In Re Thomas

189 S.E.2d 245 (1972) 281 N.C. 598

In the Matter of Geneva H. THOMAS et al.

No. 116.

Supreme Court of North Carolina.

June 16, 1972.

F. Thorns Craven, Jr., Raleigh, Legal Aid Society of Forsyth County, for claimant appellee.

D. G. Ball, Garland D. Crenshaw, Howard G. Doyle, H. D. Harrison, Jr., Raleigh, for appellant.

Moore & Van Allen by William K. Van Allen and R. Michael Childs, Charlotte, for Associated General Contractors of the Carolinas, Associated Industries, Capital Associated Industries, Central Piedmont Industries, North Carolina Textile Manufacturers Association, Piedmont Associated Industries, Western Carolina Industries, Inc., and Western Carolina Manufacturers Association, amici curiae.

HIGGINS, Justice.

Judge Hedrick's opinion, and the partial dissents by Judge Graham and by Chief Judge Mallard, are before us. Judge Graham dissented from the Hedrick opinion "which directs the Commission to enter an order awarding benefits." With respect to the claimant's rights, Judge Graham concluded: "When she quit her job to retire, claimant removed herself from the labor market. Whether she thereafter re-entered the labor market and became `available for work' is a question which still must be determined by the Commission." This is apparently so because of the quantum of proof required.

Chief Judge Mallard concurring in part and dissenting in part, expressed the view the Employment Security Commission's findings and conclusions are correct except in one particular:

"The Commission, however, in its `conclusions of law,' stated the degree of proof it used in finding the facts, as follows: `It must be shown by clear, cogent, and convincing evidence that she (claimant) is available for work under the law. This has not been done in this case.' This was error. The degree of proof required is by the greater weight of the evidence. See G.S. 143-318(1).

"Had the Commission found the facts by the greater weight of the evidence, it is my opinion that its legal conclusions are correct and that claimant `is not realistically an active member of the labor force,' and `(s)he is therefore not available for work and is ineligible for benefits.'"

To what extent Judge Hedrick's opinion is a majority opinion of the panel seems open to some question. It does appear from the separate opinions of Judge Graham and Chief Judge Mallard that an order reversing the superior court and directing that judgment be entered as directed in the opinion is not warranted.

The record before us, in our opinion, discloses the Commission committed error of law in requiring the claimant to show by clear, cogent, and convincing evidence that she had re-entered the labor force after having voluntarily retired. The question before the Commission was whether the claimant at the times covered by her claims for benefits was "available for work" and the burden was on her to show such availability, but only by the greater weight of the evidence. The Commission's requirement, therefore, placed too great a burden on her. As pointed out by Chief Judge Mallard, G.S. § 143-318(1) requires the State agencies and boards charged with the duty of finding facts to observe the rules of evidence "as applied in the superior and district courts." In the superior court, except in extraordinary cases, the burden of proof is by the greater weight of the evidence. Proof beyond a reasonable doubt is confined to criminal offenses. Proof by clear, cogent, and convincing evidence is required to establish parole trusts, contents of lost documents, and such matters. McCorkle v. Beatty, 226 N.C. 338, 38 S.E.2d 102; Williams v. Blue Ridge Building and Loan Assn., 207 N.C. 362, 177 S.E. 176.

After a careful review of the record we conclude that the hearing and decision of the case by the Employment Security Commission and by the Superior Court of Forsyth County were in accordance with law and were free from error save and except the placing of an undue burden on the claimant, Mrs. Thomas, to show by clear, cogent, and convincing evidence that she has become "available for work under the law." The Commission's error, in the quantum of proof required, is directly challenged by Assignment of Error No. 5. Because of the error in so placing too great a burden upon her, the Employment Security Commission will review the proceeding and determine by the greater weight of the evidence whether the claimant has established the fact that she is available for work. The Commission will make disposition of the claims for benefits in accordance with the findings. In re Watson, 273 N.C. 629, 161 S.E.2d 1; Dwyer v. Appeal Board of Michigan Unemp. Comp. Com'n, 321 Mich. 178, 189, 32 N.W.2d 434, 438; Weiner v. Director of Division of Employment Sec., 327 Mass. 360, 99 N.E.2d 57; Mohler v. Department of Labor, 409 Ill. 79, 97 N.E.2d 762. The Commission's findings if supported by competent evidence are conclusive on appeal. In re Steelman, 219 N.C. 306, 13 S.E.2d 544; Unemployment Comp. Com. v. Willis, 219 N.C. 709, 15 S.E.2d 4; Employment Security Comm. v. Hennis Freight Lines, 248 N.C. 496, 103 S.E.2d 829.

The decision of the Court of Appeals, to the extent it conflicts with the disposition herein directed, is reversed and the cause will be remanded to the North Carolina Employment Security Commission for further hearing and disposition as herein directed.

Reversed and remanded.