Opinion
Civil Action No. 99A-11-011 SCD.
Submitted: May 4, 2000.
Decided: June 13, 2000.
Dear Counsel:
This is an appeal from a decision of the Unemployment Insurance Appeal Board's decision that the claimant, Antonio Ocasio, was fired for just cause and that he is not entitled to receive unemployment compensation. An opening brief has been filed on behalf of the claimant; the employer has declined to respond.
The initial determination by the Claims Deputy was in the claimant's favor. That decision was appealed to an Appeals Referee who heard evidence and received documents. One document says that on June 15, 1999, the claimant "was sleeping in the truck when the men were loading mulch." A second document says that "Antonio Ocasio did not show up for a mandatory work day." Both of these behavior/incident documentation forms indicate that the employee would not sign the document, that the supervisor was Dave Rex and the "Subject turned over to: Mike Casmay."
Neither Rex nor Casmay testified before the Referee. The witness for the employer was Chris Ashby, Vice President of Carver's. He testified that "between the not showing up for work, the sleeping in the truck, and then with his job performance over time slowly going down that (sic) that's why he was terminated." None of Ashby's testimony was based on personal knowledge. Present at the hearing before the Referee, but not testifying, was George Flores, a manager. The claimant denied sleeping, although he said he rested during his lunch break. He also denied intentionally missing a Saturday work day; rather he said he was told that he did not have to come in. The Appeals Referee found that the claimant was discharged form his work without just cause.
The decision of the Appeals Referee was appealed to the Board. For some reason, not explained in the record, the claimant did not appear. The Board's decision notes that the claimant was "duly notified." Chris Ashby attended the hearing and testified. George Flores attended too, and testified when pressed to do so by a Board member. The deficiency Flores described was: "I've gotten a lot of complaints from other guys from him [claimant] not producing the work that he was supposed to be producing. As far as loading at night you know some, some days he wouldn't do it. He would wait till the morning to load up." The delay in loading would hold things up the next morning. Following that area of inquiry, the record contains the following exchange:
Board Member: And he knew how to load?
George Flores: Oh, yeah.
Board Member: He had loaded it before?
George Flores: Yes, oh yes.
The Chairman: And he knew he was supposed to load it at night?
George Flores: Yes he did.
Board Member: You wasn't around the day he was sleeping?
George Flores: No I wasn't.
Board Member: It's your testimony then that he knew what to do, he knew how to do it, he just flat out didn't do it?
Tr. Bd. Hr'g at 8-9.
The answers provided by George Flores lack any indication that he was testifying based on his own personal knowledge or observation. Indeed, the reference to getting complaints from other guys suggests the contrary.
The Board concluded:
The Referee found that the claimant's failure to meet the employer's expectations was due to such factors as lack of ability, and therefore the claimant's conduct was not willful or wanton misconduct. The Board heard testimony from George Flores and accepts this testimony. He advised the Board that the- claimant was able and knowledgeable concerning his duties, but that he performed poorly because of lack of effort. Based on this testimony, he Board finds that the claimant's poor performance resulted from willful or wanton misconduct. The Board finds that the claimant did not try and fail. Rather, the claimant although able, did not try to do well.
Bd. Dec. at 2.
On appeal from a decision of the Unemployment Insurance Appeal Board, this Court's limited function is to determine whether the Board's conclusions are supported by substantial evidence and are free from legal error. Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Questions of conflict in testimony and witness' credibility are resolved by the fact finder, be it the Board or Referee, and not the Court. If this Court finds substantial evidence and the Board has not committed an error of law, the Board's decision must be affirmed.
General Motors v. Jarrell, Del. Supr., 493 A.2d 978, 980 (1985).
Olney v. Cooch, Del. Supr., 425 A.2d 610, 614 (1981).
Air Mod Corp. v. Newton, Del. Supr., 215 A.2d 434, 438 (1965).
Longobardi v. Unemployment Insurance Appeals Board, Del. Supr., 293 A.2d 295 (1972).
The record below does not provide substantial evidence for the Board's conclusions. There are a number of things which concern me. First, the nature of the claimant's misconduct shifted. The first papers submitted by the employer referred to insubordination, a sleeping incident, and a failure to appear for work on a Saturday. Those were the claims discussed before the Referee when Flores was present, but did not testify, and the claimant was present to respond. No mention was made of failing to load trucks in the evening for the following day. Yet, that was the specific behavior focused on by the Board Members who questioned Flores, apparently recognizing that the question of the claimant sleeping was not adequately supported by evidence since neither Ashby nor Flores had seen it. I am further concerned about the leading questions of Board Members. The questions created a record by suggesting the state of mind of the claimant. Such leading questions, particularly when not accompanied by equally precise questions about the basis of the witness's knowledge, create an appearance that impartiality may be compromised. "An essential element of an administrative hearing entitles a litigant to an impartial hearing before a non-biased agency." An agency permitted by law to hear and decide cases "must not only be unbiased, but must also avoid any appearance of bias."
Robbins v. Deaton, Del. Super., CA. No. 93A-05-001, Steele, J. (Feb. 7, 1994) (ORDER) (citing Quaker Hill v. Saville, Del. Super., 523 A.2d 947, 966 (1987), aff'd, Del. Supr., 531 A.2d 201 (1987)).
Quaker Hill, 523 A.2d at 966.
For the reasons set forth, the decision of the Unemployment Insurance Appeals Board is REVERSED and REMANDED.
SO ORDERED