Smith v. Labor and Industrial Relations Com'n of Missouri, WD34458
| Decision Date | 16 August 1983 |
| Docket Number | No. WD34458,WD34458 |
| Citation | 656 S.W.2d 812 |
| Parties | Albert D. SMITH, Petitioner-Appellant, v. LABOR AND INDUSTRIAL RELATIONS COMMISSION OF MISSOURI, Missouri Division of Employment Security, and Foundation Building Company, Respondents. |
| Court | Missouri Court of Appeals |
Steven L. Hobson, Legal Aid of Western Mo., Kansas City, for petitioner-appellant.
Larry R. Ruhmann, Rick V. Morris, Jefferson City, for respondent Mo. Div. of Emp. Sec.
Alan J. Downs, Jefferson City, for respondent Labor & Industrial Relations Com'n of Mo.
Before WASSERSTROM, P.J., and KENNEDY and NUGENT, JJ.
Claimant Smith applied for unemployment benefits, which were denied by a deputy of the Missouri Division of Employment Security. That denial was affirmed by an appeals referee and was approved on review by the Labor and Industrial Relations Commission. On petition for review, the circuit court affirmed, from which judgment Smith pursues the present appeal. We reverse and remand because of the failure by the administrative agency to fully explore the facts and develop an adequate record.
Smith worked as a laborer for Foundation Building Company ("Foundation") from August 1980 to May 1981 under the supervision of George Dusselier, Foundation's president. Foundation did work in both Kansas and Missouri. Smith, a resident of Kansas, filed for benefits under the Kansas unemployment compensation law soon after his termination and collected benefits for two weeks.
On July 14, 1981, Smith received notice from the Kansas agency of his ineligibility for benefits and the agency demanded repayment of $158 which had been paid to him. According to Smith, that notice and demand were triggered by statements made to the Kansas Division of Employment by Dusselier to the effect that Smith had left work for unknown reasons, that he had returned to work temporarily, but that he had again quit.
A hearing was held before the Kansas Division of Employment, resulting (according to Smith) in a ruling that Smith was entitled to unemployment benefits. Smith thereafter filed an interstate claim under Missouri law in September 1981, in which The Division then sent a letter to Smith dated October 19, 1981, advising him to report to George Dusselier of Foundation with respect to their job offer. Smith responded by returning the notice to the Division with the following notation written on the back:
he stated that his benefits under Kansas law had become exhausted on August 22, 1981. Notice of this new claim was sent to Foundation on September 15, 1981, and Dusselier returned the notice to the Missouri Division of Employment Security with a notation:
On October 29, 1981, a deputy of the Missouri Division ruled that Smith was disqualified to receive any further benefits for the following reason: Smith then duly appealed from that ruling, stating as his reason: "I don't beleive [sic] Geo. Dusselier had work." A hearing was held on that appeal before Larry L. Campbell, a Kansas Appeals referee who had been duly designated to take the testimony in electronic recorded form.
Smith testified that he had been laid off by Foundation in May 1981. He explained the manner of the lay off as follows: With respect to his failure to report to Dusselier for work in response to the Division's notice of October 19, 1981, Smith explained his reasons as follows: His testimony then proceeded as follows:
Q. Let's go back there. You mentioned before we went on the record that you appeared at another hearing. Isn't that right?
A. Uh-huh.
Q. When was that?
A. Let's see. Okay. (Unintelligible)--the other hearing was July 22 at 12:00 noon, of '81.
Q. Who was the Referee?
A. Edward R. McQuinn.
Q. Can I see that notice? And he issued a decision in this matter?
A. Yes.
Q. Do you have that with you?
A. No, I asked--or called into the State to get another determination and they said it was just one per customer, they couldn't allow me another one.
Q. What was the result of the decision?
A. It wiped out overpayment, and it said that I had left work without good cause--or that I had left work with go-good cause 'cause I had--was laid off and re--re--decided not to return to that job.
....
Q. Well, when you got this Agency letter then on October 18, did you contact this employer for work?
A. No.
Q. And would you state again why you did not contact this employer?
A. Two reasons actually. The first reason being that the--when I had appealed it the first time in Kansas, they said that I wouldn't have to take work with him again as long as I was making--working out for o--other work, being that--that I was laid off; and secondly, I didn't think he had work because people I knew--one Q. Who?
individual, Terry Shauncoursey, he was still employed for George Dusellier [sic] and wasn't working at the time.
A. Terry Shauncoursey. He was still employed for George Dusellier [sic] and off--he didn't have no work, and so I figured it would be a deal he had minor work, enough for one day and get down there, and Mr. Dusellier [sic] over here's the type of man, I've seen him for other people to work down there, just call me every name in the book for no reason. Just, you know, just to be--ju--just be on their rearends constantly. I figured it would be a thing where I'd get down there, he'd ha--had or some (unintelligible) start a fight and are arguin' and that would be the end of the job right there. He--he--before, he had threatened to cut my pay and just do all kinds of stuff, you know, he's got a very foulmouth and if you say anything back to him, he says, (unintelligible) back or you're fired."
With respect to his failure to report to Foundation for work in October 1981, Smith further testified as follows:
"Q. Do you have anything else to say about your answers to that letter that was sent to you about possible employment with Foundation Company?
A. Yeah. I just don't believe they had work 'cause at the time, I would call in. He had people laid off.
Q. But how do you know whether they had work or not unless you called to find out?
A. The work wasn't suitable for me.
Q. All right. Why was the work not suitable?
A. I want full-time employment, not somethin' two or three hours a week. And I can't work with this man over here. I've never heard--never worked for anyone like him in my life."
When Dusselier was called upon, he testified as follows:
A. Oh, just some of this stuff he's been tellin' you (unintelligible) a lie about leaving. I mean, this is just hearsay and my word against his.
Q. Did you appear at this other hearing that he's talking--
MR. DUSELLIER [sic]:
A. My wife, she's the secretary.
Q. What?
A. She--my wife is the secretary of the company.
Q. She appeared at th-this other hearing?
A. Uh-huh.
Q. Well, did the Referee rule that the claimant had good cause for leaving the work? (Unintelligible)--
A. I really don't know. I--you've probably got those records. I'm not sure....."
With respect to the existence of a work opening at Foundation in October 1981, Dusselier testified:
"Q. Was work available?
A. Well, let's see.
Q. That week?
A. I--I--I gotta get somethin' right here (unintelligible) let's see, now, this is October--
Q. 18th to the 24th.
A. Well, (unintelligible) people's paychecks.
Q. Well--
A. (Unintelligible).
Q. The only question I have for you though is--
A. Yeah, we--we did have work from the 2nd (unintelligible). Yes, we do...."
When Smith again challenged the existence of work at Foundation for him in October 1981, Dusselier responded as follows:
The check stubs referred to by Dusselier do not appear in the record, and apparently were never produced for inspection.
A significant question was asked of Dusselier with the following colloquy:
"Before Mr. Smith was laid off back in May, did you have some problems gettin' along together?
A. I--I--I tell you what I--I think I got--I know the reason he quit and it wasn't my fault, but I'd like to just talk to you without--without him bein' here.
Q. Well, we can't do that.
A. Well, maybe I--I should git [sic] some guys--some of the other help--
Q. Well, I--I'm gonna strike that question if you can't answer it. (Unintelligible)--
A. What was the question?
Q. My question was, before he was laid off back in May, was there any problems which made it difficult for the two of you to get along together while you were workin' together?
A. No. (Unintelligible)."
After the hearing was closed, the tape was transcribed and the transcript was...
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