Neeley v. Industrial Commission of Mo., Division of Employment Sec., 23916

• Decision Date: 06 April 1964
• Docket Number: No. 23916,23916
• Citation: 379 S.W.2d 201
• Parties: Dorothy A. NEELEY, Appellant, v. INDUSTRIAL COMMISSION OF MISSOURI, DIVISION OF EMPLOYMENT SECURITY, and Southwestern Bell Telephone Company, Respondents.
• Court: Missouri Court of Appeals

Page 201

379 S.W.2d 201

Dorothy A. NEELEY, Appellant, v. INDUSTRIAL COMMISSION OF MISSOURI, DIVISION OF EMPLOYMENT SECURITY, and Southwestern Bell Telephone Company Respondents.

No. 23916.

Kansas City Court of Appeals, Missouri.

April 6, 1964.

Tweedie Fisher, Jefferson City, Robert C. Eckhardt, Houston, Tex., for appellant.

Lloyd G. Poole, Jefferson City, for respondent Industrial Commission of Missouri.

John Mohler, Evans & Dixon, John R. Dixon, St. Louis, for respondent Southwestern Bell Telephone Co.

SAMUEL A. DEW, Special Commissioner.

The claimant, Mrs. Dorothy Neeley, an employee of the respondent Southwestern Bell Telephone Company at Jefferson City, Missouri, applied for and obtained from her employer what was termed a 'leave of absence' for one year because of her pregnancy. After the birth of her child and about six months before the expiration of the leave of absence, the claimant inquired of the Company if it had work for her and was told that there was none at the time. About six weeks before the expiration of the leave of absence she again applied to the Company for return to work and was granted her request. Meanwhile, however, she had filed claims for unemployment benefits for three previous weeks since the birth of her child, which claims are the basis of the present proceeding. The finding and decision of the respondent Industrial Commission having ruled her disqualified to make her claims, and such determination having been affirmed by the circuit court upon review, the claimant has appealed to this court.

For convenience the appellant will be referred to as the 'Claimant', the respondent Industrial Commission of Missouri as the 'Commission', and the respondent Southwestern Bell Telephone Company as the 'Company'.

This court is bound, as was the circuit court, by the facts as they were determined by the commission, if such findings were supported by competent and substantial evidence, in the absence of fraud. We are, therefore, confined in our consideration herein to questions of law. Section 288.210 RSMo 1959, as amended, Laws 1961, p. 435, Section 1, V.A.M.S.; Constitution of Missouri, Art. V, Section 22, V.A.M.S.

Insofar as necessary for our consideration of the legal issues presented in this appeal, the facts stated below as found by the majority opinion of the commission and as to which there was competent and substantial evidence, are deemed an adequate statement thereof. The claimant, who had worked for several years for the company, became pregnant, was suffering from headaches and other attendant symptoms, and was advised by her physician to quit work. She expected the birth of her child about December 2, 1960. She asked for and was given a leave of absence from July 31, 1960 to July 31, 1961. It was explained to her that the effect of the leave under the policy of the company was that, unlike a resignation, the leave would preserve for her the seniority rights and other credits accrued if she were returned to service for the company at or before the expiration of the leave of absence and under the conditions stated in the leave. She was asked: 'You left of your own volition? A. That's right'.

The leave of absence introduced in evidence was in printed form with written insertions, and among other provisions, stated: 'Employee plans to return to work at expiration of leave if work is available * * *. Leaves of absence do not carry any guarantee of employment * * *. Upon return to work on or before expiration of leave, only the first month of absence covered by the leave shall be credited in computing terms of employment. Eligible to death benefits under the provisions of the Plan during only the first month of absence covered by leave.'

It was the policy of the company to permit an employee in a maternity case to return to work on or before the expiration of a year's leave of absence if an opening existed, and if the employee produced a doctor's certificate showing the employee to be able to resume work.

The evidence shows that claimant was a member of a union with which the company had a working 'traffic' agreement covering certain aspects of operation, including 'leaves of absence' granted to such employees. It was provided therein in part that 'Insofar as the requirements of the service will permit, leaves of absence for good cause and for a reasonable length of time will be granted upon request. The intention of the employee with respect to return to work shall be established in writing between the employee and the company at the time the leave is granted and a copy shall be furnished the employee at the time the leave is granted'.

There was further evidence and the commission so found that a policy rule of the company was adopted in 1958, which required the company supervisor when informed of the pregnancy of an employee, to discuss and to settle with her when she would cease work, to ascertain her intention whether to resign at such time or to ask for a leave of absence covering the period of her absence, and that if she requests a leave of absence, to obtain her intention as to returning to active service at its expiration as prescribed in previous provisions referred to. The rule further provided that such leaves, when granted, shall be for one year.

Further proof showed and the commission so found that there was a subsequent rule of the company adopted in 1959, providing that when such a maternity leave of absence is granted upon the request of either the employee or employer, the employee shall have the option to resign or to be granted a year's leave of absence.

Mrs. Neeley's child was born on December 6, 1960. She became able to work again about six weeks thereafter. She had been purchasing A. T. & T. stock through the company and was allowed six months' grace for payment on the purchase and she wished to keep up the payments. According to her evidence she obtained from her doctor a certificate that she was able to work and presented it about February 1, 1961, to the company with a request to return to work. The claimant and supervisor testified that the claimant was told that no work was then available with the company at that time, but that she could apply again later.

There was evidence that the claimant was physically able and willing to work during the weeks of March 5, 1961, March 18, 1961 and April 1, 1961. Having arranged for the care of her child, claimant made claims for those weeks for unemployment compensation. She contacted five employers for employment during the weeks in question without avail. The records of her applications for employment benefits show that she described herself as 'temporarily' unemployed, and that she intended to return to work for the respondent company on April 1st. On June 17, 1961, Mrs. Neeley applied again to the company and was returned to her job. Since the date of her leave of absence, she had received no wages from the company nor elsewhere, nor had she performed any services therefor.

The commission found the foregoing facts on competent and substantial evidence...