Lane v. Board of Review of the Industrial Commission

206

Eric, separate custody in a ler’s all he proceeding, argue counsel needed to his jury. relationship theory like did not defendant’s Thus, although mother. counsel was her foregoing reasons, For the the conviction permitted to introduce into evidence the is affirmed. evaluation, the victim’s the 1983 details against amply defendant was shown bias C.J., HALL, DURHAM, and HOWE and addition, evidence. In defendant other JJ., concur. admits his brief to this Court that STEWART, J., concurs in the result. any not know what relevance further does testimony would regarding have had truthfulness; speculates he only

victim’s helpful. light that would have been foregoing, defendant not material- ly prejudiced ruling. the trial court’s second appeal Miller’s claim on is that give court refusing the trial erred in at LANE, Randy Plaintiff, M. of his jury least instruction. Defendant concedes that the last two sen- v. of his tences instruction are im- OF BOARD REVIEW OF the proper they under Utah law because are INDUSTRIAL COMMISSION OF cautionary nature and amount com- UTAH, Defendant. argument ment or on the evidence. State No. 20888. 550-51, Rutledge, 546, 63 v. 227 P. (1922); 479, Reddish, 481 550 State v. P.2d Supreme Court of Utah. (Utah 728, 1976). 729 Miller Oct. sentenpe the first claims in his instruction given should have been jury because represents theory of the case.

aWhile criminal defendant enti jury tled to have the instructed law underlying theory his or her the case if supports instruction, the evidence such an McCumber, State 622 P.2d 359 1980), (Utah right a defendant has no multiple setting instructions forth his or theory her People, the case. Coca (1964). Colo. 391 P.2d theory charges Miller's was that against him were fabricated. He contends theory embodied instruction. other instruc given in amply

tions this case forth set on the issues. jury law instructed judging credibility wit nesses, they could take into a wit account testifying, bias or

ness’s motive for they might disregard entirety testimony they witness’s if believed falsely witness testified as to ma gave fact. terial These Mil- instructions Child, L. Ogden, plaintiff.

Curtis for Wilkinson, Atty. Gen., L. David Lorin R. Blauer, Salt Lake for defendant.

ZIMMERMAN,Justice: is an appeal

This from decision of the Board Review of the Industrial Commis- reversing sion a decision of the administra- judge. tive law The Board found that Ran- Lane dy M. from his em- ployment just cause, thus disqualifying him benefits under the Em- ployment Security Act. We conclude as a matter law that cause” to dis-

charge Lane did not exist. years,

For five Lane wife were Inc., Telum, employed by as co-assistant managers stop a diesel fuel truck Parowan, 5, 1985, April Utah. On Lane was cited the Parowan Police for result, selling beer to a minor. As a Lane employment was fired from his with Telum April on sought compensa- unemployment Lane law tion. administrative sched- hearing uled whether determine Lane eligible to receive benefits.1 At the hearing, Lane testified was aware prohibited that Telum the sale of beer to person minors to whom he claimed, beer sold the was a minor. Lane however, checking his error in merely customer’s identification an er- Code, -4—5(b)(1) crime, deliberate, willful, per constituting 1. Under section which is 3 5 employer’s right son is not benefits entitled or wanton adverse to the 35-4-5(b)(1) (1974 "discharged just cause or for act or ful interest.” ed., added). employment, Supp.1985) (emphasis omission in connection with provide held, ror in that did not Telum recently And as we the rules of employ- cause terminate his are valid un policy ment. Lane asserted that Telum’s agency complies less the with the rule-mak any per- was to the identification check ing procedures prescribed in the Rule Mak enough pur- look son who did not old ing Act. Williams v. Public Service Com beer, to whom chase individual ission, (Utah 1986). P.2d 775-77 wearing he was clothes sold the beer old Therefore, proposed the rule ap cannot be hat, beard, ap- and had a and a slouched plied determining in the existence of peared twenty-one years age. of to be over 35-4-5(b)(1) cause” under section of the representative A of Telum that testified Employment Security Act. employees was that policy Telum’s Board notes that previously have to minors circum- not to sell beer under and proposed considered have the an stances and that who was Review, rule in Kehl Board 700 P.2d selling of cited for beer to a was minor sub- (Utah 1985). Kehl, It is in true that ject to dismissal. automatic The adminis- proposed we stated that the rule was with- policy found that trative law Telum’s in limits of “the reasonableness ration- it, was as Lane had described and that ality.” Id. at 1134. in that case Lane’s error was inadvertent rather than party problem neither raised the of the was intentional. Lane awarded benefits. adoption incomplete of rule. the There- the appeal by employer, On the Board of fore, judgment while Kehl’s on the reason- Review the reversed administrative law sound, of the ableness rule is Kehl does not judge. upon Relying the of Pro terms the change proposed fact that a administra- posed A71-07-1:5(II)-1(A)(3) Rule of the yet tive rule which was in force of Rules discharge pro- Lane’s occurred cannot now Regulations,2 the Board found vide a lawful basis for the Board’s deci- provided just Lane’s conduct Telum with the upheld sion.3 If Board’s is to action be discharging cause for him and that he case, in judged must be conduct ineligible therefore was for benefits. Lane solely provisions of section 35-4- appeals. 5(b)(1)of the Code. Initially, argues Lane determining whether Board was by applying Board erred the proposed rule discharged correct in that Lane was in determining that he had been we first must define that “just cause,” because has that rule background term. Some historical is of adopted provi in accordance with the assistance, since none of our cases have sions of the Utah Mak Administrative Rule directly addressed the Prior issue. ing seq. Act. et 63-46a-1 § (1978 ed., ineligible was for benefits if Supp.1985). agree. We “discharged was for misconduct certainly rule is an con- Laws, rule nected with his promulgated that must be accord work.” 1941 Utah requirements ance provision with the ch. 5. This of the Rule was Making Act. See id. at 63-46a-2 and 3. in Continental Oil Board Co. v. Re- §§ 2. The text 15, 1986, proposed reprinted January of the rule is 3. As of rule with substantive, organizational, Kehl v. Board 700 P.2d 1133-34 certain rather than interpret changes finally adopted It endeavors to the stan accordance "just 4-5(b)(1) Making dard of upon cause” in section the Rule Act. Based 35 - (i) essentially requires employee’s con that the that the is a Kehl rule reasonable "culpable” seriously duct statutory be in the sense of and rational articulation of the stan cause, affecting employment relationship appears adopted or harm dard that the interests; (ii) ing employer’s rightful properly rule can serve as basis of decision knowledge January matter decided after him; expected (iii) ruling today only applies Our matters decided offending conduct be within control before the effective date of the employee. rule. view, (Utah 1977), ignore where we intended to disregard or employ interests, “miscon- determined that er’s but also apply could if the “element of willful- duct” must evidence an employee simply acted with careless inat equal culpability.” or ness or wantonness consequences. tention to the at 731. This construction of the term Id. City Department Employment Se recognition upon “misconduct” was based curity, 663 P.2d at 444. general purpose Employ- Security Act is to “cushion the effect After the Board of Review’s deci work, unemployment” upon those out of sion which we reversed in purpose and that this would be served opinion but before our formal in that case employment if benefits were not available issued, amended section number of cases where substantial 35-4-5(b)(1) to add the words discharges as a result occurred of “mere as a basis for a that would dis mistakes, errors the exer- qualify from benefits. 1983 (quoting cise of discretion.” Id. at 730 20, Laws, ch. 3.4 legis Neither the § Neubeck, 237 Boynton Cab Co. Wis. history lative nor the notes of the Labor 636, (1941)). N.W. Development Economic Committee of legislature In amended the stat- provide any guidance Utah Senate as to language incorporated ute and similar to why “just cause” language was added by that used this Court in Continental Oil. to the in statute from all language, Under the amended circumstances, especially consider disqualified receiving from benefits ing the Industrial application Commission’s when he or she was “for an act of the statute which we in criticized employment, or omission in connection with decision, appears that it Clearfield crime, constituting a which is deliber- accomplish by was an effort to amendment ate, willful, or wanton and adverse to the by that which interpretation we achieved employer’s rightful interest.” 1979 Utah City: discharged employee a Clearfield Laws, ch. 3. This new version of ought to culpable be somewhat before be the statute was considered Clearfield ing employment benefits, denied but the City Department Employment Se- employee’s culpability does not have to rise curity, 663 P.2d 440 There to the level of an intentional harm to the the Board of Review had found that the employer’s interest. eligible for benefits because We first considered the statute’s new he had intentionally employ- harmed his “just language in Kehl v. Board reversed, er’s appeal, interests. On we (Utah 1985). There, “deliberate, willful, that or responded we employee’s attempt to the wanton and employer’s adverse to the enlist interpretation the Continental Oil rightful requirement interests” could be support argument “misconduct” as for the satisfied when resulting the conduct in dis- that evidence of willfulness and wanton- charge consisted of by “volitional acts required “just ness is for a cause” termi- employee who could not have been heedless nation disqualify which will (foot- of their consequences.” Id. at 444 noting benefits. After omitted). then, note we Clearfield provision Continental Oil made it despite any implication clear that repealed, explained that was later contrary amendment, in the 1979 “[discharge upon cause was added to Continental Oil which that amend- based, ment was disqualification deny- as a reason for for bene- [the statute] further fits did showing ing benefits and consti- [it] upon to inflict separate intended harm or tutes a from the standard delib- ed., 4—5(b)(1)(1974 4. This is Supp.1985). the current version of the statute which § 35 - applicable present is case. erate, willful, 5(b)(1) apparently or wanton standard Con- to correct this re- [of (emphasis add- interpretation. tinental Id. at 1135 strictive Oil While some ].” ed). nec- present, This statement went further than fault must be it is sufficient that essary intended, circumstances because it were consequences the acts forseeable, acknowledge City’s reasonably failed to and that interpretation of the ameliorating statute’s such acts have serious affect [sic] “deliberate, language. employee’s job or wanton” or the inter- certainly does not contradict ests. cause,” present “just conclusion applied While the rule cannot be by which was added statute the 1983 deciding case, this it is written amendment, “deliberate, willful, agency most familiar interwoven standard, wanton” which was articulated legislative, judicial, and administrative his present essentially tory of cause.” In the absence unitary discharges standard for legislative history, (A)(4) paragraph would result in the loss of bene- proposed helpful rule is and confirms our fits. interpretation of what the in tended its amendment of the statute in interpretation sup- We is note that addition, brief, 1983.6 In in its the Board ported by (A)(4) paragraph Depart- rule, affirms Review Employment ment of Security’s proposed interpretation which is an administrative rule5 which was in Kehl: merely regulatory cod The term cause” as in sec- used of ification this Court’s decision Clear- 5(b)(1) tion does the not lessen [35-4-] City. requirement that there be on some fault field part the of the Prior involved. We now must determine whether Lane to the 1983 of the addition term for “just cause” as that cause” the Commission sec- term is used in the Under statute. the 5(b)(1) tion inten- an standards articulated in [35-4-] Clearfield of tional infliction harm or intentional which use term we to define the in the disregard employer’s statute, of requires the interests. this the of some The Legislature adding intent of culpability the fault or of Lane.7 the words regard to section prong With to the first of Clear- [35-4-] (A)(4) rule, Paragraph proposed proposed is iden- supra, rule in the see note the result (B)(3) paragraph tical to of the rule as it has would Kehl be no different had we con adopted. alone, it under sidered the statute without re reason, gard proposed any to the rule. For this proposed respect 6. An examination of the rule improperly by case the considered under ing "just our in Clearfield proposed rule before its effective date would "deliberate, willful, City interpreting or wanton" differently not be decided under the stan they confirms that define the same standard. today. may suggested dard we articulate be It instance, For Clear- both rule and engaging that we are in a rather formalistic City anticipate that the conduct will occur field by basing pro exercise our decision on the employment.” "in connection posed rule which we Kehl before potential rule looks to "actual or harm to we made aware of the rule’s nonfinal interest”; employer's City discuss Clearfield Quite opinion contrary, status. here es whether the "adverse conduct was interpretative background adds employer’s essential interest." The rule "just requires knowledge meaning of term that the of cause” as that is used in have expected of standard conduct and that com As for Act. the nonfi pliance rule, with that standard be em only within the reaffirming nal status we are control; ployee’s City requires what was said in Williams Public Serv. Clearfield disqualifying by conduct be an “volitional acts Comm’n, (Utah 1986): in their employee who of could have been heedless activities, rulemaking agencies consequences.” Depart their comply Clearfield statutory appropriate must with the re Employment Security, ment 663 P.2d at 444 quirements if their rules are to force (footnote omitted). and effect. 7. Because the test deduce from Clearfield substantially is the same as that contained test, City’s three-part disqualified we have no from unemployment bene

field question “in con- that Lane’s fits her discharge when his or is due to employment.” nection with The sale of inefficiency, conduct, unsatisfactory or fail duty beer Lane was on at occurred while good performance ure of as a result of employer’s store. The beer was sold inadvertence or isolated judgment errors in inventory payment out of store went or discretion. Continental Oil Co. v. register. employer’s into the cash Review, 730; Board 568 P.2d at Kehl v. Board 700 P.2d at 1134. In Application prong of the second stead, degree of culpability which will City test —whether the conduct disqualify ben was “adverse to the interest”— efits involves “volitional acts employ is more difficult. Telum contends that as a ee who could not have been heedless of conduct, result of subject it was their consequences.” City v. the loss of its business license under Employment Security, U.C.A., Liquor Control Act. See 444; 663 P.2d at Depart accord Trotta v. (1974 ed.). However, 32-8-53 Employment Security, 664 P.2d revocation of license under that statute only can occur if an unauthorized sale occurs with the employer’s The record shows that Lane’s con consent, “knowledge, acqui- connivance or duct falls category into the of an isolated nothing escence.” Id. There is error in or discretion. He testi suggests record that Telum consented to fied before the administrative law the unauthorized sale of beer and there is that it employer’s policy was his to check likely no evidence that Telum was to be persons age identification all whose prosecuted for this incident. On the other questionable. The administrative law hand, the sale of beer minors is a serious judge plainly credited testimony. strong public matter and contravenes a pol- Board of Review found that Lane “was icy. Telum may have been concerned that responsible proof to ask for ID age as discharge Lane, if it had failed to it would all purchaser’s age cases where the ques appeared acquiesced to have in Lane’s tionable.” The uncontradicted evidence is unauthorized liquor. sale of On the record age that Lane’s failure to check the us, before we cannot conclude that person to whom he sold beer was a mistake Board of finding Review erred in this ele- in judgment and not an intentional or ment satisfied. knowing disregard policy. prong The third representative Telum’s testified that Te- pertinent test is most policy prohibited here—whether lum’s the sale of beer to “degree conduct evidences a anyone age twenty-one. sufficient This of culpability” rather, in the hardly self-executing policy; sense that it consti it tutes a “volitional goal is better characterized as a to be [act] who could not have been heedless of nothing achieved. Yet there is in the [its] consequences.” discharge of an em record to indicate that Telum established ployee for the procedures sale of beer to a minor is a employees clear to fol severe, although certainly permissible, re low to assure that beer would not be sold sponse of employer enforcing minors, its to other than to instruct them to rules of employee conduct. age Because the check identification when inwas doubt. purpose of Act is example, required For Telum could have to checking ameliorate the harsh unem people effects of of identification of all ployment, however, every younger “not forty. cause for who looked than Such a discharge provides deny eligibili procedure might a basis to have been certain to ty compensation.” goal, achieve the and it is a standard against Employ employee’s which an conduct could Security, Then, if, Kehl, 663 P.2d at 441. One is be better measured. as specific proce- though s necessary Lane had violated Telum it would seldom seem on-the-job respect higher dures for resort standard since the trained, which he had “just lesser standard of cause” would be might cause even for a be sustainable first easily more met. employer

violation. leaves certain matters DURHAM, J., in the concurring concurs vague guidelines, only discretion with al- HOWE, opinion of J. discharge though it can when he or she exercises discretion in

good results, faith with untoward but expect

cannot to be denied unemployment compensation. reasons,

For we reverse these the deci- sion of the Review and Board of hold that “just not for cause.” SATHER, Jewelry R.R. Sather dba HALL, C.J., STEWART, J., concur. Company, Appellant, Plaintiff and HOWE, (concurring result): Justice in the I ground concur on the that Lane was George Gross, S. and JoAnn GROSS guilty only of in judg- an isolated error Respondents. Defendants and ment, faith, in good explained made as I majority opinion. “just believe that No. 20409. requires higher degree cause” culpa- Supreme Court Utah. bility present than here. I do agree “just requires culpa- cause” 16, 1986. Oct. bility equal “deliberate, to conduct which is When the wanton.” statute, added cause” engaging was not useless act. It separate

intended be a additional that already standard to “deliberate, willful,

statute of or wanton.” We so held Kehl v. Board P.2d 1129 While both stan- dards culpability employee, cause” includes rise degree which does not being “deliberate, and wanton.” The latter words describe conduct which intentional, being falls short of but which is culpable negligent. more than “Just termination, however, cause” for might arise from negligent the commission of a repeated

act. For example, negligent act endangers safety place might others at the work well constitute but being would not level of rise to the “delib- erate, willful, or wanton.” Roosevelt,

I Anthony Famulary, therefore do not believe the stat- J. standard, ute unitary plaintiff now contains a appellant. al-

Case Details

Case Name: Lane v. Board of Review of the Industrial Commission

Court Name: Utah Supreme Court

Date Published: Oct 16, 1986

Citation: 727 P.2d 206

Docket Number: 20888

Court Abbreviation: Utah