Messina v. Iowa Dept. of Job Service

• Decision Date: 23 November 1983
• Docket Number: No. 69367,69367
• Citation: 341 N.W.2d 52
• Parties: Michael L. MESSINA, Appellee, v. IOWA DEPARTMENT OF JOB SERVICE, Appellant.
• Court: Iowa Supreme Court

Page 52

341 N.W.2d 52

Michael L. MESSINA, Appellee, v. IOWA DEPARTMENT OF JOB SERVICE, Appellant.

No. 69367.

Supreme Court of Iowa.

Nov. 23, 1983.

Rehearing Denied Dec. 21, 1983.

Walter F. Maley, Blair H. Dewey, and Edmund Schlak, Jr., Des Moines, for appellant.

Martin Ozga, Des Moines, for appellee.

Considered by REYNOLDSON, C.J., and UHLENHOPP, HARRIS, McCORMICK, and McGIVERIN, JJ.

REYNOLDSON, Chief Justice.

The controlling issue in this appeal is whether an employee is entitled to unemployment benefits when he is discharged for writing a letter to the editor calling for a wildcat strike in direct violation of his union's contract with the employer. The Iowa Department of Job Service (department) found the employee was guilty of misconduct and denied compensation. On review the district court reversed on the ground there was no compelling state interest that would restrict the employee's first amendment right to free speech. We reverse and remand with directions.

The evidence disclosed the employee had worked for Lennox Industries for several years. He had served as union steward of the employees' union and was vice chairman in 1979 and 1980. The employee admitted he was thoroughly familiar with Article 3, Section 2A, of the union's contract with Lennox:

[A]ny activity by the Union or an employee to instigate, condone, or participate in a strike, slowdown, or a work stoppage, will be subject to discipline.

(Emphasis added.)

April 29, 1981, the Marshalltown Times-Republican printed a letter written by the employee that contained the following:

Workers have at their disposal a very effective weapon to get the boss' attention--the strike. The contract now in force must be unilaterally declared to be null and void and all production and shipping brought to a halt until the boss is willing to negotiate, in truthful good faith, a new just and equitable contract.

Two misleaders of the union have told me they don't want to lead a strike because they are "afraid of being sued."

Uncontroverted testimony of the employer disclosed copies of this letter were posted in the plant and "it did disrupt our operation, and we did have some operating problems because of it."

Lennox discharged the employee by a letter that quoted the above contract provision. It further pointed out Your statements are inflammatory and slanderous and are intended to promote and incite actions such as strikes, walkouts or slowdowns, which are in conflict with the intent of our Labor Agreement which provides for the peaceful settlement of any labor disputes between the Company, the Union, and its employees.

Following his dismissal, the employee filed a claim for unemployment benefits with the department. A claims representative granted the claim. Lennox appealed and a hearing was held before a hearing officer.

At the hearing the employee testified that in writing the letter he "was simply expressing [his] opinion in accordance with the first amendment of the Constitution of the United States."

The hearing officer held the employee's letter contained "fighting words" and was not within the protection of the first amendment. He found the employee was guilty of misconduct and denied unemployment benefits. The department appeal board summarily affirmed.

The employee filed a petition for judicial review and the district court reversed. The department then instituted this appeal.

The parties raise three issues for our resolution: (1) Was Lennox's appeal from the claims deputy's decision untimely filed so as to void all subsequent proceedings for lack of jurisdiction? (2) Was the employee guilty of misconduct in writing the letter for newspaper publication? (3) Was the state constitutionally compelled to grant the employee compensation benefits because he was exercising his free speech rights under the federal and state constitutions?

I. Was the Appeal Timely?

At the threshold we must examine an issue raised for the first time in this court by the employee. He contends Lennox's appeal from the favorable decision of the claims representative was not filed in time, thus there was no jurisdiction to support any of the subsequent proceedings.

The representative's ruling allowing benefits was filed May 22, 1981, and by rule must be presumed mailed to the parties on the same date. See Iowa Admin.Code 370-4.35(3).

Lennox's notice of appeal was dated June 1, 1981. The parties agree it was mailed the same date. The notice was not received by the department, however, until June 4, 1981, thirteen days after the claims representative's ruling presumably was mailed.

Iowa Code section 96.6(2) provides that:

Unless the claimant or other interested party, after notification or within ten calendar days after such notification was mailed to the claimant's last known address, files an appeal from such decision [of the claims representative], such decision shall be final ....

(Emphasis added.) Compliance with this appeal provision is jurisdictional. Beardslee v. Iowa Department of Job Services, 276 N.W.2d 373, 377 (Iowa 1979). If the employee's contention is adopted, then the appeal notice was three days late, and in the absence of a constitutional challenge, the department and district court would be divested of authority in the subsequent proceedings. See City of Des Moines v. Civil Service Commission, 334 N.W.2d 133, 136 (Iowa 1983); Franklin v. Iowa Department of Job Service, 277 N.W.2d 877, 881 (Iowa 1979).

The employee argues the issue is controlled by the department's rule, Iowa Administrative Code 370-6.2(1):

a. A party appealing from a decision of a representative of the department shall mail to the appeals section, Iowa Department of Job Service ... Des Moines, Iowa ... within ten calendar days after such decision was mailed ... a notice of appeal ....

b. The date of receipt of the notice of appeal in the appeal section will be used to determine the timeliness of the appeal.

The department has also provided the following rule, Iowa Administrative Code 370-4.35(1):

Except as otherwise provided by statute or by department rule, any ... appeal, ... notice, ... submitted to the department shall be considered received by and filed with the department:

a. If transmitted via the United States postal service ... on the date it is mailed as shown by the postmark, or in the absence of a postmark the postage meter mark of the envelope in which it is received; or if not postmarked or postage meter marked or if the mark is illegible, on the date entered on the document as the date of completion.

b. If transmitted by any means other than the United States postal service or its successor, on the date it is received by the department.

(Emphasis added.) In oral argument in the submission of this appeal, the department relied on the last-quoted rule. We have observed that 370-4.35(1) is within the authority granted the department by the legislature. See Cosper v. Iowa Department of Job Service, 321 N.W.2d 6, 8 (Iowa 1982).

In the interpretation of statutes, all relevant legislative enactments must be harmonized, each with the other, so as to give meaning to all if possible. Drake v. Polk County Board of Supervisors, 340 N.W.2d 247, 249-50 (Iowa 1983), quoting Matter of Estate of Bliven, 236 N.W.2d 366, 369 (Iowa 1975). Generally, the rules of statutory construction and interpretation also govern the construction and interpretation of rules and regulations of administrative agencies. Motor Club of Iowa v. Department of Transportation, 251 N.W.2d 510, 518 (Iowa 1977). We must construe these rules together with Iowa Code section 96.6(2) to harmonize them, using common sense and sound reason. See 2 Am.Jur.2d Administrative Law § 307 at 135 (1962).

In Beardslee, 276 N.W.2d at 376, we found the purpose of Iowa Code section 96.6(2) is "to provide ten days for appeal after mailing of the notice of agency decision." In the 1971 Iowa Code, section 96.6(2) provided a five-day limit for those receiving delivered notice, and a seven-day limit for mailed notice, the extra two days being allowed for what was then the ordinary time required to deliver mail. See Smith v. Iowa Employment Security Commission, 212 N.W.2d 471, 473 (Iowa 1973).

In Smith, 212 N.W.2d at 473-74, we held that the seven-day mailing rule, under then current mail delivery, deprived a claimant "of the due process he [was] entitled to and which the legislature intended him to have," at least when the claimant, following receipt of claim disallowance, had only three days to seek out a lawyer, obtain advice, and decide whether to appeal. Our opinion did not address the further problem of time required for return mail. The same analysis undergirded our decision in Eves v. Iowa Employment Security Commission, 211 N.W.2d 324 (Iowa 1973), in which we held the seven-day rule did not afford a claimant "reasonable opportunity for fair hearing" as required by Iowa Code section 96.6(3). We there wrote:

Such limited time of notice is of dubious validity when the recent and continuing breakdown in United States mail deliveries assumes proportions of a national disaster.

Id. at 326.

Following Smith and Eves, the legislature extended the section 96.6(2) appeal time to ten days. 1979 Iowa Acts ch. 33, § 13(2). We assume the department had similar concerns relating to mail service when, in rule 370-4.35(1), it eliminated the return mail time by providing that an appeal would be "considered received by and filed with the department" on the date mailed. An analogous concept is found in Iowa Rule of Appellate Procedure 30 ("Filing may be accomplished by mail addressed to the clerk of the supreme court, and shall be deemed filed on the day of mailing."). See also Iowa R.Civ.P. 82(b) and 83(b).

We hold rule 370-6.2(1), relied on by the employee in arguing Lennox's appeal was untimely, may be reconciled with 370-4.35(1). Rule 370-6.2(1)(a) seems to mandate that an appeal be sent by mail. Assuming without...