White v. Idaho Forest Industries, 12487

• Court: United States State Supreme Court of Idaho
• Writing for the Court: BISTLINE; McFADDEN
• 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.
• Docket Number: No. 12487,12487
• Decision Date: 28 December 1977

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.

[98 Idaho 785]

Page 888

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 [98 Idaho 786]

Page 889

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...