Frost v. Review Bd. of Indiana Employment Sec. Division, No. 2-880A280
| Docket Nº | No. 2-880A280 |
| Citation | 432 N.E.2d 459 |
| Case Date | March 22, 1982 |
| Court | Court of Appeals of Indiana |
Page 459
v.
REVIEW BOARD OF the INDIANA EMPLOYMENT SECURITY DIVISION and
Youngstown Sheet and Tube Company, Appellees
(Respondents Below).
Albert C. Hand, Hand, Muenich & Wilk, Hammond, for appellant.
Linley E. Pearson, Atty. Gen., Richard Albert Alford, Deputy Atty. Gen., Indianapolis, for appellee Review Board of the Indiana Employment Security Div.
SULLIVAN, Judge.
This appeal is solely from that portion of a Review Board decision which determined that Dorothy A. Frost was overpaid $1,554.00 in unemployment insurance benefits. 1
The Review Board's determination was premised upon the following facts: Frost
Page 460
was discharged by her employer, Youngstown Sheet & Tube Co. on October 16, 1978. She received unemployment benefits of $74 per week for weeks ending November 18, 1978 through May 19, 1979 totalling $1,628.00. 2 Pursuant to Frost's grievance complaint and a resulting arbitration award, however, the discharge was set aside and she was reinstated on May 2, 1979 receiving $7,959 in retroactive wages for the period November 16, 1978 through May 1, 1979.I.
The issue before us is whether the amount paid to Frost by Youngstown pursuant to the arbitration award constituted "deductible income" under I.C. 22-4-5-1 (Burns Code Ed. 1974). 3 If so, the State is permitted, pursuant to I.C. 22-4-13-1, to recoup the unemployment benefits paid. We affirm.
The Review Board determined that the retroactive wages paid pursuant to an order of the grievance arbitrator were the legal equivalent of an award of back pay by the National Labor Relations Board (NLRB). Accordingly, the Board found such retroactive wages to be "deductible income." Frost argues that the award of the arbitrator here is an award of damages for the wrongful discharge, not an order to pay back wages, and that therefore the collateral source rule entitles her to retain both the arbitrator's award and the unemployment benefits. She further argues that deductible income in the context before us includes only back pay awarded by or made pursuant to an agreement with the NLRB.
A.
The clear language of the arbitrator's award belies Frost's argument that it was an award of damages. The award unequivocally ordered that "the discharge should be set aside and that grievant should be reinstated as a Tester Stenciler, with back pay for all but the first 30 days following her discharge." (emphasis supplied). In addition, Frost is in error when she attributes to the findings and conclusions of the arbitrator a determination that she was wrongfully discharged so as to give rise to an award of damages. The arbitrator merely found that Youngstown had fallen short of sustaining its "serious charge of time card fraud" as the cause for discharge, although Frost was "seriously negligent" in not correcting her time card to accurately reflect the hours worked and in having or permitting someone else to punch her card out some two hours after she had left for the day. The arbitrator did not state that there was not just cause for Frost's discharge. He stated only that Youngstown did not establish the cause alleged for the discharge.
From this we are unable to conclude that the award of back pay was, as a matter of law, an award of damages for wrongful discharge.
To the extent that Frost relies upon the collateral source rule to justify retention of the unemployment benefits as well as the back pay awarded by the arbitrator, it is at least in part dependent upon the premise that the arbitrator's award was for damages, a premise we have hereinabove rejected.
In any event, Frost's...
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Reed v. United States, Civ. No. F 81-164.
...442 U.S. 544, 52, 99 S.Ct. 2470, 75, 61 L.Ed.2d 68 (1979); accord, Frost v. Review Board of Indiana Employment Security Division, 432 N.E.2d 459 In the present matter it does not appear that exception should be read into 4-16-3-1 through 3. The exception of 14-2-6-3 are not needed to preven......
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Caylor-Nickel Clinic, P.C. v. Indiana Dept. of State Revenue, CAYLOR-NICKEL
...restricted to things similar to those specifically enumerated. Frost v. Review Bd. of the Indiana Employment Sec. Div. (1982), Ind.App., 432 N.E.2d 459, 461 (citing 2A Sutherland, STATUTES AND STATUTORY CONSTRUCTION Sec. 47.1-17 (4th ed. Regulation 45 I.A.C. 15-11-6 provides a general defin......
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McKenzie v. Maine Employment Sec. Com'n
...contention for the first time at the judicial stage of the appeal process. Frost v. Review Board of Indiana Employment Security Division, 432 N.E.2d 459 (Ind.App.1982); Nytiaha v. Com., Unemployment Compensation Board, 56 Pa.Cmwlth. 564, 425 A.2d 485 (1981); Cleveland v. Department of Emplo......
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EEOC v. Corinth, Inc., Civ. No. H91-227.
...Mining, Inc. v. Indiana Unemployment Ins. Bd., 541 N.E.2d 550, 552 (Ind.Ct. App.1989); Frost v. Review Bd. of Ind. Employment Sec. Div., 432 N.E.2d 459, 461 (Ind. Ct.App.1982). Additionally, once the Indiana Department of Employment and Training Services recoups the $1,336 from Ms. Alexande......
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Reed v. United States, Civ. No. F 81-164.
...442 U.S. 544, 52, 99 S.Ct. 2470, 75, 61 L.Ed.2d 68 (1979); accord, Frost v. Review Board of Indiana Employment Security Division, 432 N.E.2d 459 In the present matter it does not appear that exception should be read into 4-16-3-1 through 3. The exception of 14-2-6-3 are not needed to preven......
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Caylor-Nickel Clinic, P.C. v. Indiana Dept. of State Revenue, CAYLOR-NICKEL
...restricted to things similar to those specifically enumerated. Frost v. Review Bd. of the Indiana Employment Sec. Div. (1982), Ind.App., 432 N.E.2d 459, 461 (citing 2A Sutherland, STATUTES AND STATUTORY CONSTRUCTION Sec. 47.1-17 (4th ed. Regulation 45 I.A.C. 15-11-6 provides a general defin......
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McKenzie v. Maine Employment Sec. Com'n
...contention for the first time at the judicial stage of the appeal process. Frost v. Review Board of Indiana Employment Security Division, 432 N.E.2d 459 (Ind.App.1982); Nytiaha v. Com., Unemployment Compensation Board, 56 Pa.Cmwlth. 564, 425 A.2d 485 (1981); Cleveland v. Department of Emplo......
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EEOC v. Corinth, Inc., Civ. No. H91-227.
...Mining, Inc. v. Indiana Unemployment Ins. Bd., 541 N.E.2d 550, 552 (Ind.Ct. App.1989); Frost v. Review Bd. of Ind. Employment Sec. Div., 432 N.E.2d 459, 461 (Ind. Ct.App.1982). Additionally, once the Indiana Department of Employment and Training Services recoups the $1,336 from Ms. Alexande......