Ross v. Whelan Sec. Co.

• Decision Date: 13 July 2006
• Docket Number: No. 27276.,27276.
• Parties: Carolyn J. ROSS, Claimant-Appellant, v. WHELAN SECURITY CO., and Division of Employment Security, Respondents-Respondents.
• Court: Missouri Court of Appeals

195 S.W.3d 559

Carolyn J. ROSS, Claimant-Appellant, v. WHELAN SECURITY CO., and Division of Employment Security, Respondents-Respondents.

No. 27276.

Missouri Court of Appeals, Southern District, Division One.

July 13, 2006.

COPYRIGHT MATERIAL OMITTED

Gregory D. Groves, Lowther Johnson, Springfield, MO, for Appellant.

Larry R. Ruhmann, Jefferson City, MO, for Respondent Division of Employment Security.

Bradley G. Kafka and Chad A. Horner, Gallop, Johnson & Neuman, L.C., St. Louis, MO, for Respondent Whelan Security Company.

GARY W. LYNCH, Judge.

Appellant Carolyn Ross ("Ross"), who was formerly employed by Respondent Whelan Security Company ("Employer"), appeals the determination by the Labor and Industrial Relations Commission ("Commission") that she is disqualified from receiving unemployment benefits by the provisions of Section 288.050.1(3)¹ because she failed without good cause to accept suitable work offered by an employer by whom she was formerly employed. We reverse and remand.

1) Factual Background

Ross worked for Employer for approximately ten years. Her last assignment for Employer was as daytime supervisor at Southwestern Bell in Springfield, Missouri. Employer's contract to provide security services for Southwestern Bell terminated on March 31, 2005. Employer advised Ross that her assignment to the Southwestern Bell account would terminate on that same date. In anticipation of the termination of Ross's assignment to the Southwestern Bell account at the end of the Employer's contract, Ross and Employer had discussions in February and then again on March 28, 2005 about re-assigning Ross to either one of Employer's two other contract locations in Springfield. For a variety of reasons, neither proposed assignment was acceptable to Ross. Ross's last day of work for Employer was March 31, 2005.

2) Procedural Background

Ross filed her claim for unemployment benefits on April 5, 2006, alleging that she was separated from her employment with Employer for "LACK WRK." Employer filed a timely protest pursuant to Section 288.070.1, alleging that "[t]he claimant voluntarily quit after refusing a suitable offer of work." Respondent Division of Employment Security ("Division"), acting by its deputy, determined that Ross was disqualified for unemployment benefits after April 3, 2005, because she failed, without good cause, on March 28, 2005 "to apply for or accept available suitable work" offered by a former employer, citing the provisions of Section 288.050.1(3).

Ross appealed the deputy's determination to the Appeals Tribunal. After a hearing, the Appeals Tribunal entered a decision, also citing the provisions of Section 288.050.1(3), reversing the deputy's determination and finding that Ross was not disqualified for unemployment benefits because she "did not fail without good cause on March 28, 2005, to accept suitable work when offered by a former employer."

Employer filed an application for review with the Commission continuing to claim that Ross "voluntarily quit after refusing a suitable offer of work." The Commission issued an Order reversing the decision of the Appeals Tribunal, citing the provisions of Section 288.050.1(3), and deciding that "[c]laimant is disqualified for benefits until she has earned wages from insured work equal to ten times her weekly benefit amount after March 28, 2004[sic], because she refused suitable work from the Employer on that date without good cause." On September 19, 2005, the Commission issued a Correcting Order Of Commission correcting the date of the offer of work from the Employer from March 28, 2004 to March 28, 2005. Ross filed her Notice of Appeal.

3) Ross's Allegations of Error

Ross first asserts error by the Commission in that the facts found by the Commission do not support the Commission's legal conclusion that: a) the discussions between Ross and Employer occurring before her separation from employment rose to the level of offers of work, suitable or otherwise; and b) even if such discussions were offers of work, at the time they were made Employer was not a "former employer," as required to impose the disqualification contained in Section 288.050.1(3). Ross's second point of error by the Commission asserts that the facts found by the Commission do not support the legal conclusions by the Commission that the offers of work as determined by the Commission were suitable work.

We will first address the second prong of Ross's first point regarding whether Employer was a "former employer" at the time the offers were made.² Because we find this point dispositive, we do not address any other allegations of error raised by Ross.

4) Standard of Review

Our review in this case is governed by Article V, Section 18 of the Missouri Constitution³ and by the provisions of Section 288.210. CNW Foods, Inc. v. Davidson, 141 S.W.3d 100, 102 (Mo.App.2004). Under the former, we are required by the Constitution to determine whether the Commission's decision is "authorized by law" and whether it is "supported by competent and substantial evidence upon the whole record." Id. Section 288.210 provides, in relevant part:

The findings of the commission as to the facts, if supported by competent and substantial evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the appellate court shall be confined to questions of law. The court, on appeal, may modify, reverse, remand for rehearing, or set aside the decision of the commission on the following grounds and no other:

(1) That the commission acted without or in excess of its powers;

(2) That the decision was procured by fraud;

(3) That the facts found by the commission do not support the award; or

(4) That there was no sufficient competent evidence in the record to warrant the making of the award.

"Decisions of the Commission `which are clearly the interpretation or application of the law, as distinguished from a determination of facts, are not binding upon us and fall within our province of review and correction.'" K & D Auto Body, Inc. v. Div. of Employment Sec., 171 S.W.3d 100, 102-03 (Mo.App. 2005) (quoting Merriman v. Ben Gutman Truck Serv., Inc., 392 S.W.2d 292, 297 (Mo.1965) (internal quotation marks omitted)). "We independently review such questions without giving any deference to the Commission's conclusions." CNW Foods, Inc., 141 S.W.3d at 102. "Moreover, where the Commission's `finding of ultimate fact is reached by the application of rules of law instead of by a process of natural reasoning from the facts alone, it is a conclusion of law and subject to our reversal.'" K & D Auto Body, Inc., 171 S.W.3d at 103 (quoting Merriman, 392 S.W.2d at 297). Therefore, in reviewing the ultimate fact as found by the Commission that Employer was a "former employer," as required by Section 288.050.1(3) to disqualify Ross from unemployment benefits we "exercise our own independent judgment and do not defer to the Commission's conclusion, including the way in which it arrived at that conclusion by balancing, weighing, and applying the various facts it found." Id.

5) Discussion

Section 288.050.1(3) disqualifies a claimant for unemployment benefits if "the claimant failed without good cause . . . to accept suitable work when offered the claimant . . . directly by an employer by whom the individual was formerly employed[.]" In reaching the legal conclusion that this disqualification applies to Ross, the Commission stated: "For this statute to apply, the offer of work must have been extended through either the Division or a former employer. In the case at hand, [Ross] had previously worked for Employer. Thus, it was a former employer at the time it made two offers of work."

Ross contends that the first statement by the Commission is correct, but that the last statement is not supported by the facts found by the Commission. Ross asserts that according to the facts as found by the Commission, the two offers of work were made in February and on March 28, 2005, at which time Ross was still an employee of the Employer, and that, therefore, the Employer could not have been a "an employer by whom the individual was formerly employed" at the time the offers were made.

The Employer counters Ross's contention, stating that "the only thing that . . . 288.050.1(3) requires is that the offer of work be made by an employer, who is a `former employer' at the time of the claim." The Division's argument in toto on this issue is: "In the case at bar, [Ross] had worked for the employer for about ten years. Therefore, the two offers of work were in fact made by a former employer."

The particular language of Section 288.050.1(3) which is the subject of this dispute first appeared as a part of the unemployment compensation law of Missouri in 1941. Donnelly Garment Co. v. Keitel, 354 Mo. 1138, 193 S.W.2d 577, 579 (1946). No case involving this language in the statute has addressed the issue of whether the employer making the offer must be "an employer by whom the individual was formerly employed" at the time the offer is made, as Ross contends, or at the time the claim is filed, as Employer contends. See Placzek v. Div. of Employment Security, 49 S.W.3d 717 (Mo.App. 2001); Smith v. Labor and Indus. Relations Comm'n of Mo., 656 S.W.2d 812 (Mo. App.1983); Ferry v. Labor and Indus. Relations Comm'n of Mo., 652 S.W.2d 728 (Mo.App.1983); ACF Indus., Inc. v. Indus. Comm'n, 309 S.W.2d 676 (Mo.App.1958); and Donnelly Garment Co., 354 Mo. 1138, 193 S.W.2d 577. The application of this section has only been considered in the context of an offer of work made by an employer to the claimant after the claimant's work for the employer had initially terminated, i.e., the employer making the offer was a former employer both at the time the offer was made and at the time the claim was made. Id. We are thus presented with a question of first impression as to the interpretation of this statute.

In construing provisions under ...