Custom Meat Packing Co. v. Martin

• Decision Date: 08 March 1963
• Docket Number: No. 9255,9255
• Citation: 379 P.2d 664,85 Idaho 374
• Parties: CUSTOM MEAT PACKING COMPANY, Appellant, v. Ruby M. MARTIN, Claimant for Employment Security Benefits, and Employment Security Agency, Respondents.
• Court: Idaho Supreme Court

Page 664

379 P.2d 664

85 Idaho 374

CUSTOM MEAT PACKING COMPANY, Appellant, v. Ruby M. MARTIN, Claimant for Employment Security Benefits, and Employment Security Agency, Respondents.

No. 9255.

Supreme Court of Idaho.

March 8, 1963.

J. M. Lampert, Eli A. Weston, Boise, for appellant.

William F. Galloway, Boise, for respondent Ruby M. Martin.

John W. Gunn, Boise, for respondent Employment Security Agency.

TAYLOR, Justice.

Ruby M. Martin, claimant (respondent), was employed by Bert T. Kinzer and Arliss Joslin, d. b. a. Custom Meat Packing Company, employer (appellant), from November, 1959, to February 10, 1962. After termination she made claim for unemployment benefits, assigning as the reason for termination that another worker had been hired; that work slacked off; and that she was laid off. 'I feel that they wanted me to quit, but I would not, so they had to lay me off.'

The employer resisted the claim, asserting that claimant had been discharged for misconduct in connection with her employment.

The determinations examiner determined that claimant was discharged for misconduct and was not eligible for benefits. Thereafter, hearing was had before an appeals examiner at which witnesses were sworn and testified in behalf of both claimant and employer. The appeals examiner reversed the decision of the determinations examiner; ruled that claimant was discharged, but not for misconduct; and allowed benefits.

Upon application of the employer, the proceeding was reviewed by the Industrial Accident Board. The board affirmed the decision of the appeals examiner. No witnesses were examined before the board. Its decision was based upon the record made at the hearing before the appeals examiner.

Where witnesses are not examined before the board and its findings and conclusions are based upon a written record, the rule that findings based upon conflicting evidence are conclusive on appeal, does not apply, and such findings are not binding upon this court. In re Markham's, Inc., 79 Idaho 307, 316 P.2d 553; Mandes v. Employment Security Agency, 74 Idaho 23, 255 P.2d 1049; Phipps v. Boise Street Car Co., 61 Idaho 740, 107 P.2d 148. In the latter case the effect of the constitutional amendment limiting this court to a review of questions of law in cases of appeal from the Industrial Accident Board was considered. It was there determined that the amendment did not make findings of the board, which were based upon a written record, binding upon this court.

The evidence for the most part is in direct conflict as to the reasons for termination of claimant's employment. We summarize part of it here, not for the purpose of making findings contrary to those made by the board, but for the purpose of illustrating the character of the conduct with which the employer was dealing, and to demonstrate that the board drew erroneous conclusions therefrom. Those conclusions were as follows:

'While claimant may have been guilty of certain acts or omissions relating to her employment, which when considered together might constitute misconduct within the meaning of the Employment Security Law, virtually all of them occurred prior to claimant's transfer to the sausage kitchen in October 1961. This transfer ameliorated the basic complaints of her employer, and the Board concludes that the employer tacitly condoned or overlooked the basic grievances which he had against claimant.

'The Board also concludes that the prime and moving cause for claimant's discharge was her purported, unauthorized contact with a customer for the purpose of persuading the customer to delay a visit to the employer's premises, and that the employer was laboring under a basic and controlling misapprehension of fact therein.

'The Employment Security Law is to be construed liberally in favor of the employee. Applying that rule of construction, there is substantial evidence to support the decision of the Appeals Examiner under review here, and the Board as a matter of law cannot properly hold that the Appeals Examiner was erroneous in this determination.'

The incident which precipitated claimant's discharge occurred on Friday, February 9, 1962. Mrs. Stayner, a customer, had ordered a beef loin, a beef tongue, and a veal liver, which she was to call for on February 9th. Claimant was not working on Friday afternoon. She called Mrs. Stayner from her home and advised that she, claimant, was not at work that day, but would be back on the job Monday; that the liver was not in stock; that the customer could call for so much of the order as was available, or call for all of it later. The customer responded that she would wait until Monday or Tuesday. Claimant then, by phone, advised Mrs. Joslin, bookkeeper at the plant, that the customer would not call that day. Learning of this, Mr. Kinzer phoned claimant that he did not approve of her contacting customers and telling them not to call for meats ordered. Claimant told her employer she had not advised the customer not to come that day. At claimant's request the customer subsequently, by phone, advised Mrs. Joslin to that effect. However, on Saturday morning, in a further telephone conversation, the employer notified claimant she was discharged for that, and other reasons.

When the employer, at the hearing, was asked what occurred leading up to claimant's termination, he answered:

'A. Well, it wasn't anything that happened all at once. It was her misconduct from some time back. I couldn't tell her to do anything but what she would always talk back to me, and her--weinies, she would not put them in the package and put them in neat so that they would go out like they should go out. She's a fast worker and a good worker. I say that, but she is a sloppy worker, and she would not clean up her table. In fact, you had to follow her around all the time. And as far as her language is concerned, why, I believe she's a little short on he words that she used.

'Q. Do you mean that it was actually worse than has been stated?

'A. Yeah, that's right.

'Q. Uh-huh. Now when you told her that the weiners were not what they should be, that the packaging was sloppy and so forth, what did she say?

'A. Well, I couldn't tell you what she said. She always would talk back to me. It didn't make any difference what I said to her in regards to her work, when she wasn't doing it right, she would always talk back to me.'

Other witnesses for the employer testified that claimant was not neat in her work; that her work was sloppy; that at quitting time she did not clean up her work table or the machines she had used; that retail outlets for the company's products frequently brought back packaged goods because the packaging had not been neatly done; that claimant used violent and profane language directed to her employers and fellow workmen and in the presence of customers.

During most of the period of her employment claimant worked in the front of the plant cutting, wrapping meat, operating the weiner packaging machine, and waiting on customers. About October 1, 1961, the employer transferred claimant to the sausage kitchen where her lack of neatness and her language would not be offensive to customers. Another woman employee replaced claimant in the cutting, wrapping and packaging room. The employer stated the reason for the change:

'A. * * * it was her unneatness that I put her back in the kitchen. The stores blamed me theirselves that--that our work that she was putting out was not done up neat enough. And this other lady was doing her work neat. And her profane language that she used before customers that came in there, I put her in the back in the kitchen so as to get her away from the people that came in there.

'Q. But you didn't ever say anything about this profane language, do I understand that correctly?

'A. Yes, I did. I did.

'Q. You did?

'A. I asked her several times to be careful with her language.

'Q. Did you get an answer?

'A. Oh, I don't know whether I did or not. If I did, it didn't amount to much. And she'd be careful for a while, and then it's the same old thing.'

After her transfer to the kitchen, claimant worked in the cutting, packaging and wrapping room when she was not needed in the kitchen.

Mr. Kinzer testified that he repeatedly called claimant's attention to her lack of neatness and cleanliness; to her offensive language; to her failure to clean up the packaging machine; and asked her repeatedly to correct these deficiencies. He further testified that on these occasions she became argumentative and talked back to him. The testimony of Mr. Kinzer in these respects was corroborated by Mrs. Joslin and two other employees. Such conduct was for the most part denied by claimant. Responding to her testimony that she never left the packaging machine without cleaning it up, Kinzer's testimony was that she merely wiped it off and that such cleaning was not sufficient to keep the equipment within the permissible range of bacteria count to meet the requirements of federal inspectors. However, claimant did admit that her employer had called attention to her uncleanliness and want of neatness, but said it was very infrequent. As to cleaning the machine, and after denying that she ever left it unlean, she testified as follows:

'Examiner: Did you understand that you were to clean the machine?

'Mrs. Martin: Yes, I understood I was to clean the machine.

'Examiner: Did you ever go away and leave it because it was 4 o'clock and time for you to go home?

'Mrs. Martin: I might have. I can't remember.

'Examiner: And leave it dirty that day?

'Mrs. Martin: Yes--but I might have. I can't remember that. If I did, it was very few times.'

On one occasion near the end of the day, Joslin, one of the partners, had asked the employees to put some peppers to soak. Claimant responded that they did not have time to do it and that the peppers would be too hard on their hands because they would be too dry. While engaged in stemming the peppers, claimant...