rule 27(a), any duly authorized agent may represent either an individual claiming benefits or an employer in any proceeding before or under the jurisdiction of the Unemployment Compensation Division of the Department of Economic...