Mandes v. Employment SEC. Agency , 74 Idaho 23 ( 1953 )

GIVENS, Justice.

Appellant was discharged by the Sidney Mining Company, his then employer, September 29, 1950, for reputed refusal to continue the operation of an auxiliary hoist near the internal end of a 1600-foot tunnel servicing upper levels.

Initial claim was filed October 10, 1950,. and renewed July 3, 1951. The claim was first denied by the Claims Examiner and. after a hearing October 18, 1951, before Appeals Examiner, W. Clyde Williams, was denied by him November 1, 1951, which was on appeal affirmed by the Industrial Accident Board August 1, 1952, with the present ■consequent appeal therefrom.

The Employment Security Agency urges findings of the Industrial Accident Board, the administrative agency implementing the Employment Security law, will not be disturbed on appeal unless there is such an entire absence of évidence as renders the findings of the Board unreasonable. However, when the Board does not hear and see the witnesses, the findings of such tribunal are not binding on this Court. Phipps v. Boise Street Car Co., 61 Idaho 740, at page 747, 107 P.2d 148.

Section 72-1366(f) I.C., provides as one of the personal eligibility conditions for securing unemployment compensation that—

“His unemployment is not due to the fact * * * or that he was discharged for misconduct in connection with his employment; * *

The Appeals Examiner, in his carefully prepared decision, quotes from 48 Am.Jur. 541-542, Section 38, the definition of Misconduct Precluding Payment of Unemployment Insurance, thus:

“Misconduct within the meaning of an unemployment compensation act excluding from its benefits an employee discharged for misconduct must be an act of wanton or wilZful disregard of the employer’s interest, a deliberate violation of the employer’s rules, a disregard of standards of behavior which the employer has the right to expect of his employee, or negligence in such degree or recurrence as to manifest culpability, wrongful intent, or evil design, or show an intentional and substantial disregard of the employer’s interest or of the employee’s duties and obligations to the employer. * *

This conception of misconduct with relation to the unemployment compensation statute seems to be supported by authorities and consonant with the dictionary definitions insofar as they are applicable. Merkle v. Review Board of Indiana Employment Security Division, 120 Ind.App. 108, 90 N.E. 2d 524; 146 A.L.R. 243 ; 58 C.J.S., Misconduct, page 817.

Appellant for many years had worked as a miner in various capacities and it is conceded he was suffering from silicosis, Grade II, at the time of his discharge and had been advised it would be unwise for him to continue underground employment. Therefore, he had not been immediately required to work as a miner underground, but had been given employment above ground outside the mine demolishing obsolete buildings, and with the consent and acquiescence of the employer, was living m one of the abandoned buildings and thus in effect was in the nature of a watchman or caretaker, though not employed as such.

' His various duties and activities immediately prior to the day of his discharge, and to some extent coincidental therewith, were thus summarized by Malcolm Brown, General Superintendent of the Company:

“In other words he probably had two or three primary duties. One was the starting of this pump and one was the security watch and then to complete his work or to keep him busy during the day he worked on the dismantling of the buildings, etc.”

The attendant at the particular hoist involved had suffered burns shortly prior to appellant’s discharge, which necessitated someone else operating the hoist. Mr. Ed Cole, the Company foreman, testified in substance that he told appellant tO' temporarily operate this hoist until the regular man recovered from his injury and returned to work; that on the day in question, either during the latter part of the lunch hour or immediately after the lunch period, Cole found appellant absent from the hoist and when he requested appellant to return to the hoist and continue its operation, appellant refused to do so without giving any reason; whereupon Cole, after futile attempts to persuade appellant to continue at the hoist, called in the shifter to take over the operation of the hoist the remainder of the day and discharged appellant, telling him to get his time in the morning.

While appellant’s testimony is not altogether clear, it indicates uncertainty on his part as to whether he was to operate the hoist continuously and regularly throughout each day, or merely to take the two or four men to their work on the upper levels, above where the hoist mechanism was situated and where the operator had to be in operating the hoist. Appellant testified that material was taken up not by him, but by the shifter. He also testified he told Cole he was not supposed to work underground, although he did not specifically state he told Cole of his silicotic condition.

A letter to appellant under date of October 15, 1951, from Dr. H. E. Bonebrake, stated in part: “After your hospitalization in 1945, you were told that it would be unwise for you to continue underground employment.” Dr. Robert E. Staley in a letter dated the next day, stated with regard to appellant: “To Whom It May Concern X-ray films taken 9/30/50 reveal Silicosis. Grade II. He has been refused underground employment.”

Appellant testified respondent employer knew of his silicotic condition. Mr. Brown, stated, with regard to whether he had any knowledge of any written record of appellant’s condition, as follows:

“A. * * * If there was a slip from the doctor, I don’t recall it, however, it would only be fair to state that there might have been and been lost because this file system we really only got going very carefully with that along in 1946 so its possible there might have been some such thing and it was lost.

"Q. But you haven’t any recollection, Mr. Brown, have you, of ever having any information that he was not to work underground?

“A. No, I have no recollection of such a thing.”

Elsewhere Brown stated with regard to appellant’s physical condition in 1945 and his inability to work underground:

“A. * * * I checked up and we don’t have any pre-employment physical. We were quite sloppy about that back at that time.”

It is apparent, however, that the employer acted upon some such information or some understanding, because appellant was not employed underground after 1945 and was employed above ground and the employer insists that appellant’s operation of the hoist was only of a temporary nature. In other words, he would only have to be underground at the hoist for a short period of time.

There are statutes which bar recovery of unemployment compensation after an employee had been discharged for wilful misconduct. While the word “wilful” does mot appear in our statutes, the term “mis•conduct” as defined in connection with the unemployment compensation statute connotes intentional action on the part of the •employee and the only authorities called to our attention and which we have been ■able to find upon the matter, indicate that mere absenteeism, unless chronic and continued, does not constitute wilful misconduct. Merkle v. Review Board of Indiana Employment Security Division, supra.

Appellant’s evidence is persuasively pertinent wherein he testified with regard to the instructions given him by Mr. Brown, Mr. Cole and the shifter and the work he was doing and told to do, as follows:

“Q. Then on the day that you were discharged, September 29, did Mr. Cole ask you why you were not in at the hoist? A. Yeah.

“Q. What did you reply? A. I told him Mr. Brown told me to tear his roof down.

“Q. When did Mr. Brown tell you to tear the roof down? A. Oh, I don’t know. New days back. Week or so. I been working all the time.

'Q. Who did you look to, Christ, as your immediate supervisor, the shift boss, Mr. Brown or Mr. Cole or didn’t you look to anybody as your boss ? A. I don’t know. I guess everybody boss me.

"Q. Well, who did you look to for your orders? A. Mr. Brown mostly.

“Q. You looked directly to Mr. Brown for your orders? A. I took orders from him most of the time.

“Q. And anything Mr. Cole might have said to you you disregarded? A. Oh, no, he come outside once in a while.

“Q. Then when he asked you about the operation of this hoist you told him that you wouldn’t do it, you weren’t going underground? A. Yeah, I told him I not belongs underground because the shifter already told me to take my bucket inside and stay steady.

“Q. The shifter told you that? A. Yes, so I can see, you know, they figured to put me inside steady.

“Q. He didn’t tell you that it was just a temporary deal until the burned hoistman returned or the regular hoist-man returned? A. No. I asked the shifter what you mean by take my bucket. ‘Well’, he said, ‘That’s Mr. Cole’s orders. Don’t blame me for it.’

“Q. You told the shifter you weren’t going to go underground then when Mr. Cole saw you outside you told him the same things, is that right? A. Yes.

“Q. Did you tell them why? A. Yes, I told them why, because I don’t belongs underground. I can’t go underground.

“Q. Did you tell them why you couldn’t go underground anymore ? A. Yeah, I told them.”

Appellant’s ensuing testimony describes the smoky and dusty condition at the hoist due to blasting and clearly indicated he considered it was injurious to his health to stay in this tunnel all the time.

Evidence on behalf of the employer waste the effect there was ventilation at this place, though the smoke and dust from the blasting, in escaping, was wafted past the hoist through the tunnel where the hoist was located.

Upon appellant’s discharge, Mr. Cole immediately had a shifter come in and take over the operation of the hoist. No emergency condition existed or was shown to-exist. There was no disruption of work in the mine. Conceding the safe operation of the mine required constant attendance at this hoist, appellant’s absence was for a very short period and he was easily and immediately replaced.

The statute is to be liberally construed in favor of the employee. In re Potlatch Forests, Inc., 72 Idaho 291, at page 298, 240 P.2d 242.

Whether or not appellant was mistaken in thinking he was 'being permanently placed at the hoist inside the mine, the directions as he received them, or as he understood them, as given by Cole and the shifter were somewhat conflicting and confusing. He was not recalcitrant or capricious in his refusal to return to the hoist, but apparently was justifiably concerned about his health, knowing he had an incurable condition which, though perhaps not aggravated by the smoke and dust, was at least irritated thereby. Therefore, there is absent any element of wilfulness, essential to constitute misconduct.

These circumstances do not justify a finding of fact or conclusion that appellant, in not returning to the hoist, was guilty of misconduct within the meaning of the statute. Boynton Cab Co. v. Neubeck, 237 Wis. 249, 296 N.W. 636; Boynton Cab. Co. v. Schroeder, 237 Wis. 264, 296 N.W. 642.

The Order denying compensation, therefore, is reversed and the cause remanded for appropriate proceedings in accordance with the conclusions herein stated.

Costs to appellant.

PORTER, C. J., and THOMAS, J., concur.