                   IN THE COURT OF APPEALS OF TENNESSEE
                              AT KNOXVILLE
                              June, 2000 Session

    WATAUGA INDUSTRIES, INC. v. HARRY W. GREENWELL, et al


                   Appeal from the Chancery Court for Carter County
              No. 23028, 31265 and 21971  G. Richard Johnson, Chancellor


                                     FILED JULY 19, 2000

                                No. E1999-00699-COA-R3-CV



Watauga Industries, Inc. appeals three cases consolidated in the Carter County Chancery Court
involving unemployment benefits awarded to certain of its employees. In the first case
(“Greenwell”), the Board of Review of the Department of Labor, Employment Security Commission,
found the employees were entitled to unemployment compensation after they were locked out of the
plant by Watauga during a labor dispute. The Chancery Court upheld that decision. Watauga appeals
the Chancery Court’s judgment. The Chancery Court lacked jurisdiction to hear Watauga’s Petition
for Certiorari because Watauga did not file its Complaint in Chancery Court within the statutorily
mandated 30 days after the decision of the Board of Review became final. Therefore, we vacate the
Chancery Court’s judgment in Greenwell and dismiss Watauga’s Petition. In the remaining two
cases (“Anderson”), the Board of Review found the employees refused Watauga’s reasonable offers
of return to work, and terminated their unemployment benefits as of the date of that refusal. The
Chancery Court reversed and held that the employees were entitled to continued benefits because
Watauga’s offer of a return to work was not reasonable. Watauga appeals the Chancery Court’s
decision. We hold that the Chancery Court erred in reversing the Board’s decision as the record
contains substantial and material evidence supporting the Board’s decision, and, therefore, we
reverse the decision of the Chancery Court in Anderson.

          Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
                  Vacated in Part, Reversed in Part; and CaseRemanded.

D. MICHAEL SWINEY , J., delivered the opinion of the court, in which HERSCHEL P. FRANKS, J.,
joined, and HOUSTON M. GODDARD , P.J., filed a concurring opinion.

Michael S. Lattier, Kingsport, for the Appellant, Watauga Industries, Inc.

D. Bruce Shine, Kingsport, for the Appellees, Harry W. Greenwell, et al.

Paul G. Summers and Douglas Earl Dimond, Nashville, for the Appellee, Commissioner of the
Tennessee Department of Labor and Workforce Development.

                                                       OPINION

                                                     Background

               During the first week of January 1994, Watauga Industries, Inc. (“Watauga”)1 and
its employees’ union, the United Textile Worker of America (“Union”), attempted to negotiate a new
labor contract to replace the contract that was due to expire on Monday, January 10, 1994. On
Saturday, January 8, 1994, the Union voted not to accept Watauga’s offered contract. On Sunday,
January 9, 1994, Watauga notified its employees that the plant would be closed for one day for
maintenance, beginning at 11:00 that evening, through Monday, January 10, 1994, the last day of
the expiring contract. Watauga then shut down the plant during that period.

                 On Monday, January 10, 1994, while the plant was shut down, the Union voted to
strike. In a letter to striking employees dated January 12, 1994, Watauga unilaterally implemented
the first year of its final proposal and informed the employees that they would be permanently
replaced if they did not return to work within two days. The Union and Watauga exchanged
correspondence. While some of the employees returned to work, many did not, and Watauga hired
permanent replacements for those who did not return. Those workers who did not return to work
applied for unemployment compensation benefits from the Department of Employment Security
(“the Department”).

                  The union contract specified that a plant closing for economic reasons could not be
considered a lockout. Watauga contended that the plant closing on January 9, 1994 was occasioned
by economic reasons and therefore was not a lockout. The Department’s initial determination was
that the closing was a lockout, and the employees were awarded unemployment benefits. Watauga
appealed the initial determination to the Appeals Tribunal. At the hearing before the Appeals
Tribunal, the President of Watauga testified that he closed the plant for several reasons, including
vandalism, the need to replace missing formulas that had disappeared during the vandalism and
which were essential for production, and the Union’s vote not to accept the new contract. He argued
again that the reasons for closing were economic, not a lockout. Various employees testified that
damaged equipment at the plant predated the labor dispute and was the result of chronic and routine
maintenance problems, not vandalism, and that the plant closing was a lockout. The Appeal
Tribunal, in its decision of March 28, 1994, which was adopted and affirmed by the Board of Review
on August 23, 1994, found:

                   FINDINGS OF FACT: The 116 claimants in this case are members
                   of the United Textile Workers of America, Lee’s Dye Workers Local
                   843 who were last employed at Watauga Industries. The existing
                   contract between the union and the employer was scheduled to expire


       1
           Watauga states in its appellate brief that the com pany is no lon ger in business.


                                                           -2-
at midnight on Monday, January 10, 1994, and negotiations on a new
contract had been taking place since December, 1993. On January 7,
1994, negotiations occurred at which the employer presented its final
offer. No consideration was being given to an extension of the
existing contract. On January 8, 1994, the union voted to reject that
offer. The employer then decided to close the plant for the last day
of production that remained under the existing contact [sic]. This
action would not have been taken if the union had voted to accept the
new contract. The next scheduled shift was to begin at 10:50 p.m. on
January 9, 1994. Employees were notified that the plant would be
closed on January 10, 1994, including the third shift on January 9,
1994, to avoid further theft of company property and/or vandalism.
The employer’s attorney also notified the union’s international
representative that the employer did not consider this to be a lockout.
On January 10, 1994, the union voted on the question of whether to
accept the employer’s proposal, or strike at the expiration of the
contract. The vote was to strike. The union’s representative
informed the employer’s general manager of the vote and asked
whether the employees should report to work at 10:50 p.m. on
January 10, 1994 for the period of time remaining under the existing
contract. The general manager informed him that the employees
should not report for work for that time. The employer would have
resumed operations if the union had accepted the proposal. On
January 11, 1994, the employer notified union members that it was
implementing the first year of its final proposal, and gave the
employees two days from the receipt of the notice to return to work
or risk being permanently replaced. The employer began hiring
replacement workers after those two days. On January 23, 1994, the
union began offering to accept the terms of the employer’s final
proposal. The employer informed the union that it considered the
replacement workers that had been hired to be permanent employees.
On January 29, 1994, the union voted to accept the employer’s final
proposal. The employer agreed to re-call eleven employees and to
place the remainder on a preferential re-call list. The union did not
accept these terms and picketing has continued.

CONCLUSIONS OF LAW: Under TCA § 50-7-303(a)(4) an
individual is disqualified from receiving unemployment
compensation benefits “For any week with respect to which the
commissioner finds that his total or partial unemployment is due to
a labor dispute, other than a lockout which is in active progress at the
factory, establishment, or other premises at which he is or was last
employed.” The Appeals Tribunal finds that on January 9, 1994, the
employer shut down its operations and conditioned a resumption of

                                  -3-
               work on the employee’s acceptance of a contract proposal which
               differed from the existing contract. This is a lockout within the
               meaning of TCA § 50-7-303(a)(4) and is not disqualifying. The
               subsequent strike vote does not change the nature of this dispute in
               view of the fact that the employer continued to condition a return to
               work on the acceptance of its proposal. While a substantial amount
               of evidence was received concerning the motivations of the parties
               with respect to actions that were taken at various points during these
               events, the Appeals Tribunal does not find the evidence to be
               sufficiently convincing or persuasive to alter the essential facts set
               forth above. The agency decisions which approved these claims are
               affirmed.

                On August 24, 1994, Watauga wrote a letter to the local office of the Department,
notifying it that “the following individuals were given offers to return to their same jobs, on the
indicated dates, and refused those offers.” The letter listed 116 employees, the dates they were
offered returns to work, and stated that “the benefits paid to those employees should be recovered
from them and appropriately credited to Watauga Industries’ account.”

                 On August 26, 1994, Watauga filed a Petition to Rehear, alleging that “new and
additional evidence has occurred since the March 28, 1994 decision of the Appeals Tribunal in this
cause;” i.e., that “unconditional offers of reinstatement of striking employees at Watauga Industries,
Inc. have been made by the Company.” Watauga listed the names of the employees and the dates
each was offered reinstatement, and averred that of the 116 employees who were offered
reinstatement, only ten went back to work. Watauga argued that the refusal of the employees to
return to work occurred following the March 28, 1994 decision of the Appeals Tribunal, and has “a
direct bearing on the eligibility of the claimants in this cause, which could have been neither known
nor anticipated by the Appeals Tribunal at the time of its [March 28, 1994] decision.” Watauga
asked the Board of Review to grant further hearing. The Petition to Re-Hear nowhere mentions the
August 23, 1994 decision by the Board of Review.

               The Board of Review denied the employer’s Petition to Re-Hear on October 11, 1994.
The denial stated, in part:

               The issues raised by the employer in its petition to rehear are new
               eligibility issues that were not before the Agency or this board
               previously in the record of this appeal. To this point, the issue in this
               appeal has been whether the claimants were unemployed due to a
               “lockout” as provided in T.C.A. § 50-7-303 (a) (4). The employer
               now seeks to present evidence that the claimants should be
               disqualified because of an offer to return to work after the time they
               filed these claims for employment benefits. We believe this is a
               sufficiently separate issue that it should be adjudicated separately
               with its own accompanying appeal rights. Therefore, the employer

                                                 -4-
               should raise this separate issue with the Agency at a local Agency
               office for adjudication.

               By letter dated January 10, 1994 [sic - 1995], Watauga, by counsel, informed the

outgoing and incoming Commissioners of the Department:

               The purpose of this letter is to bring to your attention our very late
               receipt on January 5, 1995, of two separate decisions made by the
               Board of Review in the above referenced matter. These decisions by
               the Board of Review were dated August 23, 1994 and October 11,
               1994. [Emphasis in original]

Watauga recited a history of the case and then informed the Commissioners:

               As a result of never having received the Board’s decisions prior to
               January 5, 1995, Employer and its counsel expect the Tennessee
               Department of Employment Security will treat this date as the date of
               mailing for both decisions: one being that the claimants should be
               qualified for benefits due to a “lockout,” the second being the Board’s
               denial of the request for rehearing to present evidence that the
               claimants have been given numerous opportunities to return to work
               and have refused to do so. Watauga Industries intends to file for
               judicial review of the Board’s decision in accordance with T.C.A. §
               50-7-304(i) immediately.

                Watauga filed a Petition for Certiorari in the Chancery Court for Carter County on
January 20, 1995, asking for review of the decision of the Board of Review. Watauga conceded in
that Petition that “this Petition should normally have been filed earlier,” but stated that “neither
[Watauga] nor their counsel received said decisions,” and that “this Petition is therefore timely
filed.” Watauga filed the Affidavits of Sam Acquaviva, Secretary/Treasurer, and William E.
Andersen, counsel for Watauga, stating that they “had received no correspondence whatsoever from
the Tennessee Department of Employment Security regarding these two decisions (i.e., the Board
of Review’s adoption of the Appeals Tribunal’s decision and the Board of Review’s denial of
Watauga’s Petition to Re-Hear) prior to January 5, 1995.”

                The incoming Commissioner of the Department wrote a letter to counsel for Watauga
on January 27, 1995 informing him that the Board of Review had advised the Commissioner
concerning Watauga’s complaints about (1) the Department’s failure to consider the issue of offers
of reinstatement to the employees, and (2) the charge that counsel for Watauga did not receive the
decisions of the Board of Review mailed on August 23, 1994 and October 11, 1994 until January
5, 1995, and asking that the Agency treat January 5, 1995 as the date of mailing of those two
decisions for purposes of a petition for judicial review. The Commissioner informed counsel for
Watauga:

                                                -5-
               The Board of Review records indicate that these decisions were
               timely mailed to you and your client; therefore, if you file for judicial
               review, they have indicated to me that they will not concede that it is
               timely. They prefer to have the Court consider all the facts and
               decide the issue.

                On April 13, 1995, Harry Greenwell, et al, (employees) filed an Answer, first
asserting that Watauga failed to file its appeal of the decision of the Department in a timely manner
as required by T.C.A. § 50-7-304(i)(1). The employees then answered that Watauga had not alleged
facts sufficient to demonstrate that the decision of the Board of Review was arbitrary, capricious,
or characterized by abuse of discretion, and that the decision of the Board of Review was supported
by substantial and material evidence and a reasonable basis in law. Thereafter, several continuances
in the case were granted by the Trial Court.

                 On November 13, 1995, the Commissioner filed its Answer, first asserting that
Watauga failed to file its Petition for Writ of Certiorari within the time frame provided by T.C.A.
§ 50-7-304(i)(1), then further answering Watauga’s Petition. On March 25, 1996, the Commissioner
filed a Motion to Dismiss the Petition for Writ of Certiorari “on account of the failure of the
Petitioner to timely file the appeal as required by T.C.A. § 50-7-304(i).” In its accompanying
Memorandum of Law, the Commissioner argued that “[t]he deadlines for seeking administrative and
judicial review of the Agency decisions contained in T.C.A. § 50-7-304(b)(1), (c)(1), (h) and (i) are,
as a matter of law, jurisdictional in nature and cannot be waived by the Court.” The following day,
March 26, 1995, the Commissioner filed a Motion asking the Trial Judge to recuse himself, and the
employees filed a Trial Brief insisting, in part, that Watauga’s Petition for Certiorari could not be
maintained in Chancery Court because the time limitations within which to file the Petition were
jurisdictional, proof of mailing such notices was sufficient, and proof of receipt was not required.
On March 29, 1995, the Department employee responsible for mailing the Department’s decisions
filed an Affidavit stating that he mailed the Board of Review decisions to Watauga and its counsel
on August 23, 1994 and October 11, 1994. On April 3, 1996, Watauga filed a “Reply Brief of
Petitioner,” denying that Watauga or its counsel received the August 23, 1994 or October 11, 1994
notices from the Department. The following day, Watauga filed a document styled “Brief of
Petitioner in Opposition to the Motion of the [Department] to Dismiss the Petition for Writ of
Certiorari.” On April 29, 1995, the Trial Judge recused himself from the case, and on July 11, 1995,
the parties filed an “Agreed Order of Continuance on Motion of the Court.” That Order, signed by
a new Chancellor, stated:

               The Court will review the record and briefs submitted in this matter
               by the parties and, if the Court determines that a hearing on this
               matter would be helpful to it in reaching a decision, the Court will
               order a hearing at that point in time. If, however, the Court
               determines that a hearing is unnecessary, it will decide this matter on
               the briefs submitted.

               The Chancellor joined this case, “Greenwell”, with the two cases, “Anderson”, which

                                                 -6-
we discuss below and rendered his Memorandum Opinion and Order in all cases on January 8, 1999.
As to this case, Greenwell, the Chancellor’s Memorandum Opinion and Order did not address the
issue of timeliness of Watauga’s Petition for Writ of Certiorari. The Chancellor affirmed the
decision of the Board of Review that the employees were entitled to benefits and decided the other
two cases as discussed below.

                The second and third cases, “Anderson”, consolidated in this appeal involve the
employees’ refusal to return to work after the lockout. As instructed by the NLRB, Watauga sent
letters to the employees between May 17, 1994 and August 10, 1994, offering to return them to
work. It appears from the record that only ten employees returned to work. Watauga then informed
the Department that the non-returning employees were no longer entitled to unemployment benefits
because of their refusal to return to work. The Department sent questionnaires to the employees
about the reasons for their failure to return to work. The employees answered that they did not return
to work because they had no union contract and feared violence on the picket line and retaliation.
The Department determined that the employees who did not return to work were no longer entitled
to unemployment benefits because they had refused an offer of suitable work. The Appeals Tribunal
conducted a hearing on April 6, 1995 on the issue of whether the claimants had refused, without
good cause, an offer of suitable work, pursuant to T.C.A. § 50-7-303(a)(3). The Appeal Tribunal
mailed its decision to the 58 claimants on May 26, 1995, reversing the Department’s determination
and granting benefits to the claimants. Watauga then appealed the decision of the Appeals Tribunal
to the Board of Review, which reversed the Appeals Tribunal and denied benefits to the claimants.
The Board of Review held:

               FINDINGS OF FACT: After carefully considering the entire record
               in this case, the Board of Review finds that the facts found by the
               Appeals Tribunal accurately summarize the circumstances leading to
               this claimant’s separation from employment. We hereby adopt them
               for the purposes of this decision. Those findings were: As of May 5,
               1994, the employer was instructed by the NLRB in a memo
               designated as a step toward settling a complaint to offer immediate
               recall to their former jobs to 22 employees. They were further
               instructed to make a new offer to the next employee in the seniority
               eligibility list if the offer was rejected, or there was no response
               within two weeks. On May 17, 1994, the employer sent twenty-two
               employees letters. June 1, 1994, twenty more employees were sent
               letters; June 15, sixteen letters were sent; June 29, thirteen letters
               were sent; July 13, thirteen letters were sent; July 27, sixteen letters
               were sent, and August 10, 1994, sixteen letters were sent. Thirteen
               employees responded and returned to work. The remaining
               employees received the letters. They did not respond because they
               understood no contract was signed between the employer and the
               union. This dispute was hostile and bitter, and there was ongoing
               litigation and involvement with the NLRB. These specific letters
               offering a return to former jobs followed two earlier more general

                                                 -7-
                   offers, one January 12, 1994, and one February 8, 1994. Claimants
                   understood from those earlier letters they had been replaced by
                   permanent replacement employees and were no longer employed.
                   They also understood in accepting this offer, they would have to cross
                   the picket line and would be working in an ordinary at will status
                   subject to discharge without cause or recourse. They were advised by
                   union officials not to accept the offer.

                   CONCLUSIONS OF LAW: The Board of Review concludes that the
                   evidence is sufficient to support that the claimants refused an offer of
                   suitable work as contemplated by T.C.A. § 50-7-303(a)(3). The
                   National Labor Relations Board required that the employer make this
                   offer to reinstate the claimants to their former positions. The
                   evidence in the record does not support that the circumstances were
                   so bad that the jobs would be unsuitable.2

              As stated, the three cases were consolidated in the Chancery Court for Carter County,3
which then had before it the Board’s decision to award unemployment benefits to the employees
because of the lockout and the Board’s decision thereafter to terminate those benefits of the
employees who refused an offer of suitable work. As previously stated, the Chancellor reversed the
Board in Anderson and found that the initial award of benefits to the claimants was proper and that
Watauga had not offered the employees a return to suitable work.4

                On August 5, 1999, Watauga appealed to this Court. The Attorney General filed a
Notice of Appearance representing the Department in this appeal and shortly thereafter filed an
agreed Motion and Memorandum of Law requesting that the entire record of the Department be filed
in this appeal.


                                                       Discussion

         2
          The Appeals Tribunal’s decision had contained the exact same “Findings of Fact” section, but with the
opposite result.

         3
          One claimant, Wayne F. Arnold, filed his complaint in Washington County Chancery Court on November
25, 1996. T he rest of the claiman ts filed a com plaint on th at same d ate in Carter C ounty C hancery Court. The Carter
Chancery Court filed an Order consolid ating all three cases, i.e., the Arnold appeal of the termination of benefits, the
remaining em ployees’ app eal of the termination of benefits, and the em ployer’s appe al of the award o f benefits.
         4
            The Chancellor’s M emorand um wa s unclear as to disposition, resulting in requests by the parties for a
clarificatio n. The Chancellor then issued a revised Memorandum which restated the facts the Court had found but
clarified the disposition by ordering that “the Board of Revie w is affirm ed in Civ il Action n umbe r 21971 (Carter Co unty
Chancery Court) an d reverse d in Civil Action number 23028 (Carter County Chancery Court) and Civil Action number
31265 (Wash ington C ounty C hancery Court at Jo hnson C ity.) The P etitioners sha ll receive the unem ploym ent bene fits
to which they are entitled.”


                                                            -8-
                The Trial Court had before it three decisions of the Department of Labor’s Board of
Review. The statutory standard of judicial review of the decisions of the Department’s Board of
Review provides that the Trial Court can reverse, remand or modify the decision of the Board, if the
rights of the Petitioner were prejudiced because the administrative findings, inferences, conclusions
or decisions were:

       (A)     In violation of constitutional or statutory provisions;

       (B)     In excess of the statutory authority of the agency;

       (C)     Made upon unlawful procedure;

       (D)     Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted
               exercise of discretion; or

       (E)     Unsupported by evidence which is both substantial and material in the light of the
               entire record.

                                             * * *
               (3) In determining the substantiality of evidence the chancellor shall
               take into account whatever in the record fairly detracts form its
               weight, but the chancellor shall not substitute the chancellor’s
               judgment for that of the board of review as to the weight of the
               evidence on questions of fact. No decision of the board shall be
               reversed, remanded or modified by the chancellor unless for errors
               which affect the merits of the final decision of the board.

               (4) . . . .An appeal may be taken from the judgment and decree of
               the chancery court having jurisdiction of these controversies to the
               court of appeals of Tennessee, in the same manner, but not
               inconsistent with the provisions of this chapter, as provided in other
               civil cases.

T.C.A. § 50-7-304(i). Of these five grounds, only subsection (E) is at issue. Therefore, in reviewing
the Board of Review’s decisions, we are limited, as was the Trial Court, to a determination of
whether there is substantial and material evidence in the record to support the Board’s decision.
Substantial and material evidence consists of relevant evidence which a reasonable mind might
accept to support a rational conclusion and which furnishes a reasonably sound basis for the action
being reviewed. Frogge v. Davenport, 906 S.W.2d 920, 922 (Tenn. Ct. App. 1995). If the record
contains such evidence, we are limited to a review of the questions of law presented. Id.

                Watauga appeals the Chancery Court’s affirming the Board’s decision in Greenwell
and its finding “that a lockout existed at the plant when the employees went out on strike.” Watauga,

                                                -9-
in Anderson, appeals the Chancery Court’s “overturning the Board of Review’s decision
disqualifying claimants for benefits based on their refusal to accept offers of suitable work.”

                 The Commissioner of the Department of Labor asserts that “this Court lacks
jurisdiction to entertain the Greenwell appeal [the first case] because Watauga failed to timely file
a petition for certiorari in the Chancery Court seeking judicial review of the Board’s decision.” The
Commissioner then argues that the Board of Review’s decisions in both Greenwell and Anderson
“should be affirmed because they are supported by substantial and material evidence and have a
reasonable basis in the law.”

                The employees do not address the timeliness issue raised by the Department. They
argue that the decisions of the Chancery Court should be affirmed.

                We first address the Department of Labor’s issue that the Chancery Court had no
jurisdiction to hear Watauga’s Petition for Certiorari in Greenwell because it was not timely filed
as required by T.C.A. § 50-7-304. The employees raised this objection in their Answer to
Watauga’s Petition in the Trial Court, but not on appeal. The Department raised the objection in
their Answer to the Petition and thereafter, both in the Trial Court and this Court. The Trial Court
never specifically ruled on the objection to its jurisdiction. If we find this argument to have merit,
then Watauga’s Petition in the Chancery Court seeking review of the Board’s determination that a
lockout occurred must be dismissed, and the Board of Review’s decision in Greenwell is final.
T.C.A. § 50-7-304(h) and (i) provide, as pertinent:

               (h)     APPEAL TO COURTS. Any decision of the board, in the
                       absence of any application by any interested party for
                       rehearing thereof, shall become final ten (10) calendar days
                       after the date of mailing of the written notification of the
                       decision to the last known address of each interested party or
                       within ten (10) calendar days after the date the written
                       notification of the decision is given to each interested party,
                       whichever occurs first.

               (i)     COURT REVIEW: (1) Within thirty (30) days after the
                       decision of the board has become final, any party aggrieved
                       thereby may secure judicial review thereof by filing a petition
                       for judicial review in the chancery court of the county of such
                       party’s residence against the commissioner for review of such
                       decision.

               Watauga, while conceding that its petition for judicial review was not timely filed as
prescribed in T.C.A. § 50-7-304(h), (i), argues that its Petition should be considered as timely filed
under Rule 6.02, Tenn. R. Civ. P., since neither Watauga nor their counsel received the decisions
of the Board of Review until after the time for filing a Petition for Review in Chancery Court had
passed. Rule 6.02 provides:

                                                -10-
               Rule 6.02 Enlargement
                       When by statute or by these rules or by a notice given
               thereunder or by order of court an act is required or allowed to be
               done at or within a specified time, the court for cause shown may, at
               any time in its discretion . . . (2) upon motion made after the
               expiration of the specified period permit the act to be done, where the
               failure to act was the result of excusable neglect . . . .Provided, this
               subsection shall not apply to the time provided in Tennessee Code
               Annotated Section 27-312 for praying an appeal and filing appeal
               bond, nor to the time provided in Tennessee Code Annotated Section
               27-111 for filing a bill of exceptions.

                The Department responds that “the time requirement for filing a petition for certiorari,
like the time requirement for filing a notice of appeal to the Court pursuant to T.R.A.P. 4(a), is
mandatory and jurisdictional . . . .this rule is absolute and inflexible.” We find support for this
position in a recent decision of our Supreme Court. In Schering-Plough Healthcare Products, Inc.
v. State Board of Equalization, 999 S.W.2d 773 (Tenn. 1999), a property owner filed a petition
seeking judicial review of the Board’s decision upholding a county tax assessment. The Chancery
Court of Shelby County dismissed the petition, finding in part that the statute which establishes a
60-day time limit for filing a petition for judicial review of administrative actions, T.C.A. § 4-5-
322(b), also requires the petitioner to serve that petition upon respondent within 60 days. The Court
of Appeals reversed, holding that the 60-day time limit applies to the filing of the petition but does
not require that it be served upon all parties within 60 days. The Supreme Court affirmed the
decision of the Court of Appeals. The Supreme Court’s reasoning recited familiar rules of statutory
construction:

                In resolving the issues in this appeal, we are guided by the following
                general rules of statutory construction. The role of this Court in
                construing statutes is to ascertain and give effect to legislative intent.
                Legislative intent is to be ascertained whenever possible from the
                natural and ordinary meaning of the language used, without forced or
                subtle construction that would limit or extend the meaning of the
                language. If the legislative intent is expressed in a manner devoid of
                contradiction and ambiguity, there is no room for interpretation or
                constructions, and courts are not at liberty to depart from the words
                of the statute. Where the language contained within the four corners
                of a statute is plain, clear, and unambiguous, the duty of the courts is
                simple and obvious, “to say sic lex scripta, and obey it.” [Citations
                omitted.]

Schering-Plough v. State Bd. of Equalization, 999 S.W.2d at 775-776. In holding that the Petition
for Review in that case could be maintained because it was filed, although not served, within 60
days, the Supreme Court held that the plain language of the statute required only that the petition for
review be filed within sixty days after entry of the final agency order, and “where the language

                                                  -11-
contained within the four corners of a statute is plain, clear and unambiguous, courts are not at
liberty to depart from the language of the statute. Judicial construction simply is not appropriate.”
Id. at 777.

                 Significantly for our purposes, the Supreme Court also stated in Schering-Plough that
“we agree with the Court of Appeals that a petition for review is comparable to a notice of appeal.”
Id. at 776. It is axiomatic that a notice of appeal to the Supreme Court or Court of Appeals in civil
cases must be filed within the statutory time limit. T.R.A.P. Rule 4(a). This rule is mandatory and
jurisdictional. American Steinwinter Investor Group v. American Steinwinter, Inc., 964 S.W.2d 569
(Tenn. Ct. App. 1997). Similarly, a deadline for filing a petition for judicial review in a contested
administrative case is mandatory and jurisdictional, and failure to adhere to it is fatal for those
seeking review. Turner v. Tennessee Bd. of Paroles, 993 S.W.3d 78, 80 (Tenn. Ct. App. 1999);
United Steelworkers of America v. Tennessee Air Pollution Control Bd., 3 S.W.3d 468, 472 (Tenn.
Ct. App. 1998); HRA, Inc. v. Tennessee Dep’t. of Commerce and Insurance, 914 S.W.2d 512, 516
(Tenn. Ct. App. 1995). Since a petition for review in the Trial Court is comparable to a notice of
appeal in this Court, the mandatory nature and jurisdictional effect of the statutory time limit set
forth in T.C.A. § 50-7-304(h), (i), which bears the same plain meaning as the time limit for a notice
of appeal, also carries the same effect. This statute clearly says Watauga’s petition for judicial
review was required to be filed within thirty days after the decision of the Board became final under
T.C.A. § 50-7-304(h), ten calendar days after the date of the mailing of written notification of the
decision. From the record before us, there is no dispute but that the Board mailed the decisions as
required by subsection (h). Accordingly, since Watauga failed to file its Petition for Review in a
timely manner, the Trial Court lacked jurisdiction to hear the appeal of the Board of Review’s
decision in Greenwell that the employees were locked out of Watauga’s premises. Therefore, we
vacate the Trial Court’s decision in Greenwell and dismiss Watauga’s Petition for Review in
Greenwell.5

                We next address Watauga’s issue that the Trial Court erred in overturning the Board’s
decision disqualifying the employees for benefits based upon their refusal to accept offers of suitable
work. The employees argue that the Trial Court’s decision is correct, as they maintain the Board of
Review’s decision in Anderson was unsupported by the evidence. The Board of Review found that
the employees failed to accept a reasonable offer to return to work and each was precluded from
receipt of continuing benefits as of his date of refusal of such work. We review the decision of the
Board for the presence of substantial and material evidence, i.e., “relevant evidence which a
reasonable mind might accept to support a rational conclusion and which furnishes a reasonably
sound basis for the action being reviewed.” Frogge at 922. Neither we nor the Trial Court have the
luxury of substituting our judgment regarding the weight of the evidence for that of the Board, even
where the evidence could support a different result. Willamette Industries, Inc. v. Tennessee
Assessment Appeals Com’n., 11 S.W.3d 142, 147 (Tenn. Ct. App. 1999). In this case, the Board of


         5
          Although not nece ssary to ou r decision, w e review ed the fac ts as found b y the Bo ard of Re view in G reenwe ll
and note, as did the Trial Court, that there is substantial and material evidence to support the decision of the Board of
Review in Green well.


                                                           -12-
Review adopted the findings of fact of the Appeals Tribunal, but reached the opposite result from
those facts. The relevant statute, T.C.A. § 50-7-303(a) provides, as pertinent:

               (a) DISQUALIFYING EVENTS. A claimant shall be disqualified
               for benefits:

               (3) If the administrator finds that the claimant has failed without good
               cause, either to apply for available, suitable work, when so directed
               by the employment office, or the administrator, or to accept suitable
               work when offered (or to return to such claimant’s customary self-
               employment, if any, when so directed by the administrator).

                                             * * *

               In determining whether or not any work is suitable for the claimant,
               the administrator shall consider the degree of risk involved to the
               claimant’s health, safety and morals . . . . Notwithstanding any other
               provisions of this chapter, no work shall be deemed suitable and
               benefits shall not be denied hereunder to any otherwise eligible
               claimant for refusing to accept new work under any of the following
               conditions:

                       (A) If the position offered is vacant due directly to a
                       strike, lockout or other labor dispute;


              As stated, the Appeals Tribunal, and the Board of Review, found the following facts
about the employees’ refusal to accept Watauga’s offer of a return to work:

               They did not respond because they understood no contract was signed
               between the employer and the union. This dispute was hostile and
               bitter, and there was ongoing litigation and involvement with the
               NLRB. These specific letters offering a return to former jobs
               followed two earlier more general offers, one January 12, 1994, and
               one February 8, 1994. Claimants understood from those earlier
               letters they had been replaced by permanent replacement employees
               and were no longer employed. They also understood in accepting this
               offer, they would have to cross the picket line and would be working
               in an ordinary at will status subject to discharge without cause or
               recourse. They were advised by union officials not to accept the
               offer.

The Appeals Tribunal, based upon its findings of fact, held that the employees’ refusal to return to
work did not disqualify them from receiving benefits.

                                                -13-
               The Board of Review, relying on those same findings of fact, held that the employees’
refusal was a disqualifying event. The Board of Review summarized, “[t]he evidence in the record
does not support that the circumstances were so bad that the jobs would be unsuitable.”

                The Trial Court reversed the decision of the Board of Review and reinstated the
decision of the Appeals Tribunal, thereby holding the employees’ refusal to return to work to be
reasonable and not a disqualifying event. The Trial Court, after quoting testimony of the employees,
recited the statutory factors, i.e., “the degree of risk involved to the claimants’ health and safety,”
T.C.A. § 50-7-303(a)(4) and that “the position offered was vacant due directly to a strike, lockout
or other labor dispute,” and concluded:

               There is substantial and material evidence in the record as a whole
               that requires granting benefits to the petitioners . . . the work was not
               suitable because the risk of harm to the health and safety of the
               Petitioners was overwhelming, and the jobs offered to the Petitioners
               were vacant due directly to a lockout.”


               In this appeal, Watauga argues:

               The Chancellor substituted his judgment for that of the Board of
               Review as to the weight of the evidence on questions of fact . . . the
               Board of Review’s determination that Claimants refused an offer of
               suitable work was based on substantial and material evidence in the
               record . . . the Chancellor fundamentally misconstrued the Standard
               of Review applicable to the case on appeal.

We agree. The Trial Court’s statement that “there is substantial and material evidence in the record
as a whole that requires granting benefits to the petitioners . . .” misconstrues the statutory
constraints upon judicial review of the Board’s decision. The question before the Trial Court, and
this Court, is not whether there was “substantial and material evidence in the record as a whole that
requires granting benefits to the petitioners,” but rather whether the Board’s findings, inferences,
conclusions, and decisions were “unsupported by evidence which is both substantial and material
in the light of the entire record.” The statutorily mandated standard of review, as set forth in T.C.A.
§ 50-7-304(i)(2) and (3), clearly requires the Trial Court and this Court to affirm the decision of the
Board of Review unless that decision is “unsupported by evidence which is both substantial and
material in the light of the entire record.” If there is substantial and material evidence that supports
the Board’s decision, it must be upheld:

                In reviewing an administrative decision, a court “shall not substitute
                its judgment for that of the agency as to the weight of the evidence on
                questions of fact.” T.C.A. § 4-5-322(h)(5). Factual issues are
                reviewed upon a standard of substantial and material evidence and not
                upon a broad, de novo review. CF Indus. v. Tennessee Pub. Serv.

                                                 -14-
               Comm’n., 599 S.W.2d 536, 540 (Tenn. 1980). Substantial and
               material evidence is “such relevant evidence as a reasonable mind
               might accept to support a rational conclusion and such as to furnish
               a reasonably sound basis for the action under consideration.” Sweet
               v. State Tech. Ins. at Memphis, 617 S.W.2d 158, 161 (Tenn. Ct. App.
               1989) [quoting Pace v. Garbage Disposal District of Washington
               County, 54 Tenn. Ct. App. 263, 390 S.W.2d 461, 463 (1965)].

Southern Railway Co. v. State Bd. of Equalization, 682 S.W.2d 196 (Tenn. 1984). We hold the
record in this case, Anderson, contains substantial and material evidence to support the findings and
decision of the Board. Accordingly, we reverse the decision of the Trial Court and reinstate the
Board’s decision in Anderson holding that the employees in this consolidated case are disqualified
from receiving unemployment benefits after the dates on which each was offered a return to work
by Watauga.

                                            Conclusion

                The judgment of the Trial Court in “Greenwell” is vacated and that case is dismissed.
The judgment of the Trial Court in “Anderson” is reversed and the Board of Review’s decision
upheld. This cause is remanded to the Trial Court for such further proceedings as may be required,
if any, consistent with this Opinion, and for collection of the costs below. The costs on appeal are
assessed one-half against Watauga Industries, Inc. and one-half against the employees in
“Anderson.”




                                              __________________________________________
                                              D. MICHAEL SWINEY, JUDGE




                                               -15-
