*2 THOMAS, C.J., ROSE, 1, 1982, Before ROO- July, July until 1982. On or about NEY, CARDINE, Waines, Bryant employee, BROWN JJ. Bill and a fellow According in an altercation. were involved
BROWN, Justice. reports” prepared by the “incident Ca- personnel, Waines his thedral Home lost (ESC) disqualified temper “grabbed” Bryant. Bryant appellee Paul assault, as an Kruger Bryant from certain The/ characterizes the encounter benefits. Appellee appellee attempts inject 1. same in their briefs. contends In his brief into matters appeal appeal following did not ESC Cathedral Home issue: that the Cathedral Home Perhaps decision district court. it was Supreme jurisdiction Court "Does have event, any satisfied with the ESC decision. Appellant where the ex- over a matter never participated in the review the Cathedral Home appeal rights hausted the because it failed to the district court and defended ESC deci- petition Court to the District for review of the correct, doubt, appellee If which we sion. it, against and was decision never added as appeal dismissal the Cathedral Home would appeal party herein?" only appellant. So far as we can eliminate one significance objection. see the of this We do not tell, change any nor it the issue be of appeal the ESC and Cathedral Home Both advantage appellee. district court decision of the and address 20, 1984, July character- On appeals examiner’s ESC filed a notice while “physical confrontation.” of the district court’s decision ization was Wyoming Supreme Court. On the regained that which he had After Waines day, same the Cathedral Home filed a sim- lost, to-wit, apolo- temper, he previously appeal. ilar notice of Bryant his behavior. gized to complaint against Waines filed a criminal to, pled guilty or was and the latter either *3 I of, guilty and fined $5. found an assault appellants, Both the Cathedral Home and incident with Immediately after the ESC, speculate the that the district court
Waines,
site. He
Bryant
left the work
may
by
have been
Bryant’s
influenced
writ-
minutes
a hand-
returned in about 90
with
ten
appearing
statements and/or letters
resignation. Bryant filed
written letter of
record,
not
but
introduced into evidence
follow-
unemployment
a claim for
benefits
by
appeals
nor noticed
examiner or the
separation
from the Cathedral
Appellee
ESC.
contends that the decisions
1983,
10,
from
deputy
March
Home. On
appeals
examiner
the ESC were
disqual-
determination which
ESC issued a
incompetent
based on
evidence.2
eight
Bryant
for
weeks
ified
from benefits
poor
This is a
case to discuss the rules of
1982)
28,
through August
(July 4
evidence before an administrative
voluntarily quit his work
ground that he
noticing
or the mechanics of
materials in
good
with the Cathedral Home without
part of the
the files or otherwise as
basis
1983,
Bryant appeal-
cause. On March
Furthermore,
for a decision.
this is not the
ed,
deputy
and the
issued a redetermination
attempt to reconcile
case for this court to
Bryant entitled to benefits with-
which held
16-3-107(r),
the mandate in
W.S.1977
§
point the
disqualification. At this
Ca-
out
(“Findings of fact shall
based exclusive-
be
appealed.
thedral Home
officially
and matter
ly on the evidence
referred to the ESC’s
The matter was
noticed”),
16-3-109
with the mandate
hearing
appeals examiner
conducted a
who
(“The agency shall consider the whole
Bryant
August
1983.
did not attend
any portion stipulated to
record or
a deci-
hearing.
The examiner issued
say that this case does not
parties”). We
reversing
deputy’s
sion
redetermina-
meaningful discussion of
lend
to a
itself
tion, disqualifying Bryant
eight
for
weeks
those
because:
matters
voluntarily quitting
without
benefits
appeals
ex-
hearing
before
1.
Bryant appealed this decision
cause.
and so far as we
aminer was informal
ESC,
which affirmed the examiner’s
tell, only
lawyer was involved.
one
can
action.
is taken
transcript of evidence
2. The
16, 1983, Bryant filed a
On November
not letter-
tape recording and is
from a
the ESC’s
petition
judicial
review of
perfect.
Court for
final decision with the District
testify
introduce
not
nor
3.
did
County.
court found
Albany
The district
evidence.
quit, reversed
Bryant had
cause to
whether
4.
do not know
disqualifying Bryant for
We
the ESC’s decision
court
examiner,
the district
benefits,
the ESC or
and awarded benefits
evi-
than the
matters other
considered
disqualification.
without
words,
competen-
In other
Appellee objected
and nature ...
to the evidence considered
2.
asserting
purposes
administrative
cy
it was
examiner
evidence for
hearsay,
proceedings
in-
made to
agency adjudicatory
lacked foundation and otherwise
hand, appellee prof-
competent. On the other
of such
logical persuasiveness
upon
rest
contending:
quality,
lesser
using
fered evidence of a
it to
mind
to the reasonable
asserts, that 'under the substantive
Dictio-
“Petitioner
Black’s Law
support
conclusion.’
rule,
applied
Edition,
in administrative
(Emphasis
evidence
proceedings,
add-
p. 1281.
nary, 5th
competent
all evidence
ed).”
considered, regardless
its source
be
“(E) Unsupported by
evi-
the administrative
substantial
produced
dence
dence in a case reviewed on the record
hearing.
agency hearing provided by
of an
stat-
however,
we need
significantly,
More
ute.”
suggested by
legal matters
some
discuss
unnecessary
they are
counsel because
appeal
of an
from a decision
the standard of
Under
our determination.
agency,
obliged
administrative
we
hereinafter, it does not make
out
review set
though
it came direct
review the
trial court considered
any
if the
difference
ly
agency.
this court from the
We are
into evi-
offered or admitted
materials not
accept any
of the conclusions
not bound
facts not noticed
dence or considered
reached in the district court.
therefore
agency. We
the administrative
Department
v. Bar
State
Education
first issue raised
need not address the
ber,
Wyo.,
tion, lacking authority or or limitations Transmission Com- Gas McCulloch statutory right; Public Service Commission pany v. 173, (1981), P.2d 178 Wyo., 627 “(D) Wyoming, procedure observance of Without basic rules about law; reviewed some this court required appeal from a decision of an administrative examine only the record to determine if agency, and said there is substantial evidence to support decision, the Board’s appellate but we considering court must also
“[a]s
conflicting
examine the
appeal from an
agency,
administrative
to deter-
ifmine
the Board
accept
agency’s findings
reasonably
we must
could
have
supported by
made its
upon
fact when
substantial evi-
and order
all of
* * * ”
dence.
the evidence
Substantial evidence
before it.
[Citation.]
is relevant evidence which a reasonable
In Universal
Corporation
Camera
v.
might accept
supporting
mind
Board,
National Labor Relations
340 U.S.
* * * ”
agency’s conclusion.
[Citation.]
474, 488,
456, 465,
456,
S.Ct.
95 L.Ed.
In an
from an administrative tribu-
467-468
it was stated:
“ * * *
nal, we said:
court
displace [A]
[not]
“ * * *
ru]e
j-'p-jjjg
adopted and followed
Board’s
fairly
choice between two
con-
by appellate courts here and elsewhere
views,
flicting
though
even
the court
deferring
opinions
their
justifiably
have made a different
credibility
of the evidence to that of
choice had the matter been before it de
* * *”
the trier of the facts in the first instance
novo.
should be adhered to in land lease eases.
holding
The above
quoted
ap
was
with
* * * ”
Lindmier, Wyo.
Howard v.
proval in National Labor Relations Board
78, 86,
214 P.2d
Manufacturing Company,
Walton
This standard was also followed in Board
(1962);
U.S.
82 S.Ct.
relative
reason;
just grounds
Unemployment
test of
Compensation Board of
will bear the
* * ’ ”
*
Review,
185,
for action.
Pa.Cmwlth.
A.2d 1207
Commonwealth,
Stacy v.
(1979);
Unem
of review
applying
the standards
ployment Compensation Board
Re
developed
court we are satisfied
by this
view,
355, 402
43 Pa.Cmwlth.
A.2d 330
reached
the ESC to
that
the decision
(1979); Denby v. Board
In
Review
July
from
disqualify appellee for benefits
Commission, Utah, 567
dustrial
28, 1982,
August
voluntarily
through
leaving
good
cause
his
without
supported by
substantial evidence.
general
rule indicated above
appellee
Evidence
in-
showed that
was
apply
employee
if
would not
were seri
quit
job;
volved in an altercation and
his
ously injured, had a genuine fear of assault
he
in-
that
was
was no evidence
there
work,
if he
to
returned
had
reason to
the as-
jured, and the inference
attempts
out
prob
believe that
to work
also
sault was minor. There was
futile,
attempt
stop
lem
to
would be
appellee
that the
on
was
isolated
assault
exceptions
abuse had failed. None of these
apologized
incident and that
assaulter
here,
general
to
apply
rule
however.
appellee
investigator
and assured an
support
in
appellee
Cases cited
of his
happen
that such an incident would not
he
quit
contention that
had
cause to
again.
was
if
asked
there was
job
generally
cases
which the
get
anything that could be done to
him to
employee
abuse of the
was of a serious
said, “No,”
stay
he
and he
and that
was not
v. Em-
example,
Coleman
nature. For
a meeting
interested in
with his assaulter
ployment Security Department Wash-
quit anyway.
going
because he was
ington,
Wash.App.
P.2d
reprimanded
Waines
for his
was
assault
night
Ms. Coleman worked the
encouraged
appellee. Bryant
stay
was
co-worker,
strong,
shift. A
male
in a
while
job
employer
and let
deal with
rage,
“punch your
blind
threatened
Waines,
stay.
did not want to
but
throat,”
right
your
ap-
cheek
down
appellee
Letters and statements
complained
peared ready to do
so. She
file,
portion
but not
evidence contradict
management and
to be
asked
transferred
*6
produced by
of the
the Cathedral
evidence
Instead,
day
shift.
the male co-
However,
appeals
Home.
examiner
a transfer
worker was rewarded with
required
and the
ESC were not
believe
day
shift. She also had
more desirable
give
these statements or
them such
could
genuine
safety.
a
fear for her
weight
they
prop
as
desired. We
Commonwealth,
In Boogay v.
Unem-
erly
opinion
weight
our
substitute
ployment Compensation Board
Re-
credibility
and
of the
for that of
evidence
of
view,
51, 405
46 Pa.Cmwlth.
A.2d
Spi
ESC,
could
nor
the district court.
(1979), the claimant was an instructor and
vey
Corporation,
Lucky
McUranium
alley frequented by
bowling
clerk at a
youth
As a result of
gangs.
members
employee
justified
quit
An
is not
they
frequent
requests
her
that
leave
ting
minor,
job
because of a
isolated
premises,
anger
their
and
she incurred
employee.
confrontation with a
This
fellow
physical
This caused
threats of
violence.
particularly
employee
if
true
the abused
aggravated
existing
medi-
stress which
does not have reason
that fur
to believe
genu-
a
cal and nervous condition. She had
stays
job.
ther abuse will result if
he
safety.
for her
ine and reasonable fear
aggrieved employee
duty
An
has a
to re
Corporation
Eat
v. Com-
Break N
In
port
cooper
to his
employer
abuse
monwealth,
Compensa-
Unemployment
ate in some
action to elimi
common-sense
Review,
tion
Pa.Cmwlth.
Department
Board
problem.
nate
Larson v.
(1981),
Minn.,
quit
Security,
Economic
The ESC admits evidence in Bryant’s part statements as in statement of the consider claimant’s reaching its decision: deputy’s The is facts. decision final unless the is based on evidence
“ESC’s decision party appeals a or seeks a redetermination. port ments These claim the cy’s ESC evidence written Bryant outside hearing on this that [*] reports, deputy’s [*] of his deputy in for benefits a [*] statements are did was introduced not request signed the original err first submitted support consist of two fact-find- the by failing to consider as for a redetermination of and the second in matter and decision. statements evidentiary hearing Bryant’s initial These to the evidentiary is proper. made provide state- agen- sup- by the deputy’s redetermination of pursuant the ant’s statement benefits. stitutes evidence basis for a decision idence Since on ant’s Section behalf deputy’s the statement made bearing deputy 27-3-404(b) For the of the decision, 27-3-402(c), W.S.1977,2 on a forms a in is ESC same the initial support right such statement and sets out the in reasons, the to benefits. partial connection with since the ESC finder the the eligibility basis claim for upon of fact proper claim- claim- is ev- con- re- view: reported to the the facts are true best that knowledge and The record belief. “(b) appeal on Upon review or and based by Bryant a letter also contains submitted upon previously evidence submitted or response from ESC in to notification to the may tak- additional evidence it direct be hearing impending of the
the Commission affirm, en, modify the commission appeal consider examiner’s decision. the or the reverse and conclusions statements The ESC that these concedes appeal of the tribunal.” in this case. The part of the record are on all The its must base action Commission contends, however, that since submitted, in- previously evidence the into the documents were not introduced cluding applicant’s factual statements appeal evidence before given deputy, or on evi- additional examiner, they are were taken, could dence that it directs be which proper agency’s for the deci- not a basis Bryant’s include letter ESC. Wyoming Employment sion. 27-3-704, Law, through 27-3-405(a) W.S. provides 27-3-101 Section §§ Wyoming and the Administrative Act Wyoming Administrative Procedure through Act, 16-3-101 16-3- Procedure §§ governs hearings or before 115, W.S.1977, refute this contention. Wy- 16-3-1093 of Commission. Section di- Act oming Administrative Procedure 27-3-402(a)1 Under § consider the whole rects the Law, deputy desig- Employment Security a 16- reaching a decision. Section determines a claimant’s record nated the ESC 2. Section 1. Section part: for denial. The determination or delivered." final unless a section *8 for redetermination or efit amount entitlement for that claimant "(a) tion within ten W.S. a Determination of deputy designated by 27-3-402(a), (c) 27-3-401(a) 27-3-402(c), of this [*] if a claim is [*] party (10) days [*] section, Except shall entitled to notice W.S.1977, shall be W.S.1977, a state after notice mailed claim denied, the a determination the commission. provided by made the determina- provides: filed week provides weekly promptly pursuant reasons applies ben- sub- in 3.Section ten party vant to but not considered tion or finds benefits tion identity, determined ered.” "The * * * “(c) any portion stipulated to (10) days if he finds an error agency entitled to notice files an A 16-3-109, discovers deputy may redetermination shall consider after notice mailed W.S.1977, misrepresentation of facts. wages reconsider a determina- of the claimant allowed, is the whole provides computation or final determina- denied unless parties." in record within deliv- part: rele- or
1319 3-107(r)4 requires of the Act of all of the evidence properly in exclusively of fact base record. I would have remanded this case in the record matters offi and on with directions the ESC to consider cially noticed. Evidence in the administra appellee’s eligibility for benefits in light of other tive record derive from sources signed, his written statements to the Com- evidentiary hearing. Holding’s than mission. County
Little America v. Board Com Laramie 670 County, missioners of (1983). given to be the statements at part in depends
issue case at bar on they impeached
the extent to which were before the examiner. are, however,
They evidentiary proper which the items ESC was not entitled to SMITH, Donald Lee ignore deciding Bryant’s eligibility for Appellant (Plaintiff), unemployment benefits. These statements v. are not materials outsider submitted proceedings such as tainted the SMITH, Appellee Rae Barbara agency’s decision-making process Fallon (Defendant). v. State Board Medical Ex- No. 85-20. aminers, Wyo., (1968). 441 P.2d Nor 322 they parties are matters to opposing which Supreme Court Wyoming. opportunity respond. Clay had no v. Everett, Ark.App. 122, 4 S.W.2d Aug. 21, 1985. Rather, they signed statements by the made claimant to the Commission prove right pursu-
order to benefits security
ant to law. The obligation had an to consider Bryant’s in deciding
these statements
claim. ample legal
I note further that
authority proposition exists for the that a
physical attack or threat of attack
co-employee constitutes cause for ter-
minating employment. one’s Escamilla State
Industrial Commission
Colorado,
(1983);
Colo.App.,
Hussa Washington,
ment
State
Wash.App.
(1983);
man v.
ment, Wash.App. 607 P.2d
(1980). Whether the incident in the case at appellee’s
bar amounts cause for
voluntarily leaving job question is a
fact must be the basis which on determined 16-3-107(r), W.S.1977, provides:
4. Section ticed.” “(r) Findings of fact shall be exclusive- based ly officially evidence and matters no-