Anderson Motor Service, Inc. v. Review Bd. of Indiana Employment Sec. Division, 768

• Citation: 144 Ind.App. 537,247 N.E.2d 541
• Decision Date: 21 May 1969
• Docket Number: No. 1,No. 768,768,1
• Parties: ANDERSON MOTOR SERVICE, INC., Appellant, v. REVIEW BOARD OF the INDIANA EMPLOYMENT SECURITY DIVISION, William H. Skinner and Richard D. Cobb, as Members of and as constituting the Review Board of the Indiana Employment Security Division, and Jessie R. Ford, Appellees. A 125
• Court: Court of Appeals of Indiana

Page 541

247 N.E.2d 541

144 Ind.App. 537

ANDERSON MOTOR SERVICE, INC., Appellant, v. REVIEW BOARD OF the INDIANA EMPLOYMENT SECURITY DIVISION, William H. Skinner and Richard D. Cobb, as Members of and as

constituting the Review Board of the Indiana Employment

Security Division, and Jessie R. Ford, Appellees.

No. 768 A 125.

Appellate Court of Indiana, Division No. 1.

May 21, 1969.

Leland B. Cross, Jr., William R. Riggs, Ice, Miller, Donadio & Ryan, Indianapolis, for appellant.

Theodore Sendak, Atty. Gen., of Indiana, Indianapolis, for appellee Review Board.

LOWDERMILK, Presiding Justice.

This is an appeal by the Anderson Motor Service, Inc., appellant herein, from an adverse decision of the appellee Indiana Employment Security Division Review Board, granting unemployment benefits to the claimant, Jessie R. Ford, a former employee of appellant.

Ford had previously been dismissed from work by the appellant, which was accompanied by a letter of discharge. The principal reason given in the letter was extensive unexcused absenteeism.

The matter was eventually heard before a single member referee of the Review Board, who concluded that because of claimant's misconduct he was not entitled to benefits. Thereafter, an appeal was taken to the full Review Board, which reversed the referee and entered its decision that '* * * claimant was discharged but not for misconduct in connection with his work' and granted claimant unemployment benefits.

It is well established that the decision of the Review Board is conclusive and binding as to all questions of fact and this court may not disturb the decision unless reasonable men would be bound to reach the opposite conclusion from the evidence in the record. Achenbach v. Review Bd. of Ind. Emp. Sec. Div. (1962), 242 Ind. 655, 179 N.E.2d 873; Bootz Mfg. Co. v. Review Board of Ind. Emp. Sec. Div. (1968), Ind. App., 237 N.E.2d 597; Massengale v. Rev. Bd. of Ind. Emp. Sec. Div. (1961), 132 Ind.App. 587, 178 N.E.2d 557.

Thus, the question presented is whether or not the claimant, Ford, was discharged for misconduct in connection with his work and therefore ineligible for unemployment benefits within the meaning of Acts 1947, ch. 208, § 1501, p. 673, as amended, being § 52--1539, Burns' 1964 Replacement.

The undisputed evidence pertinent to the issue involved reveals that Ford had been employed with appellant from July 3, 1965 to June 26, 1967; that during the first 95 weeks of employment he had worked 31 full regular work weeks, leaving a total of 64 weeks that he was absent or worked short hours. All told, Ford was absent from work on 97 days and failed to work the entire day on 34 other occasions. The general manager testified that a high percentage of the absences were unexcused. He further stated that Ford received numerous oral warnings, letters of warning and a three-day disciplinary lay-off. Under appellant's 'code of record', in order to have an excused absence an employee must notify the company at least one hour prior to starting time and have an acceptable excuse for such absence. The claimant, Ford, submitted evidence that during the above-mentioned period he was off three weeks with bruised ribs, two weeks with a broken thumb and four or five days with a cracked knee. The remaining 60-odd days of absences are not accounted for by Ford or anyone else.

Despite repeated warnings by both appellant and the union, claimant continued to be absent from work. As a result of the absenteeism claimant was given a 'notice of discharge' on February 6, 1967, but was allowed to continue to work pending a hearing of his case by the union.

Such hearing was held on March 14, 1967, with claimant present, together with representatives of appellant and Teamsters Union Local No. 135. After reviewing claimant's attendance record the parties agreed to reduce the discharge to a 'final warning' and sent to claimant a letter incorporating the conditions of such final warning, which letter provided, in relevant part, as follows:

'You will be left on the job with full seniority, provided you do not miss any more work unless you have a definite substantiated reason and proper notification acceptable to the company.

'Govern yourself accordingly, as this is * * * your FINAL WARNING subsequent to being discharged. * * *'

The record discloses that in the next three month period Ford was absent from work 14 additional days, most of which were for medical reasons and were excused. Then, on June 24, 1967, Ford was again absent but gave no reason whatsoever. Two days later appellant sent him a letter of final discharge. Although Ford then filed a grievance pursuant to a collective bargaining agreement provision between appellant and the union, a joint committee of representatives of management and the union dismissed the grievance and upheld the discharge.

Acts 1947, ch. 208, § 1501, p. 673, as amended, being § 52--1539, Burns' 1964 Replacement, provides, in part:

'An individual shall be ineligible for waiting period or...