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HUBBELL MECHANICAL SUPPLY CO., Appellant, vs. JAMES A. LINDLEY, and DIVISION OF EMPLOYMENT SECURITY, Respondents.

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No. SD30994 Opinion filed: September 20, 2011

APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS COMMISSION AFFIRMED. Appellant Hubbell Mechanical Supply, Co. ("Employer") appeals from the Labor and Industrial Relations Commission's ("the Commission") "Decision of Commission" which found that Respondent James A. Lindley ("Claimant") was not disqualified from receiving "benefits as a result of the work separation of May 15, 2009, because [Claimant] was discharged by [Employer] on that date, but not for misconduct connected with work." Appellant asserts four points of error against Claimant and Respondent Division of Employment Security ("the

Division") (collectively "Respondents"). We affirm the decision of the Commission. The record reveals Claimant had been employed as a sales representative for Employer for approximately two and a half years and he was discharged by Employer's corporate president, Declan Hubbell ("Mr. Hubbell"), on May 15, 2009, for purportedly faxing an inaccurate quote to a customer as well as for failing to follow instructions. Claimant filed his claim for unemployment compensation benefits on May 31, 2009. Initially, a deputy for the Division determined Claimant was disqualified from receiving unemployment benefits because he was discharged from his position with Employer "FOR MISCONDUCT CONNECTED WITH WORK." Claimant appealed that decision to the Appeals Tribunal. A hearing was held on October 9, 2009, at which Claimant and Andrew Wilson testified on Claimant's behalf and Mr. Hubbell testified on Employer's behalf. Following the presentation of evidence, the Appeals Tribunal issued its "DECISION" on October 27, 2009, in which it found credible Claimant's assertion that he was "told that his employment was being terminated due to lack of work;" however, it also found that Claimant "did disregard the instruction of [Mr. Hubble] not to send the quote," which was a violation of Employer's rules of conduct. Specifically, the Appeals Tribunal determined that Claimant sent to a customer a quote which he had been ordered by [Mr. Hubbell] not to send because it was not correct. This action violated [Employer]'s rules of conduct as they relate to insubordination. [Claimant]'s failure to follow the orders of [Mr. Hubbell] demonstrated a substantial disregard for the interest of [Employer], the standards of behavior established by [Employer], and the duties and obligations [Claimant] owed [Employer]. 2

Therefore, [Claimant] did commit misconduct resulting with the termination of his employment. Accordingly, the Appeals Tribunal found Claimant was "disqualified for benefits . . . ." Claimant appealed the decision of the Appeals Tribunal to the Commission. The Commission issued its "ORDER OF COMMISSION" on February 24, 2010, in which it found it was necessary to "REMAND" this matter to the Division. The Commission found: [t]he transcript from the October 9, 2009[,] hearing is replete with `unintelligible' portions. In addition, the transcriptionist has indicated throughout the transcript: `Apparently machine malfunctioned--portion of testimony inaudible.' A review of the original audio recording of this hearing reveals that significant portions of the parties' testimony has indeed been left out of the record due to apparent malfunction of the recording equipment.[1] Due to the poor quality of the audio recording, the Commission does not have an adequate record upon which to base a decision. See Bayne v. Our Little Haven, 109 S.W.3d 230, 231 (Mo. App. 2003). The proper way to cure this defect is to remand the matter to the Division for a new evidentiary hearing. Id. As a result of this deficiency with the transcript from the initial hearing in this matter, the Commission specifically "set[ ] aside" the decision of the Appeals Tribunal and "remand[ed] this matter to the Division with directions to conduct a new hearing, after adequate notice to all parties." It directed that after a "new hearing" was held, "[t]he Appeals Tribunal shall then issue a new decision based upon the new record created in accordance with this order of remand." Both parties acknowledge in their briefs that the initial hearing transcript contains 70 "(unintelligible)" references which occurred mainly during the testimony of Employer's witness and during the cross-examination of Employer by Claimant's counsel and that there are also at least five notations in the transcript regarding the machine malfunctioning and portions of the testimony being "inaudible." 3
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The matter was remanded to the Appeals Tribunal and a second hearing was held on June 1, 2010. At the beginning of this hearing counsel for Employer offered into evidence "the entire transcript and the exhibits from the prior [October 9, 2009,] hearing so [they would not] have to rehash . . . those parts that are clear in the record." Employer also filed a motion requesting to supplement and/or correct the transcript from the first hearing. The following colloquy then occurred: THE REFEREE: As to the transcript, I've not given any directive as to include a transcript of a previous hearing into evidence for a subsequent one. What would be the basis for that? COUNSEL FOR EMPLOYER: Well, I . . . think this hearing should supplement the record where . . . they found that the . . . typist put down in several places that she couldn't hear. She couldn't understand the tape, but the . . . vast majority of the hearing was . . . clear, and we . . . went through a hearing, that seemed like it was three or four hours long on October 9, and I would hope we wouldn't have to rehash all that . . . in the record. [T]here's exhibits there and testimony. And . . . I wanted to file along with my request to take the transcript a motion to correct the transcript, which I've gone through and listened to the tape, and . . . the vast majority of the places where the typist said she couldn't hear, she couldn't understand what was said, is pretty clear, I think. I haven't heard [Claimant's counsel's] response to this motion yet. I did . . . fax him a copy of it the other day . . . . So, . . . I would propose that we take the transcript in evidence with this motion to correct the record and let [Claimant's counsel] have a week or ten days to respond to it and to see if he agreed with what I hear on the tape or not because I think . . . I've been able to tell what was said because I was at the hearing. I--and I've made an affidavit with this motion to correct the record. .... COUNSEL FOR CLAIMANT: The way I read the remand, it stated that there was to be a new hearing, and I . . . think it would be inappropriate to just . . . admit a corrected transcript because we had asked, for several reasons, one is that . . . there's . . . that the direction for the new hearing . . . would indicate that . . . new 4

evidence would be heard, . . . that it would . . . be a . . . new hearing, and the . . . other is that because we asked for an inperson hearing, reading the whole transcript doesn't give the . . . inflexion and the information that the Hearing Officer would . . . necessarily need for a new hearing. I think it certainly could be used for impeachment if there's a proper foundation for prior inconsistent statements or something to that effect, but as far as being more convenient, we don't want to wait another week or ten days for a hearing, and . . . we'd like to proceed today, according to the direction . . . what we understand the remand to be. THE REFEREE: Is there any impeachment or prior inconsistent statement purposes for the transcript? COUNSEL FOR EMPLOYER: Well, . . . there may be, depending on what . . . is presented in evidence here today, but . . . the vast majority of it is [Claimant's counsel] states he doesn't want to wait a week or ten days. [T]here's no way we can get through this hearing today, in my opinion, between now and 5 o'clock, unless we do accept the transcript, and . . . my . . . proposal is to accept the transcript and let either side supplement it and use [it] in any way they want to at this hearing. THE REFEREE: I don't see the word supplement in here in the [Commission's] Order, as far as supplementing the record, appears to have remanded . . . for a new hearing, a new record. COUNSEL FOR EMPLOYER: Well, I think it's kind of like a courttried case . . . for instance . . . like when you have an injunction case, for instance. When I've had injunction cases in certain court[s], you had a hearing on a temporary injunction and you come down to the hearing on the permanent injunction. In the cases where I've been involved, . . . they've always taken in the transcript from the earlier proceedings as a part of the record so that you didn't have to rehash it all, and . . . I don't think there's anything inconsistent with that in the Remand Order. The Remand Order says to make a clear record, a complete record, and the best way to make a complete record would be to supplement those areas where the transcript is deficient . . . and . . . let anybody raise any point that they want to challenge . . . what we're trying to do is get to the facts, and to the extent that we've already covered those facts, we shouldn't have to cover them again. .... COUNSEL FOR CLAIMANT: [F]or the reasons already stated, that it . . . deprives the fact-finder of . . . the matter and . . . the timing, 5

and . . . the reason they have in-person hearings . . . and also, it injects the question of what the lawyers think was said and . . . what was omitted at that hearing, and . . . that's just going to cause . . . I cannot see how that would create less confusion. The Referee then found that it was going to take into evidence "the Division exhibit packet, and because this is all attached together, [he] will mark this whole attached transcript and exhibit . . ." as Division Exhibit 1. The Referee then stated that it will admit the Division record packet after we go through the documents here. As far as the transcript itself, I've not been given authorization to admit the entire transcript, and I'll sustain the objection as far as the transcript goes. Now, on appeal, if you want to argue before the [Commission] or Court of Appeals that the transcript should be considered, you can do that, and there'll be a copy of that for them to review. But for today's hearing, I think, consistent with [the Commission's] decision to remand, I'll have to sustain the objection as far as the transcript itself, and then we'll take evidence today as to the . . . merits of the case . . . and if you have items in the transcript you want to use for purposes of . . . impeaching a witness, we'll take that into consideration when we get to that point in the hearing . . . . Counsel for Employer then again "offer[ed] on the record . . . the full transcript and the exhibits . . ." and then referenced the recently filed motion to correct the transcript. The Referee denied Employer's request to admit the transcript into evidence, but maintained its previous ruling that the transcript would be part of Exhibit 1 for purposes of future appeals. At the hearing, Employer introduced evidence that its employee policy manual prohibits "[i]nsubordination or other disrespectful conduct" as well as "[g]ross insubordination" which it defined as "a willful and deliberate refusal to follow reasonable orders given by a member of management" and that Claimant had received a copy of the manual when he was hired. According to Employer, 6

the incident which led to Claimant's discharge involved a quote for copper tubing that Claimant was asked to submit to a customer, Gold Mechanical, by Mr. Hubbell. Mr. Hubbell requested that Claimant submit a quote "for various copper sizes to . . ." the customer and Claimant apparently prepared a quote for "only one size" of copper pipe. Mr. Hubbell testified that he directed Claimant to re-do the quote to show multiple sizes of pipe, but Claimant nevertheless faxed the single size quote to the customer. Mr. Hubbell related that when he asked Claimant why he did not fax the quote as asked "he said that it didn't need to be done that way, and he became very, very angry with [Mr. Hubbell] . . . ." Mr. Hubbell relayed the incident to his father, Jack Hubbell, the corporate vice-president, and his father recommended that Claimant be discharged "because this is a pattern and a continuation, and [he] finally came to the conclusion that [Claimant's] not going to adhere to [Employer's] policies and procedures." There was also evidence that Claimant had prior instances of failing to comply with Employer's policy manual including an instance where he failed to perform on a certain account "and ask[ed] to have it removed from his call list;" an incident in which he received an official reprimand from Employer "for the way he handled a [quote] . . . ;" and an occasion when he was warned for "[i]nsubordination" and "[r]udeness to Employees/Customers." Claimant admitted he had received several written and oral warnings in the past from Employer. He related that on the day he was terminated Mr.

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Hubbell told him that he was "laid off."2 Claimant testified that he then told his fellow employee that "[he] got laid off" although he later told the same employee he "had been invited not to return" and that he believed he "got [his] ass fired." While Claimant acknowledged sending quotes to Gold Mechanical on several prior occasions, he specifically denied sending the inaccurate fax to Gold Mechanical on the occasion at issue. Claimant variously related that he did "not remember faxing a quote . . . ;" that "it would not be a

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