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08/16/83 ALBERT D. SMITH v. LABOR AND INDUSTRIAL

August 16, 1983

ALBERT D. SMITH, PETITIONER-APPELLANT,
v.
LABOR AND INDUSTRIAL RELATIONS COMMISSION OF MISSOURI, MISSOURI DIVISION OF EMPLOYMENT SECURITY, AND FOUNDATION BUILDING COMPANY, RESPONDENTS.



From the Circuit Court of Cole County; Civil Appeal; Judge James F. McHenry; Reversed and Remanded With Instructions

Before Wasserstrom, P.j., Kennedy, Nugent, JJ.

The opinion of the court was delivered by: Wasserstrom

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 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: "We have a job for this man. He won't come to work."

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: "I did not contact Geo. Dusselier, he is my last employer; When I first filed for unemployment benefits I was working for Geo. Dusselier. I was laid off-and did not go back. I received two (2) checks. Geo. Dusselier appealed. It was found in my favor. I will take any work form any employer except Geo. Dusselier. I will take any work from any previous employer except Geo. Dusselier."

On October 29, 1981, a deputy of the Missouri Division ruled that Smith was disqualified to receive any further benefits for the following reason: "The claimant refused without good cause an offer of work with his former employer for reasons unknown to the deputy. The work offered was suitable." Smith then duly appealed from that ruling, stating as his reason: "I don't believe 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: "Mr. Dusellier would never tell anyone he's laid off. He'd just say, we didn't have no work here at present, and it--it went on and on for weeks and I decided well, he's got no work, I'm gonna apply for unemployment benefits." 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: "irst of all, I didn't believe he had work; secondly, that I had appealed it for the same reason, through Kansas, and the claims--or the Examiner of Kansas said that through my appeal that I left work without good cause and if he turned around and offered me work, I wouldn't have to accept it. And so that was the reason through Missouri, why I didn't--I just put that down on the form letter." 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 individual, Terry Shauncoursey, he was still employed for George Dusellier and wasn't working at the time.

Q. Who?

A. Terry Shauncoursey. He was still employed for George Dusellier 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 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. ...


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