Frey v. Review Bd. of Indiana Employment Sec. Div.

• Citation: 446 N.E.2d 1341
• Decision Date: 31 March 1983
• Docket Number: No. 2-982A335,2-982A335
• Parties: Marcella M. FREY, Appellant (Claimant below), v. REVIEW BOARD OF the INDIANA EMPLOYMENT SECURITY DIVISION, William H. Skinner, David L. Adams and Paul M. Hutson, as Members of and as constituting the Review Board of the Indiana Employment Security Division, and Switches, Inc., Appellees (Respondents).
• Court: Court of Appeals of Indiana

Page 1341

446 N.E.2d 1341

Marcella M. FREY, Appellant (Claimant below), v. REVIEW BOARD OF the INDIANA EMPLOYMENT SECURITY DIVISION, William H. Skinner, David L. Adams and Paul M. Hutson, as

Members of and as constituting the Review Board of the

Indiana Employment Security Division, and Switches, Inc.,

Appellees (Respondents).

No. 2-982A335.

Court of Appeals of Indiana,

Second District.

March 31, 1983.

Kelly Leeman & Associates by Patrick A. Schuster, Logansport, for appellant.

Linley E. Pearson, Atty. Gen., Gordon R. Medlicott, Deputy Atty. Gen., Indianapolis, for appellees.

SHIELDS, Judge.

Marcella Frey (Frey) appeals the decision of the Review Board of the Indiana Employment Security Division (Review Board) affirming the appeal referee's determination she was not available for employment as required by I.C. 22-4-14-3 (Burns Code Ed., Supp.1982) and was therefore ineligible to receive unemployment benefits. Frey contends the Board's determination she was unavailable for work two days a week and its decision totally suspending her benefits were contrary to law.

Frey was laid off her employment with Switches, Inc., of Logansport, Indiana in December 1981. In early January 1982 she enrolled in and began attending a statistics class at Indiana University Kokomo in furtherance of her master's degree. The class met Tuesdays and Thursdays from 2:30 to 3:45 P.M. and necessitated a total travel time of approximately one hour each day. The unemployment benefits Frey had been receiving were suspended as of the week ending January 30, 1982 because her class attendance was deemed by the deputy claims officer to restrict her availability for work because it interfered with the normal operation of a first or second shift factory job. The appeals referee upheld the eligibility determination concluding, in pertinent part:

"The evidence is unrefuted that the claimant was able to work and was making a reasonable effort to secure employment. Because of the class that the claimant was taking, which was during normal working hours, the claimant must be considered to have placed a restriction on her availability for employment." ¹ R. at 21 (emphasis added).

The review board, after reviewing the appeals hearing transcript, issued a decision without a hearing affirming the referee's decision and adopting his findings and conclusions.

We remand for further proceedings not inconsistent with this opinion.

I.C. 22-4-14-3 provides an unemployed individual shall be eligible to receive benefits with respect to any week only if he, among other requirements, is "available for work." One who is otherwise eligible, but not available for work during any normal work day of the week, is nevertheless entitled to receive benefits for that week reduced by the following formula: one-third for each day of unavailability. ² According to the formula, a person unavailable three or more days of the normal work week is not entitled to any benefits. Ind.Admin.Rules & Regs. (22-4-12-4)-2 (Burns Code Ed.1976). "Unavailability" is not defined, but I.C. 22-4-14-3 lists several instances in which unavailability shall be deemed to exist, none of which are relevant to Frey's situation. ³ In addition, the statute provides that one "in training with the approval of the board" shall not be considered unavailable for employment. I.C. 22-4-14-3.

Frey's situation, attendance of college classes, although not specifically considered by the current statute, was included in the prior law, I.C. 22-4-14-3 (Burns Code Ed.1974 [repealed 1976, P.L. 114 Sec. 4, effective July 4, 1976], as one of the specific instances of unavailability. With certain exceptions, an individual was unavailable for work if "attending a regularly established school, college, university, hospital, or training school (excluding, however, any night school or part time training course)" or "in any vacation period intervening between regular school terms, during which he is a student...." I.C. 22-4-14-3(a) (repealed). ⁴

The statutory provision by which college attendance, subject to certain exceptions, made one "unavailable" for work was deleted in 1976. When a statute on a subject contains certain language which is later deleted, statutory construction indulges in the presumption the legislature was cognizant of the presence and meaning of the language and intended by its deletion to change the law. Pierce Governor Co. v. Review Board, (1981) Ind.App., 426 N.E.2d 700, 703 (Pierce I ). The mere fact of attendance at college classes is no longer, as a matter of law, sufficient to classify an unemployed person as unavailable for work. To the extent the decision of the Review Board, evidenced by the conclusion, "Because of the class that the claimant was taking, which was during normal working hours, the claimant must be considered to have placed a restriction on her availability for employment," was based on Frey's college class attendance creating per se unavailability, the decision is in error. ⁵

Whether attendance of college or other classes renders an individual unavailable for employment under I.C. 22-4-14-3 is a question of fact to be determined by the Board in each case based on all the relevant circumstances. See generally Warner Press, Inc. v. Review Board, (1980) Ind.App., 413 N.E.2d 1003; Puckett v. Review Board, (1980) Ind.App., 413 N.E.2d 295; Bennett v. Review Board, (1952) 122 Ind.App. 37, 102 N.E.2d 383.

Frey's contention the Board's decision was contrary to law and not sustained by the evidence raises both the sufficiency of the facts to sustain the decision and the sufficiency of the evidence to sustain the findings of fact. I.C. 22-4-17-2 (Burns Code Ed.1974). Under this two-tier standard of review, the Review Board's "finding of ultimate fact" is the conclusion, and the "findings of basic facts" are the premises from which the Review Board deduced its conclusion. Graham v. Review Board, (1979) Ind.App., 386 N.E.2d 699. "At the first level of review, we examine only the relationship between the premises and the conclusion and ask if the Board's deduction is 'reasonable.' (Citations omitted.) The inquiry at this first level of review may be termed a 'question of law.' (Citations omitted.) "At the second level of review, we inquire into the nexus between the premises or findings of basic facts and the evidence presented to determine if the evidence justified those findings."

Id. at 701, (quoting Gold Bond Building Products Division v. Review Board, (1976) 169 Ind.App. 478, 349 N.E.2d 258, 263).

However, our performance at either level of review is necessarily dependent upon the presence of specific findings of fact in the Review Board's decision. Specific findings of fact are essential to an effective system of administrative law. Perez v. United States Steel Corp., (1981) Ind., 426 N.E.2d 29 (Perez III ).

"The practical reasons for requiring administrative findings are so powerful that the requirement has been imposed with remarkable uniformity by virtually all federal and state courts, irrespective of a statutory requirement. The reasons have to do with facilitating judicial review, avoiding judicial usurpation of administrative functions, assuring more careful administrative consideration, helping parties plan their cases for rehearings and judicial review, and keeping agencies within their jurisdiction."

Id. at 31 (quoting Davis, 2 Administrative Law Treatise Sec. 16.05 p. 444 (1958)).

Viewed from the appealing party's perspective, specific findings are necessary because the party is entitled to be shown, through the findings, that the board considered all the relevant facts. When an award by the board is negative, the board's findings of fact should exclude every possibility of recovery within the issues raised. Wolfe v. Review Board, (1978) 176 Ind.App. 287, 375 N.E.2d 652. The appealing party is entitled to know why he lost, i.e., by virtue of which factual grounds the board decided against him. Perez III, 426 N.E.2d at 32, n. 1; Wolfe, 375 N.E.2d at 656.

The Board's decision of ineligibility was based solely on the class Frey was taking during normal working hours. However, the taking of a class is not a per se disqualification. Therefore, the ultimate finding of disqualification must be based upon additional findings, supported by the evidence or lack thereof, indicating why the class impairs Frey's availability for work. These additional findings are necessitated by the existence of evidence, some of which is disputed, of Frey's efforts to obtain employment not conflicting with her class (restaurants, hospitals, and factories which employ persons for different shifts) or to obtain employment with an employer who might agree to allow her the flexibility necessary to attend her class (her former employer.) Further, and most significantly, although she expressed no eagerness to drop out in the middle of the semester, Frey did indicate she would quit her college class "if it is a necessity" to become employed. Record at 21.

The Board's findings and conclusion as adopted from the referee give no indication what consideration, if any, was given to these factual issues concerning availability as raised by Frey or how the board resolved the disputed facts. As an appellate tribunal, we acknowledge the binding nature of the review board's determination of issues of fact. York v. Review Board, (1981) Ind.App., 425 N.E.2d 707. However, our cases have repeatedly reminded the board that the duty to find the facts must rest on its shoulders rather than ours. Perez III, 426 N.E.2d 29. Indeed, we would "usurp its authority if we find by presumption the facts it fails to find expressly." Wolfe, 375 N.E.2d at 655 (quoting Transport Motor Express, Inc. v. Smith, (1972) Ind.App., 289 N.E.2d 737, 745, vacated on other grounds, (1974) 262 Ind. 41, 311 N.E.2d 424).

Therefore, we remand Frey's case to the Review Board for more specific findings of the basic facts regarding Frey's...