Oliver v. Creamer Heating and Appliance

• Decision Date: 28 November 1966
• Docket Number: No. 9758,9758
• Parties: George S. OLIVER, Claimant-Appellant, v. CREAMER HEATING & APPLIANCE and Department of Employment, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 795

420 P.2d 795

91 Idaho 312

George S. OLIVER, Claimant-Appellant, v. CREAMER HEATING & APPLIANCE and Department of Employment, Defendants-Respondents.

No. 9758.

Supreme Court of Idaho.

Nov. 28, 1966.

Robert C. Galloway, Boise, for appellant.

Millar & Callister, Boise, for Creamer.

Franklin H. Powell, Boise, for Department of Employment.

STEAR, Justice.

Appellant, George S. Oliver, appealed from an order of the Industrial Accident Board denying him unemployment compensation and affirming a prior decision of the Employment Security Agency's appeals examiner who had ruled appellant ineligible for employment security benefits under I.C. § 72-1366(f) ¹, because appellant had been discharged for misconduct. In the order of the board it is stated:

'The record herein sustains the decision of the Appeals Examiner that claimant's unemployment is clearly the result of his own actions, amounting to misconduct under the terms of the Employment Security Law. By a preponderance of the evidence claimant has failed to prove otherwise. As stated by the Appeals Examiner, whether claimant voluntarily quit or was discharged for such misconduct, the results as to his disqualification for unemployment insurance benefits would be the same.'

The facts material to the disposition of this case are substantially uncontradicted. Appellant worked for respondent, Creamer Heating & Appliance Company, herein sometimes referred to as 'Creamer' (the owner), for 11 years prior to the termination of his employment on or about January 22, 1965. The employer, located in Boise, is in the business of installing, repairing and servicing heating and air conditioning equipment, and is owned and operated by Charles A. Creamer. The appellant was the only regular serviceman employed by respondent employer, and in this capacity appellant handled most of the service and repair work which was furnished Creamer's customers. The employer had from 2 or 3 to as many as 12 employees. The other employees, with the exception of appellant and the shop foreman, Eldon Lindbloom, were installers, though capable of performing serve and repair work when called upon in emergency situations. However, unlike appellant, the other employees were not experienced servicemen and were not sufficiently experienced to undertake major repairs. Appellant worked almost exclusively as a serviceman and served on installation only when the shop was unusually busy.

Basically appellant worked a 5-day 8-hour week but, because of the nature of his work, appellant was required to remain on 24-hour standby to service emergency calls. Emergency service such as the repair of a furnace or an air conditioning unit was more often required during hot or cold spells in the weather. The responsibility to service such calls was that primarily of the appellant, but he was permitted to arrange for a replacement from among the other employees if appellant wished to get away for a weekend or just simply have a night off. This was done on a rather informal basis and generally he spoke to the foreman who would then secure a replacement. It is admitted by appellant it was not difficult to secure a replacement since the employees capable of repair work desired the overtime pay (time and a half) received for such calls actually made.

The appellant was dissatisfied with this system believing that some sort of rotation system would better enable him to have some time to himself without the responsibility of always being available for emergency repair work on his off hours. On several occasions appellant complained to the shop foreman that the situation was unfair, but the record does not indicate he insisted on a change or that he even contacted the owner about any change.

On the other hand the evidence discloses appellant was hired as Creamer's only regular service repairman after appellant applied for the position in response to a newspaper advertisement. When appellant accepted the job he was informed of the requirements of the job, including the responsibility of remaining on 24-hour standby call. It is admitted appellant has been the service repairman for the employer for most of his 11 years with the company.

On his off hours, appellant, who had been divorced from his wife, would quite often frequent a local tavern to drink and socialize with friends, and this interfered with his job as service repairman for Creamer. On occasion appellant could not be reached at all though no arrangement for a replacement had been made and at times, as the result of having consumed too much beer, he was unable to respond to a call which was relayed to him. When appellant did make such emergency calls customers frequently found his work unsatisfactory. The employer received complaints from customers that they could smell liquor on appellant's breath; that appellant had been drinking, and that they would prefer appellant would not be sent to their homes since this was offensive to them. Complaints also came in about the work appellant did and customers on several occasions called in to report that equipment which appellant was supposed to have repaired broke down within an hour or two after appellant had left. One of the other employees would have to be dispatched to handle the repair work and such duplication became costly for the employer; in fact it cost the business hundreds of dollars.

Appellant was informed of the complaints which the employer had received concerning his work. The testimony, however, indicates appellant continued to drink during his off hours when he was on standby and that the problem had, in the last six months, become worse.

The contention appellant principally advances is that it is unfair for the employer to expect him to refrain from drinking on his off hours where his job required him to be on standby emergency call 7 days a week. Appellant feels that it could more equitably have been arranged for him to have been relieved from emergency service on a regular rotation basis and claims the pressure of being constantly on standby was making him nervous. It is not denied by appellant that he drinks, but appellant claims his drinking did not interfere with his work. The record does not substantiate this contention.

Appellant's drinking problem was one of considerably long standing; and the employer and consistently and repeatedly attempted to help him with this problem, even to the extent of furnishing his bail on an occasion when appellant was arrested and incarcerated on a charge of driving while under the influence of intoxication liquor. The problem became consistently worse and the incident which led to appellant's termination or his voluntary quitting of employment occurred on a Friday night, January 22, 1965, between 9:00 and 10:00 o'clock p. m. A woman customer ill with flu placed an emergency call received by Creamer for a serviceman to repair the furnace in her home. Creamer called appellant at the local tavern which appellant was known to frequent and explained the circumstances to him. Appellant drove to the address but not seeing any lights on in the house returned to the tavern, without ever getting out of the truck, for the ostensible purpose of calling the customer to have her turn on her house lights. About an hour later Creamer, who had in the meantime received an inquiry from the customer, called appellant at the tavern for the second time before appellant was able to make his call to the customer. Creamer asked appellant whether he had made the call. When appellant replied in the negative, Creamer told appellant to forget it and that a replacement would service the call.

In about another one-half hour appellant called Creamer and asked him whether the call had been made. Creamer responded that the appellant was so drunk he could not make the call. The appellant believed that Creamer then told him not to bother to come in on Monday from which appellant understood he had been fired. Creamer however testified:

'I said, 'George,' I said, 'you're so cockeyed drunk,' I said, 'that you couldn't go on the call.' I says 'as far as I'm concerned,' I said, 'you report to work Monday morning.' I says, 'There'll be no drinking when you're supposed to be on service calls, and,' I said, 'if you come to work', I said, 'there'll be no drinking; otherwise,' I said, 'don't show up for work.'

'Q. You gave him that choice, then of coming...