Blackman v. Industrial Commission of Missouri, Division of Employment Security

491 S.W.2d 18, 1973 Mo. App. LEXIS 1318
CourtMissouri Court of Appeals
DecidedJanuary 30, 1973
DocketNo. 34435
StatusPublished
Cited by7 cases

This text of 491 S.W.2d 18 (Blackman v. Industrial Commission of Missouri, Division of Employment Security) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Blackman v. Industrial Commission of Missouri, Division of Employment Security, 491 S.W.2d 18, 1973 Mo. App. LEXIS 1318 (Mo. Ct. App. 1973).

Opinion

VERNON W. MEYER, Special Judge.

This is an appeal from a decision of the Circuit Court affirming the findings and conclusions of the Industrial Commission of Missouri that appellant is ineligible for unemployment benefits beginning May 17, 1970, and is disqualified from further benefits until she has earned wages after June 12, 1970, equal to ten times her weekly benefit amount.

In August, 1967, appellant was employed by Chevrolet, St. Louis Shell Division of General Motors Corporation, (hereinafter called Chevrolet-Shell) as a clerk-typist, at a salary of $498.23 per month for a nine-hour day, six days per week. Prior to working there, she was employed as a clerk-typist at General Electric (no rate of pay given) from 1959 to 1963 and at Nixon and Associates, as a secretary (no rate of pay given) from 1963 to 1965. She was laid off by Chevrolet-Shell on February 27, 1970, at which time her salary was $613.00 per month, for an eight-hour day, five days per week.

Appellant filed her initial claim under the Missouri Employment Security Law effective March 1, 1970. She was administratively determined ineligible by a deputy for benefits beginning May 17, 1970, on the grounds that she was unavailable for work. She appealed from that determination on June 16, 1970. She was also administratively disqualified by a deputy from benefits after June 12, 1970, on the grounds that she had failed without good cause to apply for available suitable work at Schnuck’s Market when so directed by the Missouri Division of Employment Security (hereinafter called the Division) on June 12, 1970. She appealed from that determination on June 23, 1970.

Both appeals were heard contemporaneously by an Appeals Tribunal (Referee) on August 6, 1970. Appellant was not represented by counsel. From the decision rendered by the Referee on August 14, 1970 appellant filed an Application for Review on August 24, 1970.

On October 7, 1970 the Industrial Commission issued an order remanding the matter to the Appeals Tribunal with directions to “[h]old a hearing so that claimant will have an opportunity to offer competent evidence bearing on her eligibility for benefits, as requested in the Application for Review. Thereafter, the transcript of the evidence received at such hearing to be forwarded to the Commission.”

As a result of such order of remand, a hearing was held on October 27, 1970, at which time appellant was represented by counsel.

A Division representative testified that for eight years she had been employed by the Division as an E. S. Technician. Her duties were to take orders from employers as they came in and to select applications either from the applicants coming in or from the file and refer them to jobs, to help both the applicant and the employer. She further testified that she had become familiar with wages, hours and working conditions in various occupations and industry in the St. Louis Area; that the prevailing starting rate for clerk-typists was $80 to $100 per week; that in her office the starting range for clerk-typists was $369.00; that in industry the prevailing rate was $80 to $100.

Appellant testified that when she first applied for benefits a woman at the Division told her she was going to bring her down to the prevailing salary. Appellant replied that she would accept a job at $560.00. She further testified she refused about seven jobs because in each instance the salary was too low, varying from $300.00 to $425.00 per month, or the hours too long. At the second hearing before the referee on the remand order appellant testified she told the Division representative she would not refuse any offer she thought [21]*21was promising, that had a future, at $500.-00, $525.00, but that the representative did not put this down.

There was a variance in the testimony regarding the position at Schnuck’s Market. A Division representative testified that the position available was clerk-typist in the personnel department with a salary range of $95.00 to $100.00 per week or possibly more, depending on experience. This was to have been discussed with the applicant. The hours were from eight to four, Monday through Friday. Applicant testified she was told by a Division representative that the position available was inventory control clerk with a straight salary of $95.00 per week.

Appellant further testified there were two job classifications at Chevrolet-Shell, stenographer and clerk-typist and that she was hired as a clerk-typist. At no time did she testify that during her two and one-half years of employment with Chevrolet-Shell her job classification was changed to that of stenographer.

At the second hearing before the Referee, appellant’s attorney read into the record, the results of a wage survey prepared by Associated Industries of Missouri in June of 1970 which listed the minimum salary for senior clerks as $477.00 per month and the maximum as $648.00 per month. The average monthly salary for senior clerks in a manufacturing concern was $542.00 per month. In response to inquiry by counsel, appellant testified that she would definitely be classified as a senior clerk or secretary; this in spite of the fact that she testified that her shorthand was not very good, about forty words a minute, and that of the two possible classifications at Chevrolet-Shell (clerk-typist or stenographer) she was classified in the lower of the two.

Thereafter, on March 12, 1971 the Industrial Commission found the claimant to be ineligible for benefits beginning May 17, 1970, and disqualified for benefits until she has earned wages after June 12, 1970, equal to ten times her weekly benefit amount and adopted and affirmed the findings and decision of the Appeals Tribunal rendered on August 14, 1970 as set out below :

“The claimant has worked as a clerk-typist for a number of years. She was last so employed at a wage of $613 a month. She was laid off on February 27, 1970.
“The claimant testified that she was able to work and that she had looked for work, but that she would not accept a starting wage less than $560 a month. The starting rate for clerk-typists in the area in which the claimant lives ranges from $80 to $100 a week.
“On June 12, 1970, an employment deputy for the Division directed the claimant to apply for available work as a clerk-typist at a starting rate from $95 to $100 per week, depending upon experience. The claimant refused to apply as directed.
“The Missouri Employment Security Law provides that to be eligible for benefits a claimant must be able to work and available for work, and that no person shall be deemed available for work unless he has been and is actively and earnestly seeking work. The Law also provides that a claimant shall be disqualified for waiting week credit or benefits until after he has earned wages equal to ten times his weekly benefit amount if he has failed without good cause to apply for available suitable work when so directed by a deputy.
“A claimant who is unwilling to accept work at the prevailing starting rate is not actively and earnestly seeking work and is not available for work. According to the evidence this claimant has been unemployed since February 27, 1970. She is demanding a minimum rate of $560 a month, which is substantially above the prevailing starting rate for clerk-typists. The Referee therefore finds that the claimant has not been available for work.
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Cite This Page — Counsel Stack

Bluebook (online)
491 S.W.2d 18, 1973 Mo. App. LEXIS 1318, Counsel Stack Legal Research, https://law.counselstack.com/opinion/blackman-v-industrial-commission-of-missouri-division-of-employment-moctapp-1973.