Barnett v. Review Bd. of Indiana Employment Sec. Division

• Decision Date: 21 April 1981
• Docket Number: No. 2-980A295,2-980A295
• Citation: 419 N.E.2d 249
• Parties: Richard P. BARNETT, Appellant, v. REVIEW BOARD OF the INDIANA EMPLOYMENT SECURITY DIVISION, William H. Skinner, David L. Adams and Paul M. Hudson, as members of and as constituting the Review Board of the Indiana Employment Security Division, and Ivy Hill Packaging Co., Appellees.
• Court: Indiana Appellate Court

Page 249

419 N.E.2d 249

Richard P. BARNETT, Appellant, v. REVIEW BOARD OF the INDIANA EMPLOYMENT SECURITY DIVISION, William H. Skinner, David L. Adams and Paul M. Hudson, as

members of and as constituting the Review Board of the

Indiana Employment Security Division, and Ivy Hill Packaging

Co., Appellees.

No. 2-980A295.

Court of Appeals of Indiana, Second District.

April 21, 1981.

Nancy E. Hale, Legal Services Organization of Indiana, Terre Haute, for appellant.

Theodore L. Sendak, Atty. Gen., George B. Huff, Jr., Deputy Atty. Gen., Indianapolis, for appellees.

SHIELDS, Judge.

Appellant, Richard Barnett, appeals the denial of his claim for unemployment compensation by the Review Board of the Indiana Employment Security Division (Board).

Barnett was fired from his job at Ivy Hill Packaging (Ivy Hill) on April 25, 1980. The Board denied Barnett's unemployment compensation claim on the basis Barnett had violated a known posted rule prohibiting dangerous weapons on the premises.

We reverse and remand.

Barnett raises six issues on appeal:

(1) Did the Board err by failing to make a finding as to whether the work rule which Barnett allegedly violated was "uniformly enforced" by Ivy Hill?

(2) Did the Board err by failing to make a finding as to whether Barnett "knowingly violated" the Ivy Hill work rule?

(3) Did the Board commit an abuse of discretion by concluding Barnett had brought a "dangerous weapon" to the plant?

(4) Did the Board err when it refused Barnett's request to submit additional evidence?

(5) Is the Board estopped from asserting the untimely filing of Barnett's request to submit additional evidence because Board employees represented to Barnett that he could file the request after he filed his request for appeal?

(6) Was Barnett denied procedural due process by Board regulations which require notice of hearing be mailed to claimant only five days before the hearing and which require a request for continuance be made three days before the hearing?

The Board's findings of fact read:

"Claimant was employed by this employer from November 22, 1976 through April 25, 1980, as a straight cutter. Claimant earned $7.38 per hour for a thirty-six hour work week. The evidence shows that there was a known posted company rule against bringing a dangerous weapon into the plant. Claimant was aware of this rule. On April 24, 1980, claimant was approached by his foreman, and a handgun was found in his coat pocket in the plant. The evidence differs as to whether or not the gun was loaded and as to whether or not the gun was operable. Employer's foreman testified he did not know if the gun was loaded and that he did not check the gun to see if it were operable. Claimant testified that the gun was not loaded and that it was not operable. Claimant is a member of the UPIU Union, Local 154, and is the current president. Claimant has filed a grievance with the union the results of which are still pending. Claimant was discharged by the employer later in the day of April 24, 1980, for violation of the posted company rule."

ISSUE I

IC 22-4-15-1 (Burns Code Ed., Supp.1980) provides a claimant shall not be eligible for unemployment compensation if he is discharged for just cause. Discharge for just cause is defined to include separation initiated by the employer for "knowing violation of a reasonable and uniformly enforced rule of an employer."

Barnett was ostensibly fired for his violation of a rule which prohibited dangerous weapons in the plant. The Board, however, failed to make a finding that this rule was "uniformly enforced." The Indiana Court of Appeals has recently held:

"(W)hen an administrative board makes no finding as to some of the material issues, and when the claimant has properly preserved the error by designating the decision contrary to law, the reviewing court no longer may affirm by merely determining whether there was some evidence to support an award. Rather, the Supreme Court characterized such rubber stamp actions of an appellate level court as an invasion of the province of the full administrative board. In other words, the Court held that an appellate court should not undertake to find ultimate facts; the cause should be remanded to the board for findings."

Wolfe v. Review Board of the Indiana Employment Security Division, (1978) Ind.App., 375 N.E.2d 652 at 655. See also, Kuntz v. Review Board of the Indiana Employment Security Division, (1979) Ind.App., 389 N.E.2d 342.

The failure of the Board to make a specific finding on a material issue, therefore, requires that we remand the case for further findings.

ISSUE II

Barnett also argues the Board failed to make a finding that he "knowingly" violated the rule. Barnett claimed at the hearing that he was unaware the gun was in his jacket pocket. Thus, although the Board did make a finding that Barnett knew of the rule, we hold the Board must also make a finding as to whether Barnett "knew" of his conduct which violated the rule. This result is mandated by the wording of the statute which requires a "knowing violation" of a rule rather than merely a violation of a known rule, and by the holdings in several Indiana cases which state that misconduct which will justify the discharge of an employee so as to make the employee ineligible for unemployment compensation is "wanton or willful disregard for the employer's interests, a deliberate violation of the employer's rules, or a wrongful intent." (emphasis added) Merkle v. Review Board of the Indiana Employment Security Division, (1950) 120 Ind.App. 108, 112, 90 N.E.2d 524; See also, White v. Review Board of the Indiana Employment Security Division, (1972) 151 Ind.App. 426, 280 N.E.2d 64.

ISSUE III

Barnett next urges us to find error because the Board abused its discretion in interpreting the phrase "dangerous weapon" as it is used in the employer's rule. Barnett's argument misconceives the issue and consequently we find no abuse. The Board has no discretion in interpreting the phrase "dangerous weapon" as it is used in the rule. The Board's responsibility vis-a-vis the rule is to determine if it is reasonable and if it is uniformly enforced, neither of which are discretionary functions. ¹

ISSUE IV

Barnett's fourth alleged error is that the Board erred in refusing to allow him to introduce additional evidence. Notice of the referee's decision was mailed to Barnett on June 18, 1980. Barnett filed his Request for Appeal on July 1, 1980 and his Application for Leave to Introduce Additional Evidence (Application) on July 3, 1980. Barnett's argument that his Application was timely filed because it was filed within fifteen (15) days after he was notified of the decision of the referee is without merit. Contrary to Barnett's argument, the rules ² which he cites are clear: they provide a claimant has fifteen (15) days after notification of the decision of the referee to appeal to the Board and that the Application must be filed with the request for appeal. Accordingly, the Application, as well as...