Kisamore v. Rutledge

• Decision Date: 03 April 1981
• Docket Number: No. 14997,14997
• Citation: Kisamore v. Rutledge, 276 S.E.2d 821, 166 W.Va. 675 (W. Va. 1981)
• Parties: Jesse R. KISAMORE v. Phyllis J. RUTLEDGE, Clerk, etc., Board of Review, etc., et al., and Island Creek Coal Co.
• Court: West Virginia Supreme Court

Page 821

276 S.E.2d 821

166 W.Va. 675

Jesse R. KISAMORE v.Phyllis J. RUTLEDGE, Clerk, etc., Board of Review, etc., et al., and Island Creek Coal Co.

No. 14997.

Supreme Court of Appeals of West Virginia.

April 3, 1981.

Syllabus by the Court

1.Findings of fact by the Board of Review of the West Virginia Department of Employment Security, in an unemployment compensation case, should not be set aside unless such findings are plainly wrong; however, the plainly wrong doctrine does not apply to conclusions of law by the Board of Review.

2.Where an employee is suspended from his employment for disciplinary reasons and his reinstatement to employment is conditional, in that work must be available and the employee must pass a physical examination, and during the suspension period the employee performs no services and no wages are payable to him from the suspending employer, such employee is "otherwise" separated from employment within the meaning of W.Va.Code, 21A-1-3, and such employee is totally unemployed and eligible to receive unemployment compensation benefits.W.Va.Code, 21A-1-3;W.Va.Code, 21A-6-1.

3.Findings of fact and conclusions of law by an arbitrator in an employment dispute matter are not binding upon the West Virginia Department of Employment Security or the courts of this State.

Allan N. Karlin, Morgantown, for petitioner.

Callaghan & Callaghan and Dan O. Callaghan, Richwood, for respondents.

McHUGH, Justice:

This action is before this Court upon the petition, filed September 19, 1980, of Jesse R. Kisamore who appeals from an order of the Circuit Court of Kanawha County, West Virginia, entered July 22, 1980, which order affirmed a final decision of the Board of Review of the West Virginia Department of Employment Security denying the appellant unemployment compensation benefits.This action is now submitted for decision upon the petition, all matters of record, including a transcript of the January 7, 1977, hearing before the Trial Examiner of the Department of Employment Security, and upon the memoranda of law and argument of counsel.

The appellant, Jesse Kisamore, worked for the appellee, the Island Creek Coal Company, as a "lamp house, bath house attendant" from August 1965, to on or about November 23, 1976, at which time he was suspended from his employment.The appellant was a member of the United Mine Workers of America during the period of suspension.

Specifically, the record indicates that on November 23, 1976, the appellant was given a letter by his employer stating that the appellant was suspended from his employment "with intent to discharge" for (1) excessive absenteeism, (2) failure to work assigned hours, and (3) unsatisfactory service.

The testimony before the Trial Examiner of the West Virginia Department of Employment Security indicates that, during the suspension period, the appellant(1) was kept upon the company payroll, although the appellant received no wages, (2) was continued in employment seniority, (3) continued to accrue vacation pay benefits, and (4) maintained certain United Mine Workers' health benefits.

Upon being suspended, the appellant filed a grievance and requested immediate arbitration.An arbitration hearing was held in Bridgeport, West Virginia, on December 3, 1976, and the decision of the arbitrator was set forth in a written decision dated December 14, 1976.Although the arbitrator was of the opinion that the employment record of the appellant was substandard and subject to discipline, the arbitrator held that the appellant was to be reinstated to his employment as of April 4, 1977, "work available," and subject to the appellant being able to pass a physical examination normally given to any new employee of the appellee.¹

On December 6, 1976, the appellant filed a claim for unemployment compensation benefits, seeking benefits from December 5, 1976, until April 4, 1977, except for the period within such time that the appellant obtained other employment.

A deputy of the West Virginia Department of Employment Security, in a written decision dated December 15, 1976, held the appellant to be ineligible, indefinitely from December 5, 1976, to receive unemployment compensation benefits.The deputy further held that the appellant was not disqualified to receive unemployment benefits.The basis of the ineligibility ruling was the determination by the deputy that the appellant, during the period of suspension, was neither totally nor partially unemployed.

The appellant appealed the decision of the deputy to the trial examiner, and an evidentiary hearing was held on January 7, 1977.The trial examiner, by written decision dated January 11, 1977, affirmed the decision of the deputy holding the appellant to be ineligible, but not disqualified to receive unemployment compensation benefits.Specifically, the trial examiner made findings of fact and conclusions of law to the effect that the appellant was not separated from his employment during the suspension period and, thus, was neither totally nor partially unemployed.²

The appellant then appealed the decision of the trial examiner to the Board of Review of the West Virginia Department of Employment Security.The Board of Review by written decision dated April 1, 1977, adopted the findings of fact and conclusions of law of the trial examiner and affirmed the decision of the trial examiner.

The Board of Review stated that because the appellant's employment was never legally or technically terminated during the suspension period, the appellant was not totally unemployed.The Board further stated that because there was no "lack of work" within the meaning of the statutory definition of partial unemployment, but rather the appellant was being disciplined, the appellant was not partially unemployed.

Subsequently, the appellant, by petition, appealed the decision of the Board of Review of the West Virginia Department of Employment Security to the Circuit Court of Kanawha County, West Virginia.Pursuant to W.Va.Code, 21A-7-17, all unemployment compensation appeals from the Board of Review must be made to the Circuit Court of Kanawha County.

By written opinion dated June 12, 1980, the circuit court affirmed the decision of the Board of Review holdingthe appellant to be ineligible but not disqualified to receive unemployment compensation benefits.This opinion was made part of the record by order entered July 22, 1980.

As did the Board of Review, the circuit court determined that the appellant's employment relationship was not severed during the suspension period and, thus, the appellant was not totally unemployed.Moreover, the court, citing Pickens v. Kinder, 155 W.Va. 121, 181 S.E.2d 469(1971), stated that there was no "lack of work" within the meaning of the statutory definition of partial unemployment to justify the appellant's assertion that he was partially unemployed.

In the proceeding before this Court, the appellant contends that he was totally unemployed during the suspension period within the meaning of the West Virginia unemployment compensation law and, thus, entitled to unemployment benefits.Specifically, the appellant contends that his reinstatement to employment was conditioned upon the availability of work and passing a medical examination and, further, that although a technical employee-employer relationship may have continued during the suspension period, the appellant was, in effect, totally unemployed because he performed no work and received no wages.

In the alternative, the appellant contends that he was partially unemployed during the suspension period and, thus, entitled to unemployment benefits.Here, the appellant contends that a "lack of work" existed within the statutory definition of partial unemployment in that the appellant could not voluntarily return to his employment.

Furthermore, the appellant contends that the eligibility provisions of the West Virginia unemployment compensation statutes are unconstitutional because there is no rational distinction between a discharged employee, who may ultimately receive unemployment compensation benefits, and an employee upon a prolonged suspension from employment, who presumably may not receive unemployment compensation benefits.

The appellee, on the other hand, contends that the circuit court was correct in its determination that the appellant was neither totally nor partially unemployed and, thus, not entitled to unemployment compensation benefits.The appellee contends that, inasmuch as the appellant's employment relationship was never severed during the suspension period, the appellant was not totally unemployed.Furthermore, the appellee asserts that inasmuch as the suspension was brought about by the appellant's poor employment record, the appellant was voluntarily unemployed, and, therefore, no "lack of work" existed to justify the appellant's claim for partial unemployment.

As stated in the written opinion of the Circuit Court of Kanawha County, the eligibility and disqualification provisions of the West Virginia unemployment compensation law constitute a two-step process to entitlement to unemployment compensation benefits.When an individual is held to be eligible to receive unemployment benefits, the next step is to consider possible disqualification for benefits.Accordingly, no issue having been raised in the record before this Court with respect to disqualification for unemployment compensation benefits, the sole issue is whether or not the appellant is eligible to receive such benefits.

The Circuit Court of Kanawha County was further correct in its opinion in stating that findings of fact by the Board of Review should not be set aside in a case of this nature unless such findings are plainly wrong.W.Va.Code, 21A-7-21;Copen v. Hix, 130 W.Va. 343, 43 S.E.2d 382(1947).However, although the plainly wrong doctrine applies to findings of fact by the Board of Review, this doctrine does not apply to...