White v. Idaho Forest Industries

• Decision Date: 28 December 1977
• Docket Number: No. 12487,12487
• Citation: 98 Idaho 784,572 P.2d 887
• Parties: Daniel C. WHITE, SSA 536 48 7127, Claimant-Appellant, v. IDAHO FOREST INDUSTRIES, Employer, and Department of Employment, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 887

572 P.2d 887

98 Idaho 784

Daniel C. WHITE, SSA 536 48 7127, Claimant-Appellant, v. IDAHO FOREST INDUSTRIES, Employer, and Department of Employment, Defendants-Respondents.

No. 12487.

Supreme Court of Idaho.

Dec. 28, 1977.

Raymond C. Givens, Idaho Legal Aid Services, Inc., Coeur d'Alene, for claimant-appellant.

Wayne L. Kidwell, Atty. Gen., R. LaVar Marsh, Deputy Atty. Gen., Roger B. Madsen, Asst. Atty. Gen., Boise, for defendants-respondents.

BISTLINE, Justice.

Claimant White was a member of the stand-by crew at Idaho Forest Industries (I.F.I.). Permanent workers have various privileges regarding absences from work. In the nature of things, stand-by workers have no such privileges, and are expected to be on-call at all times. White was discharged in June, 1976, on the grounds that in one week he had twice failed to report for work when called to replace absent workers. White applied for unemployment compensation benefits and was denied, both at the determination and redetermination stages, because he was found to have been discharged for "misconduct" in connection with his employment.

White appealed these adverse decisions and prevailed before the Appeals Examiner who ruled on September 24, 1976, that claimant's unemployment was not due to discharge for misconduct in connection with his employment. This decision, in turn, was appealed on October 1, 1975, by the Gibbens Company, who represented I.F.I. throughout those proceedings. The appeal hearing was scheduled for November 18, 1976.

White himself, as the Commission noted in its order, did not attend. The Commission's order of December 13, 1976, reversed the ruling of the Appeals Examiner, not by holding that White was guilty of "misconduct," but on the previously unmentioned grounds that White had "failed without good cause to accept suitable work when offered."

I.

On appeal, White argues that the notice served upon him regarding the hearing before the Industrial Commission did not put him on notice that the Commission might hear new evidence and might determine his eligibility on the basis of a theory which had never been raised below. As such it failed to comply with statutory and constitutional requirements.

In its notice of appeal, which was by means of a letter, filed on behalf of I.F.I., Gibbens Company stated:

We respectfully request the Commission's review of the above case. We believe claimant's separation was for misconduct in connection with the work.

We plan to appear before the Commission with new evidence that is pertinent to this case.

Gibbens Company did not have the kindness to favor White with a copy of this letter. The notice which the Commission served upon White did not inform him that Gibbens Company intended to put on new evidence before the Commission. ¹ Neither did it inform him that the issue on which he had prevailed below might not prove dispositive if the Commission, faced with new evidence, chose to allow or interject a new issue into the proceedings. On the contrary, the notice states that the claimant need not attend the hearing before the Commission if he is satisfied to rest upon the record created below:

If you do not intend to present additional evidence, then attendance is not compulsory. The Commission must, in any event, review the record as transmitted by the agency. This record includes any testimony taken by the agency. If no appearances are made, the Commission will make its decision on that record. If you have no additional evidence to submit and are willing to have the matter reviewed on the record as it is, please so notify the Industrial Commission at as early a date as possible. (Emphasis added.)

Having no new evidence to present, and having prevailed "on the record as it is," and not being informed that Gibbens Company intended to introduce new evidence, White could hardly be expected to, and did not, attend. Such a notice violates the express requirements of the Idaho statute governing the type of notice which must be served upon parties to Commission hearings:

Notice of hearings Service. The commission shall give at least ten (10) days' written notice of the time and place of hearing and of the issues to be heard, either by personal service or by registered or certified mail. (Emphasis added.) I.C. § 72-713

In this case, the notice contains no mention of the precise issue to be heard before the Commission, much less the Commission's intent to raise the issue of failing to accept suitable work, which, to that date, had never arisen at all.

A similar situation was reviewed in Publishers Paper Co. v. Morgan, 10 Or.App. 94, 498 P.2d 798 (1972). In that case, the claimant left work when he reached the mandatory retirement age specified in his collective bargaining agreement. The referee declared him ineligible as having left his work "voluntarily" and without "good cause." The Employment Appeals Board reversed and held that the worker "was involuntarily separated from his work." In so ruling, the Appeals Board refused to pass upon other issues which the petitioner (employer) attempted to raise for the first time at that level. The Oregon Court held that issues which had not been raised by the employer in its request for hearing, and of which the employee had not been notified, could not be raised for the first time before the Board:

. . . the Request for Hearing filed by petitioner (employer) was on the sole basis that the claimant was not discharged but "was retired under a compulsory retirement program sponsored by his union." Furthermore, the Notice of Hearing issued pursuant to that request stated only that the

"ISSUES ARE:

" * * *RE:

"(2) ORS 657.176(1) or (2). Whether claimant's unemployment is due to having voluntarily left work without good cause or was discharged for misconduct with the work.

" * * *."7.1

Neither the Request for Hearing nor the notice thereof contended that the claimant was ineligible under ORS 657.205 (the equivalent of I.C. § 72-1368(g) which grants the Commission the right to hear "additional evidence" on appeal) or any other provision of the law, as the employer now contends. We think it follows that under those circumstances neither the Hearing Officer nor the Board had jurisdiction to consider grounds not asserted in the Notice of Hearing nor in the Request for Hearing. (Emphasis added.) 498 P.2d at 801.

Idaho case law, though it has developed in other contexts, is equally insistent that an administrative tribunal may not raise issues without first serving the affected party with fair notice and providing him with a full opportunity to meet the issue. See, Intermountain Gas Co. v. Idaho Public Utilities Com'n, 97 Idaho 113, 540 P.2d 775 (1975); Washington Water Power Co. v. Idaho Public Utilities Com'n, 84 Idaho 341, 372 P.2d 409 (1962). The order of the Industrial Commission, because it rests upon an issue of which the claimant had no fair notice, violates the due process requirements of this State's Constitution, Idaho Const. art. 1, § 13, and must be reversed.

II.

The Department of Employment on appeal admits the inadequacy of the Industrial Commission's notice. It contends, nonetheless, that the case should be remanded for further proceedings. ² It seeks leave, on remand, to attack White's eligibility on three grounds: (1) refusal without good cause to accept available, suitable work when offered; (2) voluntary quit; and (3) misconduct in connection with work.

None of these three defenses finds support in the record below. The Industrial Commission found, as a matter of fact, that when White "was informed by the employer (that) full-time work was available beginning that evening," he

. . . inquired as to whether he could start work the following night. The employer representative, Eileen Camp, who was the payroll clerk and in charge of notifying members of the stand-by crew, said he could report for work the following night as far as she was concerned. However, when Mrs. Camp reported the situation to Edward Shields, the supervisor, it was decided another individual would be offered the permanent job and claimant would be terminated. Mr. Shields orally notified claimant of the decision the following day and two weeks later written notification of the decision was given.

White was offered full-time employment because of his seniority on the stand-by crew. Mrs. Camp testified: "We do this for all our stand-by guys who are good workers and Dan was a good worker." The testimony before the Appeals Examiner indicated that White was, indeed, a good worker; that on one occasion, he had worked a string of 14 straight night shifts; and that he was most anxious to obtain full-time employment. Far from refusing without good cause to accept available and suitable work when offered, White had sought it out and accepted it when offered. In the process, however, he requested permission to begin work one night later because of a long-standing church benefit dinner that he had promised to attend. Mrs. Camp, the only I.F.I....