Belle State Bank v. Industrial Commission Division of Emp. Sec.

• Decision Date: 31 January 1977
• Docket Number: Nos. 9762,9763,s. 9762
• Citation: 547 S.W.2d 841
• Parties: BELLE STATE BANK, a corporation, Plaintiff-Appellant, v. INDUSTRIAL COMMISSION of Missouri, DIVISION OF EMPLOYMENT SECURITY, and Wanda J. Tackett, Defendants-Respondents. BELLE STATE BANK, a corporation, Plaintiff-Appellant, v. INDUSTRIAL COMMISSION of Missouri, DIVISION OF EMPLOYMENT SECURITY, and Joanne Barbarick, Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 841

547 S.W.2d 841

BELLE STATE BANK, a corporation, Plaintiff-Appellant, v. INDUSTRIAL COMMISSION of Missouri, DIVISION OF EMPLOYMENT

SECURITY, and Wanda J. Tackett, Defendants-Respondents.

BELLE STATE BANK, a corporation, Plaintiff-Appellant, v. INDUSTRIAL COMMISSION of Missouri, DIVISION OF EMPLOYMENT

SECURITY, and Joanne Barbarick, Defendants-Respondents.

Nos. 9762, 9763.

Missouri Court of Appeals, Springfield District.

Jan. 31, 1977.

Motion for Rehearing or to Transfer Denied Feb. 17, 1977.

Application to Transfer Denied April 11, 1977.

Thomas A. Vetter, Jefferson City, for plaintiff-appellant.

Charles B. Fain, Jefferson City, for respondent Industrial Commission of Missouri.

Terry C. Allen, Jefferson City, for respondent Division of Employment Security.

Before STONE, P. J., and HOGAN and FLANIGAN, JJ.

STONE, Presiding Judge.

These appeals in the above-captioned consolidated cases involve and challenge the allowance to claimants, Mrs. Joanne Barbarick and Mrs. Wanda J. Tackett, of unemployment benefits under the Missouri Employment Security Law (the Law). Chapter 288. ¹ Both claimants were employed by the Belle State Bank (a "country bank" ²), Mrs. Barbarick as an assistant cashier and Mrs. Tackett as a bookkeeper, when the ownership of the bank changed hands on July 26, 1973. On August 16, 1973, shortly after a meeting of the new Board of Directors, vice-president Hunter informed claimants and other bank employees of certain changes, which the new management proposed to put into effect on a trial basis on September 1, 1973. In the meantime, Mrs. Barbarick voluntarily quit her job on the morning of August 17 and Mrs. Tackett followed suit on August 23.

On August 27, each filed a claim for benefits under the Law; and on September 13, a deputy of the Division of Employment Security (the Division) handed down a "determination" in each case finding that claimant was disqualified for the reason that (as summarized in each determination) the proposed changes were "not unreasonable and did not give the claimant good cause to quit." On claimants' separate appeals from the deputy's determinations, an appeals referee of the Division (the referee) conducted an informal consolidated hearing at which, with none of the parties represented by counsel, both claimants and Dean Hunter, the executive vice-president of employer Belle State Bank, testified at length and without limitation or restriction by evidentiary rules or otherwise. For that matter, the transcript is liberally laced not only with the garden varieties of testimonial statements commonly received in administrative hearings of this character but also with self-serving statements, conclusions and comments, some of which were in response to the referee's express invitation. In due time, the referee made written findings, concluded that claimants were not disqualified for benefits, and reversed the deputy's determinations to the contrary. These findings and decision of the appeals referee, subsequently adopted by the members of the Industrial Commission (the Commission) in orders denying the Bank's applications for review, became the findings and decision of the Commission for the purpose of judicial review. § 288.200(1); Von Hoffman Press, Inc. v. Industrial Commission, 478 S.W.2d 403, 404 (Mo.App. 1972); Associated Grocers' Co. of St. Louis, Mo. v. Crowe, 389 S.W.2d 395, 397(1) (Mo.App. 1965).

Before proceeding to the testimonial evidence presented to the referee, we note certain relevant and significant statutory provisions bearing upon claimants' right to unemployment benefits, and then remind ourselves of the scope of our appellate review. When the present Law was enacted in 1951, the legislature declared that "the public good and the general welfare" required such enactment "for compulsory setting aside of unemployment reserves to be used for the benefit of persons unemployed through no fault of their own " (Laws of Mo. 1951, pp. 565-566) a declaration which has been carried forward unchanged to this date. § 288.020(1). (All emphasis herein is ours) And, since 1957 the Law has contained a provision expressly disqualifying a claimant for benefits if "he has left his work voluntarily without good cause attributable to his work or to his employer . . . ." Laws of Mo. 1957, p. 541; now § 288.050, subd. 1(1). Thus, instant claimants qualified for benefits under the Law only if they quit their employment for good cause, and the burden of establishing such qualification for benefits rested on them. Producers Produce Co. v. Industrial Commission, 365 Mo. 996, 1007, 291 S.W.2d 166, 173(2) (banc 1956); O'Dell v. Division of Employment Security, 376 S.W.2d 137, 142(7) (Mo. 1964).

As to questions of fact, our appellate examination is limited to ascertaining upon the whole record whether the Commissioner reasonably could have made its findings and decision, viewing the evidence in the light most favorable to the award. However, as to questions of law, we are not bound by decisions of the Commission (Citizens Bank of Shelbyville v. Industrial Commission, 428 S.W.2d 895, 897(4) (Mo.App. 1968); Combustion Engineering, Inc. v. O'Connor, 395 S.W.2d 528, 529(1, 2) (Mo.App. 1965)); and, "(w)hether the favorable evidence establishes good cause is a question of law." Citizens Bank of Shelbyville v. Industrial Commission, supra, 428 S.W.2d at 897(3). See Poggemoeller v. Industrial Commission, 371 S.W.2d 488, 498(5) (Mo.App. 1963). In reviewing the record, we remain mindful that § 288.020(2) requires a liberal, yet fair and reasonable, construction of the Law, and that the disqualifying provisions of § 288.050 must be strictly construed. O'Dell v. Division of Employment Security, supra, 376 S.W.2d at 141-142(3-5); Kroger Company v. Industrial Commission, 314 S.W.2d 250, 254(3) (Mo.App. 1958).

Turning to the facts, we find that the changes proposed by the new bank management, which claimants cited as motivating and justifying their voluntary termination of employment, pertained to the periodic wage payment dates, sick leave benefits, and scheduling of bank employees' working hours each week. (a) Wage payment dates. Employees were being paid every two weeks. The proposed change was to pay them the first and fifteenth of each month. (b) Sick leave benefits. The former management had granted sick leave of seven days each year with any unused sick leave carried over and accumulated. The new management proposed to grant annual sick leave of five and one-half days, any unused portion of which could not be carried over and accumulated. (c) Scheduling of working hours each week. The bank was open for business five and one-half days each week, with banking hours from 9 A.M. to 3 P.M. on Monday through Friday and 9 A.M. to noon on Saturday. Claimants testified that they "started" at 8 A.M. and "worked until done," whenever that might have been. However, there was no showing or suggestion that any record reflecting the number of hours worked by each employee during any day or week had been kept. Under the former management, each claimant did not work one day during the week. The plan outlined by new management contemplated elimination of this one day off work each week. Vice-president Hunter insisted that would not necessarily have increased the number of hours either claimant would have worked during the week a statement for which no explanation or elaboration was volunteered or sought.

Claimants also complained that they would have lost nine days' holiday pay each year by reason of the proposed elimination of one day off work each week. However, Hunter stated positively that the proposed plan recognized and granted the same holidays with pay, and such explanation as claimants undertook concerning their apprehension that holiday pay would have been eliminated was so diffuse, vague, amphibological, uninterpretable and meaningless that it afforded no evidentiary basis for administrative or judicial validation of that apprehension.

It is important to note and bear in mind that none of the foregoing proposed changes were presented to claimants as being firm and final. On the contrary, Hunter pointed out to claimants (as they conceded ) that the new owners had purchased the bank only recently and were "in sort of a state of limbo," that the proposed changes were not hard-and-fast rulings and "adjustments" would be made, and that "we would have to wait and see what the final outcome would be." And, the referee recognized and confirmed in his written "Findings" that "(t)he employer's president (Reed) told the claimants that the changes were only temporary (and) . . . that further adjustments were being considered and he asked them to wait and see the final result of the changes."

The evidence presented to the referee showed that indeed shortly thereafter (and apparently before the proposed changes were to be placed in effect on a trial basis) "adjustments" were made, one of them being, a return to the prior practice of scheduling working hours so that each employee had "a day off (each week) as previously," thus eliminating any basis for complaint in one of the three areas outlined supra, namely, scheduling of working hours each week, and thereby also disposing of the related and dependent nebulous complaint about possible loss of holiday pay.

It is self-evident that, in and of itself, simply changing wage payment dates from every two weeks to the first and fifteenth days of each month, could not have adversely affected any employee; and, there was no evidence or showing that it did. This area of complaint was patently sans substance or validity.

In the sole remaining area of complaint, to wit, sick leave benefits, the proposed change from (a) sick leave of seven days each year with any unused portion thereof carried over and accumulated to (b) sick leave of five and one-half days each year which, if not used, could not be carried over, was implemented and in effect...