Mager v. Garrett Freightlines, Inc. , 100 Idaho 469 ( 1979 )

PER CURIAM:

Ronald D. Mager was employed by Garrett Freightlines, Inc., as a dock foreman from July 5, 1975, until he voluntarily quit such employment on June 17, 1977. Prior to that employment, he had attended Idaho State University and had worked as an educator and counselor.

Mager’s application for unemployment compensation benefits was denied by both a claims examiner and an appeals examiner on the grounds that he had left his employment without good cause. Mager then wrote a letter to the Industrial Commission requesting a review, listing eight additional reasons why he felt he had good cause for leaving such employment. The Commission treated Mager’s letter as a claim for review and sent a letter advising all interested parties that, as soon as a transcript had been received by the agency, they would be given an opportunity to appear before the Commission at a hearing. Mager thereupon wrote the Commission asking that the hearing be held in Seattle, where he had just moved. The Commission wrote to Mager that it would be impossible to hold a hearing in Seattle but that if he were unable to return to Idaho he could submit his case on the record. Mager wrote back that he felt he would again lose his case if the Commission considered only the record but that he would like them to proceed with a review if his letter with the eight additional “reasons” could “be used for evidence.” He wrote that if such letter could not “be used for evidence” he would then try to get to Boise.

Thereupon, the Commission sent a notice to all interested parties advising that Mager had expressed a desire to submit his case to the Commission for decision on the basis of the existing record and his letter of appeal. The Commission stated that “[i]f any party objects to having this letter considered by the Commission in making its decision, or if any party wishes to submit written argument prior to the Commission making its decision, please do so within fifteen (15) days of the date of this letter.”

Subsequently, the Commission issued Findings of Fact and Conclusions of Law and Order which considered not only the testimony presented by Mager to the appeals examiner, but also the contents of his letter. The Commission concluded that Mager had established good cause for quitting his employment and entered an order reversing the decision of the appeals examiner.

On appeal, appellant Garrett Freight-lines, Inc., contends that the notice served upon them did not put them on notice that the Commission might determine Mager’s eligibility for unemployment compensation by considering as evidence the matters set out in the letter which had not previously been considered by either the claims examiner or the appeals examiner. Although Garrett did not receive copies of other correspondence between Mager and the Commission, it did receive a copy of the September 18, 1977, letter from Mager which the Commission considered as additional evidence. The letter was attached to the notice sent by the Commission which informed Garrett that if it objected to having the letter considered by the Commission or wanted to submit written arguments it could do so within fifteen (15) days.¹ Garrett failed to file written objections, failed to demand that Mager attest to the statements in his letter, and failed to demand any right of cross examination with regard to the same. Unlike the notice in White v. Idaho Forest Industries, 98 Idaho 784, 572 P.2d 887 (1977), the notice here sufficiently complied with I.C. § 72-713² and was fair notice of how the Commission intended to proceed. Garrett’s failure to respond constituted a waiver of its hearing rights.

We agree with appellant Garrett Freight-lines, Inc., that the letter which was submitted by Mager and considered by the Commission to augment the record consisted of unsworn statements, some of which were objectionable hearsay or conclusions reached by Mager. Garrett, however, waived objections to the competency of such evidence by failing to object thereto. In re Bowen, 95 Idaho 334, 508 P.2d 1240 (1973); Hamby v. J. R. Simplot Co., 94 Idaho 794, 498 P.2d 1267 (1972); Naccarato v. Village of Priest River, 68 Idaho 368, 195 P.2d 370 (1948); Eastern Idaho Loan & Trust Co. v. Blomberg, 62 Idaho 497, 113 P.2d 406 (1941); Hamlin v. University of Idaho, 61 Idaho 570, 104 P.2d 625 (1940).

Under Idaho Const, art. 5, § 9, and prior decisions of this Court, our review of unemployment compensation cases is limited to reviewing questions of law. In Booth v. City of Burley, 99 Idaho 229, 580 P.2d 75 (1978), we further held that even where witnesses do not appear before the Industrial Commission this Court will not independently adopt findings of fact at variance with those of the Industrial Commission provided the Commission’s findings are supported by substantial and competent evidence in the record.

Findings of the Commission included the following: Mager voluntarily quit work on June 21, 1977; his normal shift was from 3:00 p.m. to midnight; he had become dissatisfied with his work for about a year prior to quitting; management daily demanded that he complete unreasonable amounts of work with only a small crew and then demanded explanation for nonperformance; and Mager received such frequent phone calls after returning home at midnight that he had difficulty getting a night’s sleep.

The Commission properly found the facts and, applying the statutory law to those facts, determined that Mager had established good cause for quitting, thereby entitling him to benefits. In sum, the Commission, to whom the factfinding process is entrusted, found that Mager was harassed and that he was justified in leaving such employment. Accordingly, since we cannot say as a matter of law that there is no evidence substantiating that determination, we must affirm. Idaho Const., art. 5, § 9; Booth v. City of Burley, 99 Idaho 229, 580 P.2d 75 (1978).

Affirmed. Costs to respondent.

1 . Claimant Mager’s letter to the Industrial Commission inquiring whether his letter could be used as “new evidence” by the Commission in a review of the Department’s decision denying him unemployment compensation benefits read in part as follows:

“Please proceed with a review if that letter can be used as evidence. If it cannot be used please let me know and I will somehow try to get to Boise since I strongly feel I have good reason to win this case.

Sincerely, H. Ronald Mager.”

The Commission responded to Mager by letter as follows, indicating that copies of its letter and also copies of Mager’s letter were sent to appellant Garrett Freightlines and respondent Department of Employment:

“To All Interested Parties:

“This is to advise you that the claimant has expressed his desire to submit his case to the Commission for decision on the basis of the existing record and his letter of appeal, a copy of which is attached hereto. If any party objects to having this letter considered by the Commission in making its decision, or if any party wishes to submit written arguments prior to the Commission making its decision, please do so within fifteen (15) days of the date of this letter.

Very truly yours, INDUSTRIAL COMMISSION (Signed) WILL S. DEFENBACH Chairman

“Copies to:

Ronald Mager, 1049 Delano, Pocatello 83201 Garrett Freight Lines, Garrett Way, Pocatello Department of Employment, Boise”

2 . “72-713. NOTICE OF HEARINGS — SERVICE. — The commission shall give at least ten (10) days’ written notice of the time and place of hearing and of the issues to be heard, either by personal service or by registered or certified mail. Service by mail shall be deemed complete when a copy of such notice is deposited in the United States post office, with postage prepaid, addressed to a party at his last known address, as shown in the records and files of the commission.' Evidence of service by certificate or affidavit of the person making the same shall be filed with the commission.”