Barnum v. Williams, 5163
| Decision Date | 10 January 1968 |
| Docket Number | No. 5163,5163 |
| Citation | 436 P.2d 219,84 Nev. 37 |
| Parties | Bruce BARNUM, Executive Director of the Nevada Employment Security Department, Appellant, v. Ivan V. WILLIAMS, Respondent. |
| Court | Nevada Supreme Court |
Harvey Dickerson, Atty. Gen., Carson City, Lorin D. Parraguirre, Special Deputy Atty. Gen., Reno, for appellant.
Robert L Reid, Las Vegas, for respondent.
This appeal is from an order of the district court reversing an order of the board of rreview of the Nevada Employment Security Department denying unemployment benefits to respondent, Ivan V. Williams. A second question involves the propriety of an award of attorney's fees to respondent by the district court.
We conclude the trial court's orders to be in error, reverse them and reinstate the order of the board of review.
The record in this case indicates that Williams was employed as a truck driver for Adelson, Inc., which did business under the name of Food Fair Markets. He was originally hired in 1955 and worked until November 19, 1961. He was rehired in 1962 and quit in March 1963. His last period of employment with that company began in November 1964, which continued until he was suspended and later discharged on June 21, 1965. While driving from Los Angeles to Las Vegas with a truckload of merchandise, he collided with the rear end of a car going in the same direction of travel as his own. One person died as a result of that accident and three others were injured to an unknown extent. So far as the record shows, no fault has yet been established for that accident.
Following the accident, Williams' employed discovered the absence of the chart in the truck's tachograph, a device which maintains a continuous log of the truck's activity, including its speed at all times. Company policy required that the tachograph be operated on all trips of its trucks. Williams admitted knowledge of this policy but stated that he had inadvertently forgotten to place the graph in the truck on that particular trip. He was suspended from his job and shortly thereafter discharged.
Williams' first claim for unemployment benefits simply stated that he had been discharged by his employer because of The employer opposed the claim and stated in its letter of objection that Williams was discharged because he 'failed to have a tachograph chart in his equipment while operating it.' Neither the employee nor the employer referred to the accident in the initial claim or objection. The department thereupon made an award of unemployment benefits, concluding that Williams was discharged but not for misconduct under NRS 612.385. The employer upon being advised of that award filed an appeal which for the first time asserted the fact Williams had been involved in an accident. The department then sought rebuttal from Williams before proceeding with the appeal. Williams' reply indicated that
The appeals referee, pursuant to NRS 612.500(2), conducted an extensive hearing, both in Las Vegas and in Los Angeles. Williams was present and participated in both hearings. The referee reversed the award of benefits by the department and disqualified Williams from receiving further compensation for 16 weeks on the ground he was discharged for misconduct in his work. The decision of the appeals referee was affirmed in all respects by the board of review.
Thereafter, Williams sought review of the administrative decision in the district court pursuant to NRS 612.530. The district court found that the Employment Security Department acted capriciously and in excess of its jurisdiction by improperly considering the issue of misconduct on appeal and by basing its denial of unemployment benefits upon conclusions of fact and law not supported by the evidence. Due to the above-mentioned reasons the court reversed the order denying unemployment benefits to Williams and reinstated the original award. In addition, it granted attorney's fees to respondent in the amount of $500.
This appeal presents the following issues:
(1) Was the issue of misconduct properly before the appeals referee?
(2) Was the appeals referee correct in reviewing all of the evidence?
(3) Was the district court correct in concluding that the findings of the appeals referee were not supported by the evidence?
(4) Was the award of attorney's fees proper?
In deciding that the issue of misconduct was not properly before the appeals referee, the district court noted that there had been no specific allegation of misconduct and also that both the employee and the employer cited the same reason for the discharge of respondent. We do not agree that the original claim for benefits and the notice of protest so limit the scope of the appeal. We feel that the original claim for benefits, notice to employer, and protest of employer amount to no more than the barest notice to each of the parties of the fact that the claim has been made and protested, and that the procedural machinery of the act has been set into motion. The procedure for filing claims and protests is very informal and quite summary in nature. It is not required to be done under oath and certainly cannot be thought of as a fact-finding hearing. Indeed, the first real opportunity to fully develop the facts surrounding the claim and the protest comes at the hearing on appeal. We do not feel that the bare and minimum statement of...
To continue reading
Request your trial
-
Vester v. Board of Review of Oklahoma Employment Sec. Com'n
... ... 445, 524 P.2d 1108 (1974); Bristol v. Hanlon, 210 Neb. 37, 312 N.W.2d 694 (1981); Barnum v. Williams, 84 Nev. 37, 436 P.2d 219 (1968); In re Miller, 122 N.H. 993, 453 A.2d 1269 (1982); ... ...
-
Meinhold v. Clark County School Dist. Bd. of School Trustees of Clark County School Dist.
...of trustees, is challenged by certiorari, the function of this court is indentical to that of the district court. Cf. Barnum v. Williams, 84 Nev. 37, 436 P.2d 219 (1968); Nevada State Bd. Chiropractic Exam'rs. v. Babtkis, 83 Nev. 385, 432 P.2d 498 (1967); Miller v. Munger, 88 Nev. 405, 498 ......
-
Clark County Sch. Dist. v. Bundley
..."an element of wrongfulness" (internal quotations omitted)). 11. Kolnik, 112 Nev. at 15, 908 P.2d at 729 (quoting Barnum v. Williams, 84 Nev. 37, 41, 436 P.2d 219, 222 (1968)); see also Holmes, 112 Nev. at 282, 914 P.2d at 616 (recognizing that the repetition of acts may show willfulness) (......
-
State Dept. of Commerce, Real Estate Div. v. Soeller
...Div., 94 Nev. 123, 575 P.2d 1334 (1978); Holland Rlty. v. Nev. Real Est. Comm'n, 84 Nev. 91, 436 P.2d 422 (1968); Barnum v. Williams, 84 Nev. 37, 436 P.2d 219 (1968); Randono v. Nev. Real Estate Comm'n, 79 Nev. 132, 379 P.2d 537 (1963). The Commission's action is not an abuse of discretion ......