Bendix Corp. v. Radecki, 172A28

• Decision Date: 31 October 1973
• Docket Number: No. 172A28,172A28
• Citation: 158 Ind.App. 370,302 N.E.2d 847
• Parties: The BENDIX CORPORATION, Appellant, v. Ralph H. RADECKI, Appellee, and Review Board of the Indiana Employment Security Division et al., Appellees.
• Court: Indiana Appellate Court

Page 847

302 N.E.2d 847

158 Ind.App. 370

The BENDIX CORPORATION, Appellant, v. Ralph H. RADECKI, Appellee, and Review Board of the Indiana Employment Security Division et

al., Appellees.

No. 172A28.

Court of Appeals of Indiana, Second District.

Oct. 31, 1973.

Michael J. Stepanek, Jr., South Bend, for appellant.

Theodore L. Sendak, Atty. Gen., Darrel K. Diamond, Deputy Atty. Gen., Indianapolis, Leo J. Lamberson, South Bend, for appellees.

WHITE, Judge.

The employer (Bendix) appeals from a Review Board decision affirming a referee's decision holding that 'claimant (Radecki) was discharged, but not for proven industrial misconduct in connection with his work'. We reverse and remand for an adequate finding of facts and a decision thereon consistent with this opinion.

Initially a deputy denied benefits to Radecki on the basis of the deputy's conclusion that Radecki 'was discharged for admitted misconduct; the improper discharge of firearms is misconduct in connection with his work'. When that decision was reversed by the Referee, Bendix appealed to the Review Board which issued the following Statement of Facts, Findings and Conclusions, and Decision:

'STATEMENT OF FACTS: Claimant was a plant protection foreman ¹ for this employer approximately two years prior to his discharge on May 26, 1970, for alleged misconduct. His work shift was from 11:06 P.M. until 7:24 A.M. and his duties included patroling both inside and outside the plant. On claimant's last workday, while making his rounds at approximately 12:30 A.M., he saw a flash and heard the report of a gun followed by a thud of a bullet hitting something. Claimant stated that the report came from a dark area but he did no see anyone; that he shot five times toward the direction of the shot he heard; that, in the past, three other persons had been shot at in this particular area; that plant rules permitted an employee in his capacity to carry a weapon and also to fire it in self-defense or in defense of another person. Claimant contends that the employer was prejudiced against him because of his Polish ancestry. He stated that he had never been reprimanded by the employer except for a 60-day disciplinary layoff after an incident which occurred on September 12, 1968.

'Employer witnesses attempted to prove that there was no shot fired as contended by the claimant and that he fired his gun indiscriminately. To establish this, the employer witnesses stated that no spent shells or footprints were found the following morning in the concerned area. An employer witness stated, however, that a mark in the wall where claimant had been standing may have been caused by a bullet. The employer further attempts to base claimant's discharge on a September 12, 1968, incident when claimant allegedly pointed a gun at another employee (a gun which claimant stated was without a trigger, firing pin, hammer, or cylinder for holding bullets); also on an incident in 1969 when claimant allegedly conspired to stage fake holdups of a coin machine; and on an incident concerning an alleged tampering with an A.D.T. (an electronic reporting system).

'There is no evidence that claimant had received a warning that his job was in jeopardy for the period immediately prior to his discharge or that he received disciplinary action of any kind for the alleged incidents, with the exception of the one on September 12, 1968.

'FINDINGS AND CONCLUSIONS: The Review Board finds that claimant was a plant protection foreman (sic) approximately two years for the employer herein prior to his discharge on May 26, 1970.

'It further finds that as said plant protection foreman (sic), he was permitted to carry a weapon and use it in defending himself and others.

'It further finds that during the course of claimant's employment on May 26, 1970, he fired five shots on the premises of the employer after a shot was fired at him.

'It further finds that the employer did not deny that other incidents of shots being fired at people had occurred in the past in this same area.

'It further finds that claimant's action in firing his weapon on May 26, 1970, cannot be considered unreasonable or indiscriminate under the circumstances shown herein and such action on his part was not a wanton or wilful disregard of the employer's best interests.

'It further finds no evidence in the record to show that claimant had ever received warnings, disciplinary action, or notice that his job was in jeopardy subsequent to the disciplinary action in September 1968.

'It further finds that the employer's contention that claimant had been involved in incidents where his conduct was unbecoming a plant protection foreman (sic) can be given no merit since no action by the employer was taken at the time said alleged infractions occurred.

'The Review Board concludes that the employer has failed in its burden to prove misconduct on the part of the claimant herein inasmuch as no warning had been given to claimant that his job was in jeopardy and the incident which resulted in his discharge was not a wanton or wilful violation of an employer rule or an act in disregard of the employer's best interests.

'DECISION: The decision of the referee is hereby affirmed this 9th day of December, 1971.'

At the same time he claimed unemployment benefits Radecki also initiated grievance proceedings against Bendix through his union pursuant to its collective bargaining contract with Bendix. Those proceedings culminated in arbitration and an award by the arbitrator on September 24, 1970, (two months prior to the referee's decision) 'that the Grievance herein considered must be disallowed and dismissed, and the termination of Ralph Radecki sustained in full.'

Bendix's contentions and arguments by which it seeks to convince us that the Review Board's decision is contrary to law are many, but failure to make an adequate finding of facts is not one of them. However, our attention is attracted to the inadequacy of the findings by Bendix's related argument that the Board ignored competent evidence. The issues which involve the allegedly ignored evidence cannot be resolved on the findings now before us.

The necessity for findings of fact specific enough to enable a court intelligently to review its decisions appears to be well recognized by the Review Board. ² Reversals of the Board's decisions for failure to support them with adequate findings are quite rare. The failure in this instance appears to arise from the Board considering irrelevant certain issues we treat as relevant.

For the purposes of this opinion the issues before the Board are grouped and stated thus:

1. The shooting incident. Whether that incident which occurred on Radecki's last night of work constitutes 'misconduct in connection with his work.' ³

2. The prior incidents. Whether Radecki, at times prior to his last night of work:

a. Pointed a gun at another employee in 1968.

b. Attempted to conspire with a vending company's collector to steal money from vending machines in Bendix's plant and/or to fake a robbery of the collector in 1969.

c. Tampered with the A.D.T. system so as to have caused a fellow guard to have failed to perform his duties in 1969.

And if any of these events occurred, whether it constituted misconduct in connection with his work.

3. Collateral estoppel. Whether claimant initiated grievance proceedings to contest his discharge; whether the grievance was arbitrated; and, if so, whether the decision of the arbitrator is binding on Radecki as to any issue of fact before the Board in the prosecution of Radecki's claim for unemployment benefits.

Bendix argues, in effect if not expressly, that it proved the 'shooting incident' and the 'prior incidents' in two ways: (1) by direct evidence, and (2) by proving a prior adjudication in its favor (i.e., by proving the arbitration and the award).

As to the first issue, the shooting incident, we are satisfied that the Board's findings of fact are adequate to sustain the conclusion that the specific facts proved by the direct evidence are insufficient to establish misconduct. But since none of the Board's findings make any mention of arbitration we can reach no conclusion from the findings as to the third issue, whether the arbitration award, by virtue of the doctrine of collateral estoppel, requires a different finding. The Board's findings do not tell us whether there was arbitration; if so, whether the arbitrator made any findings and/or decision; and, if so, what findings and/or decision he made.

As to issue two, 'the prior incidents', the only clear finding made by the Board is that 'no action by the employer was taken at the time said alleged infractions occurred'. It is not clear whether the finding that there is 'no evidence . . . (of) warning, disciplinary action, or notice that his job was in jeopardy subsequent to . . . September 1968' relates to the prior incidents, but it seems to. We could approve these findings as adequate only if we were to conclude that as a...