Guillard v. Department of Employment

603 P.2d 981, 100 Idaho 647, 1979 Ida. LEXIS 519

• Court: Idaho Supreme Court
• Decided: November 28, 1979
• Docket: 12695
• Status: Published

Opinions

BAKES, Justice.

The appellant Guillard, became unemployed on October 5, 1976, when her employer closed down its Emmett plant. At that time Guillard had over 14 years of experience in cost accounting and general business; she was then earning $4.25 an hour. Guillard promptly applied for unemployment insurance benefits. She was found qualified and received benefits until she was determined to be ineligible by a claims examiner for the Department of Employment, effective February 6,1977, on the basis that she had failed to accept suitable work, be available for work, or to seek work.

Guillará appealed these determinations and a hearing was held. The appeals examiner for the Department reversed that portion of the earlier decision by the claims examiner that Guillará had refused suitable work. He affirmed the decision that she was not available for work or seeking work, doing so on the basis that Guillará was only seeking jobs in the the fields of accounting or general business and was confining her search to jobs in the Emmett area which paid at least $4.25 an hour. Guillará gave family responsibilities and added travel expense as reasons for so limiting her job search. During this time, Guillará had found , and accepted two part time jobs in the Emmett area paying hourly rates of $4.25 and $4.95.

Guillará sought review by the Industrial Commission and another hearing was held before a referee. The Commission adopted the findings of the referee, concluding that Guillará, by restricting her search to positions in the accounting-clerical field paying at least $4.00 per hour in the Emmett area had “effectively and substantially reduced her likelihood for employment and, by such restrictions, claimant [was] not ‘available’ for work within the meaning of the Employment Security Law.” I.C. § 72-1366(d). Guillará then appealed to this Court.

Approximately one month after the Commission’s decision, Guillará found and accepted an accounting job in the Emmett area which paid $3.88 per hour.

Appellant raises two issues on appeal. The first issue deals with the procedural administration of the Employment Security Law, and the second issue concerns the merits of the controversy.

I

Appellant first maintains that the provisions of the Idaho Administrative Procedure Act regarding evidentiary rules in contested cases are applicable to hearings before the Department of Employment and the Industrial Commission.¹ Because of this, appellant argues, the appeals examiner and the Commission erred in admitting certain exhibits without requiring the Department to properly identify, lay a foundation for, show the relevancy of, and offer with an opportunity to object to, each and all of the exhibits offered as evidence.

Before we embark on an extended and undoubtedly unnecessary discussion regarding the applicability of the Administrative Procedure Act to unemployment compensation proceedings, we note that traditionally this Court has not required the Industrial Commission to adhere to strict rules of procedure and evidence in its hearings. Hagadone v. Kirkpatrick, 66 Idaho 55, 154 P.2d 181 (1944); Thom v. Callahan, 97 Idaho 151, 540 P.2d 1330 (1975). In Thom, a workmen’s compensation case, we stated:

“[T]his Court has recently made clear the emerging trend in our case law freeing the Industrial Commission from a strict observance of rules of evidence as govern courts of law. We have held that in those areas where the Commission possesses particular expertise, it has the discretionary power to consider reliable, trustworthy evidence having probative value in reaching its decisions, . even if such evidence would not be ordinarily admissible in a court of law.” 97 Idaho at 154, 540 P.2d at 1333.

The Thom case was decided long after the passage of the Administrative Procedure Act,² although the Court did not discuss its applicability at that time. Ironically, this more liberal approach to evidentiary rules in administrative cases is supported by the very APA section upon which appellant so heavily relies. I.C. § 67-5210 reads in pertinent part:

“67-5210. RULES OF EVIDENCE-OFFICIAL NOTICE. — In contested cases:

“(1) irrelevant, immaterial, or unduly repetitious evidence shall be excluded. The rules of evidence as applied in non-jury civil cases in the district courts of this state shall be followed. When necessary to ascertain facts not reasonably susceptible of proof under those rules, evidence not admissible thereunder may be admitted, except where precluded by statute, if it is of a type commonly relied upon by reasonably prudent men in the conduct of their affairs. . . .” (Emphasis added).

The above language on its face eschews any notions of strict evidentiary criteria.

The above quoted section has an interesting history. The 1961 Revised Model State Administrative Procedure Act proposed only that the rules of evidence applicable in non-jury civil cases should be followed in state agency contested cases.³ Idaho does not have a distinctly identifiable body of evidentiary rules applicable only in non-jury civil cases. Apparently, few, if any, other jurisdictions have any such rules, and thus most state legislators declined to adopt the standard set forth in the model act. Gellhorn, Rules of Evidence & Official Notice in Formal Administrative Hearings, 1971 Duke L.J. 1, 12. The 1970 version of the model state act continued to propose this possibly non-existent standard, but added the emphasized sentence in the above quoted Idaho statute.⁴ Such a change evinces an intent on the part of the drafters of the model act and the Idaho legislature to liberalize technical rules of admissibility in administrative adjudications.

Although Idaho has no discernible evidentiary rules applicable in non-jury civil cases, it is clear that the rules in non-jury cases regarding admission of evidence are more liberal than in jury cases. G. Bell, Handbook of Evidence for the Idaho Lawyer 14 (1972). For example, this Court will not reverse a trial court in a non-jury case on the basis of an erroneous admission of evidence unless it appears that the opposing party was misled or surprised in a substantial part of its case, or that the trial court materially relied on the erroneously admitted evidence. Duthweiler v. Hansen, 54 Idaho 46, 28 P.2d 210 (1933). In trials before the court, it is presumed that the trial court did not consider incompetent or inadmissible evidence in making its findings. Isaacson v. Obendorf, 99 Idaho 304, 581 P.2d 350 (1978); Shrum v. Wakimoto, 70 Idaho 252, 215 P.2d 991 (1950). Therefore, even if the above APA provision was applicable to hearings involving the Department of Employment, the administrative tribunal would not be required to strictly adhere to formal and technical rules of evidence.

However, we need not decide this case on the basis of the applicability of the above quoted provision of the Administrative Procedure Act regarding evidentiary rules in contested cases, or on the subtle •distinctions between evidentiary rules in jury and non-jury civil trials, or on the general historical informality of proceedings before the Industrial Commission. Unemployment compensation procedures are governed by I.C. § 72-1368. That section was passed long before the passage of the Administrative Procedure Act and has been amended since such time without substantial change to the portion of the statute in question. Idaho Code § 72-1368 specifically delineates departmental procedure. A specific statute controls over a more general statute when there is any conflict. Swisher v. State Department of Environmental and Community Services, 98 Idaho 565, 569 P.2d 910 (1977).

The claimant did not object when the exhibits ' in question were introduced into the record by the appeals examiner. Thereafter, the referee and the Industrial Commission were required by I.C. § 72-1368(g) to include such exhibits as part of the record of the proceedings before the Commission. “The record of the proceedings before the appeals examiner shall become part of the record of the proceedings on a claim for review before the board with respect to the evidence admitted into testimony received before the appeals examiner, . ” I.C. § 72-1368(g). Since the provision of the Employment Security Act is specific and not found in the APA, it is controlling. The Commission did not err in including the exhibits in the record in the first instance.

Subsequent to the decision of the Industrial Commission, appellant moved to strike any and all reference to exhibits 1 through 13 on essentially the same grounds as are raised on appeal. In denying the motion, the Commission stated:

“That though the Appeals Examiner failed to properly individually identify and offer the exhibits and though there may not be strict adherence to the Administrative Procedures Act and the Department’s own rules, there is no surprise. The claimant was put on notice that these documents were made exhibits and were in fact part of the record before the Appeals Examiner and she was made aware that these documents were to be considered by the Finder of Fact.”

We agree with the Commission’s decision. The appellant has failed to show that she was prejudiced by the admission of the exhibits in question. There is absolutely no indication that the appeals examiner or the Industrial Commission relied to any extent on the exhibits. To the contrary, it appears that the Commission relied exclusively on the claimant’s statements made at the hearings on the record.⁵ Moreover, the exhibits in question consist of forms and documents routinely found in a claimant’s administrative file. The exhibits include a claim for benefits, a determination of eligibility, summary of interviews, determinations, a request for redetermination, a notice of hearing, and other documents relating to the history of claimant’s dealings with the Department of Employment. As such the exhibits are much more akin to pleadings than to evidentiary documents. These types of documents provide necessary procedural background information to appeals examiners in furtherance of efficient administration of unemployment compensation appeals.

The appellant bears the burden of showing prejudicial error on appeal. Rogers v. Trim House, 99 Idaho 746, 588 P.2d 945 (1979). See Hudson v. Hecla Mining Co., 86 Idaho 447, 387 P.2d 893 (1963); Norman v. Employment Security Agency, 83 Idaho 1, 356 P.2d 913 (1960). In support of her allegation of prejudice, appellant points to the fact that she was disallowed benefits when she allegedly should have been found eligible. If an error could be shown to be prejudicial merely on the basis of adverse result, the concept of harmless error would disappear from appellate review. Appellant also argues that the appeals examiner failed to follow departmental rules and regulations in admitting the exhibits in question. In view of our conclusion that such an error, if any, was harmless and not prejudicial, it is unnecessary to discuss this question. Similarly, appellant’s contention that the record fails to disclose whether the appeals examiner considered any state memoranda or data is without merit. See I.C. § 67 — 5209(e)(7). Appellant has failed to show whether any such material even exists; certainly, she has failed to show prejudicial error.

II

Appellant next complains that the Industrial Commission erred in concluding that appellant’s self imposed restrictions on her job-seeking efforts rendered her unavailable for suitable work within the meaning of I.C. § 72-1366(d).

This Court has consistently held that “[t]o meet the availability requirements of the statute, the claimant must show that he is able, ready, and willing to accept, and is seeking, suitable work at a point where an available labor market exists.” Ellis v. Employment Security Agency, 83 Idaho 95, 98, 358 P.2d 396, 397 (1961). Accord, Eytchison v. Employment Security Agency, 77 Idaho 448, 294 P.2d 593 (1956); Claim of Sapp, 75 Idaho 65, 266 P.2d 1027 (1954). Similarly, “[a]vailability for work requires no more than availability for suitable work which the claimant has no good cause for refusing.” Johnson v. Employment Security Agency, 81 Idaho 560, 563, 347 P.2d 764, 766 (1959).

However, “[a] claimant may render himself unavailable for work by imposing conditions and limitations as to employment, so as to bar his recovery of unemployment compensation, since a willingness to be employed conditionally does not necessarily meet the test of availability.” Ellis v. Employment Security Agency, 83 Idaho at 99, 358 P.2d at 397-98.

The Employment Security Law provides guidance in determining whether a claimant is available for suitable work.

“72-1366. PERSONAL ELIGIBILITY CONDITIONS.—

“(g) In determining for the purposes of this act, whether or not work is suitable for an individual, the degree of risk involved to his health, safety, morals, his physical fitness, experience, training, past earnings, length of unemployment and prospects for obtaining local employment in his customary occupation, the distance of the work from his residence, and other pertinent factors shall be considered. No employment shall, in any event, be deemed suitable and benefits shall not be denied to any otherwise eligible individual for refusing to accept new work or to hold himself available for work under any of the following conditions:

“(2) If the wages, hours, or other conditions of work offered are substantially less favorable to the individual than those prevailing for similar work in the locality of the work offered; . . . ”

The Commission’s decision adequately took the above factors into account. First, the Commission properly considered the length of time during which claimant had been unemployed. As of the time of the Commission’s decision, appellant had been out of work for eight months. A claimant may be required to lower his sights in his efforts to seek employment as the period of unemployment increases. See Annot., 97 A.L.R.2d 1125, 1133 (1964). The consideration of this factor cuts both ways, of course. “Work which may be deemed ‘unsuitable’ at the inception of claimant’s unemployment, and for a reasonable time thereafter, because it pays less than his prior earning capacity, may thereafter become ‘suitable’ work when consideration is given to the length of unemployment and the prospects for obtaining customary work at his prior earning capacity.” Bayly Mfg. Co. v. Department of Employment, 155 Colo. 433, 395 P.2d 216, 220 (1964). Therefore, a claimant must expand the scope of his search as time goes by.

The second factor which the Commission considered was the appellant’s self imposed limitation on the acceptability of earnings. Appellate courts have frequently confronted the issue of whether offered wages are “substantially less favorable” than prior earnings, I.C. § 72-1366(gX2), to the extent that offered work is rendered unsuitable to the individual claimant. Cf. Hagadone v. Kirkpatrick, 66 Idaho 55, 154 P.2d 181 (1944) (agency decision that claimant was unavailable for work based on his rejection of two positions with an attendant decrease in pay of well over 50% reversed and remanded for reconsideration); Scott v. Photo Center, Inc., 306 Minn. 535, 235 N.W.2d 616 (1975) (25% reduction in pay constitutes good cause for quitting employment); Johns-Manville Prod. Corp. v. Board of Review, 122 N.J.Super. 366, 300 A.2d 572 (1973) (25% reduction in wages held to be “substantial” and therefore good cause for quitting); Green v. Republic Steel Corp., 37 N.Y.2d 554, 376 N.Y.S.2d 75, 338 N.E.2d 594 (1975) (offer of work at less skilled job at 15% reduction in pay held unsuitable); Bus v. Bethlehem Steel Corp., 37 A.D.2d 98, 322 N.Y.S.2d 310, aff’d, 32 N.Y.2d 955, 347 N.Y.S.2d 206, 300 N.E.2d 736 (1973) (15% reduction in pay did not, by itself, render offered work unsuitable); Pennington v. Dudley, 10 Ohio St.2d 90, 226 N.E.2d 738 (1967) (15% reduction in pay for offered work does not require conclusion, as a matter of law, that offered work was unsuitable); Shay v. Unemployment Compensation Board of Review, 424 Pa. 287, 227 A.2d 174 (1967) (30% reduction in pay was substantial and rendered offered work unsuitable); Unemployment Compensation Board of Review v. W. R. Grace Co., 23 Pa.Cmwlth. 237, 351 A.2d 297 (1976) (reduction in hourly wage from $4.25 to $3.85 does not render offered employment unsuitable); Donnelly v. Commonwealth, Unemployment Compensation Board of Review, 17 Pa.Cmwlth. 548, 330 A.2d 544 (1975) (reduction in pay of over 20% for offered work held to be suitable after three and a half month period of unemployment); In re Potvin, 132 Vt. 14, 313 A.2d 25 (1973) (offered work requiring less skill at 40% reduction in pay held unsuitable even after seven month unemployment period). Clearly, we cannot state that a given percentage reduction in pay would or would not render prospective employment unsuitable. The administrative tribunal must consider any wage restriction set by the claimant along with all the other factors relevant to the issue of availability for suitable work. We merely note that Guillard would not accept a reduction in pay in excess of 6% of her prior earnings. After a lengthy period of unemployment, the Commission was entitled to conclude that such a self imposed restriction operated in favor of ineligibility. It should also be noted that appellant did obtain employment at an hourly wage of $3.88 soon after the Commission’s decision.

The third factor upon which the Commission relied was appellant’s refusal to expand the scope of her job search outside of the Emmett area. The record does not indicate the extent and nature of the labor market in Emmett. One logical inference after eight months of unemployment is that the Emmett labor market was insufficient to support appellant’s job search with its self imposed limitations. At any rate, the burden of establishing eligibility for unemployment compensation benefits is on the claimant whenever the claim is questioned.⁶ E. g., Rogers v. Trim House, 99 Idaho 746, 588 P.2d 945 (1979); Pyeatt v. Idaho State University, 98 Idaho 424, 565 P.2d 1381 (1977); Flynn v. Amfac Foods, Inc., 97 Idaho 768, 554 P.2d 946 (1976). The claimant must show that in spite of her restrictions she remained attached to the labor market. Although in some circumstances the distance from residence to job market might support such a limitation, see Johnson v. Employment Security Agency, 81 Idaho 560, 347 P.2d 764 (1959), this is not true when the geographical restriction is accompanied by the other restrictions present here. Johnson dealt with the claim of a 68 year old Coeur d’Alene man who had turned down a job in Spokane, Washington. The offered work was not only 34 miles away, but also required an 11-hour day and was so physically demanding that the employer’s foreman had told the claimant that he didn’t think the claimant could handle it. Johnson is therefore distinguishable.

We find it unnecessary to state whether any one of the above factors considered by the Commission would by itself suffice to render a claimant ineligible for unemployment compensation. We conclude only that the Industrial Commission was entitled to consider the above factors and properly did so. In our opinion, the facts afford ample basis for the Commission’s determination. They do not, as Guillard contends, establish as a matter of law that in spite of her self imposed restrictions, appellant nonetheless remained available for suitable work. We are constitutionally compelled to defer to the findings of the Industrial Commission when supported by substantial and competent evidence. Idaho Const, art. 5, § 9; Simmons v. Department of Employment, 99 Idaho 290, 581 P.2d 336 (1978); Booth v. City of Burley, 99 Idaho 229, 580 P.2d 75 (1978).

The decision of the Industrial Commission is hereby affirmed.

DONALDSON, C. J., SHEPARD, J., and SCOGGIN, J. Pro Tem., concur.

1 . The Idaho Administrative Procedure Act is compiled in I.C. § 67-5201 et seq. I.C. § 67-5201 provides in part:

“67-5201. DEFINITIONS. — As used in this act:

“(1) ‘agency’ means each state board, commission, department or officer authorized by law to make rules or to determine contested cases, except those in the legislative or judicial branch, the state militia and the state board of corrections;

“(2) ‘contested case’ means a proceeding, including but not restricted to ratemaking and licensing, in which the legal rights, duties, or privileges of a party are required by law to be determined by an agency after an opportunity for hearing;

Rules of procedure and evidence in contested cases are set forth in I.C. §§ 67-5209 and -5210, respectively.

2 . The Idaho Administrative Procedure Act was passed in 1965.

3 . Revised Model State Administrative Procedure Act § 10(1) (1961).

4 .Revised Model State Administrative Procedure Act § 10(1) (1970).

5 . In one instance, where there was a conflict between the exhibits and the testimony given by appellant, the Commission apparently resolved the conflict in appellant’s favor. In a summary of an interview dated February 14, 1977, and apparently signed by appellant, she states that she will not accept a position at an hourly wage of less than $4.25. She subsequently testified that $4.00 per hour was the lower limit. The Commission, in its findings, accepted the lower figure.

6 . During oral argument, there was some discussion regarding whether the Court should carve out an exception to this long established allocation of burden of proof. It was the first time the question was raised. We have consistently held that we will not consider new grounds for reversal raised for the first time on appeal. Unigard Ins. Group v. Royal Globe Ins. Co., 100 Idaho 123, 594 P.2d 633 (1979); Local 1494, Int’l Ass’n of Firefíghters v. City of Coeur d’Alene, 99 Idaho 630, 586 P.2d 1346 (1978); Clark v. Int’l Harvester Co., 99 Idaho 326, 581 P.2d 784 (1978); Dunn v. Baugh, 95 Idaho 236, 506 P.2d 463 (1973).