Graham v. Review Bd. of Indiana Employment Sec. Division
| Decision Date | 06 March 1979 |
| Docket Number | No. 2-478A138,2-478A138 |
| Citation | 179 Ind.App. 497,386 N.E.2d 699 |
| Parties | Leonard O. GRAHAM, Sr., Appellant, v. REVIEW BOARD OF the INDIANA EMPLOYMENT SECURITY DIVISION, William H. Skinner, J. Frank Hanley II, and Ralph E. Miles, as Members of and as constituting a quorum of the Review Board of the Indiana Employment Security Division, and Board of Commissioners of Owen County, Appellees. |
| Court | Indiana Appellate Court |
Jane A. Cullen, Bloomington, for appellant.
Theo. L. Sendak, Atty. Gen., Terry G. Duga, Deputy Atty. Gen., Indianapolis, Richard W. Lorenz, Spencer, for appellees.
Claimant-appellant Leonard O. Graham, Sr. (Graham) appeals from the denial of unemployment compensation by the Review Board of the Indiana Employment Security Division (Review Board). Graham raises two issues for review:
(1) whether the decision is contrary to law; and
(2) whether the Review Board erred by not granting a continuance.
The record indicates that Graham was employed from March 3, 1975 to September 13, 1977 as a custodial maintenance helper for the Owen County Board of Commissioners (Commissioners). Appellant was one of three persons assisting Darrell Powell (Powell) with the custodial work. Powell testified that he was hired on January 1, 1977 as a custodian and supervisor of the custodial staff for the Owen County Courthouse. Powell stated that from January 1, 1977 to June 15, 1977 Graham presented no difficulties at work. From June 15, 1977 to August 15, 1977, Powell was on leave from work due to a leg problem. During this period, Graham assumed the duties of Powell.
When Powell returned to work, he was unable to resume his full duties and his difficulties with Graham ensued. Powell testified that claimant would not begin working until 8:00 A.M. although he was scheduled to start at 7:30 A.M. This tardiness occurred approximately four times a week in spite of several admonishments by Powell to Graham that he should start working. Powell also testified that Graham once left the job site for thirty minutes to work on his truck without advising Powell of his absence or obtaining his permission. Powell further testified that Graham told some co-workers to slow down and not to hurry while working. Powell stated that Graham talked to Maxine Chamness while she was working outside and she left her job post to talk with him. When directed by Powell to return to her job, she refused.
Additionally, Graham refused Powell's order to dig a ditch on August 15, 1977, for the reason that the task was not within the scope of his duties. On August 17, 1977, Graham was informed by the Commissioners that he was to do as Powell required. Graham responded that he would not follow Powell's orders. The Commissioners told Graham he would be terminated if he did not obey the orders of his supervisor. On September 13, 1977, Powell again directed Graham to dig a ditch around the sidewalk. In reply, Graham stated that he would help dig the ditch but would not do it by himself. Powell then fired him.
Reversing the decision of the appeals referee, the Review Board found that appellant was discharged for failure to report to work as scheduled; leaving work before the end of his work shift without permission; interfering with co-workers in the performance of their work; and insubordination for refusing to ditch the sidewalks around the courthouse. While appellant has attacked these findings of fact as contrary to law, it is only necessary to discuss the finding of insubordination to affirm the decision of the Review Board.
In his assignment of errors, appellant alleges that the decision of the Review Board is contrary to law. Such an assertion raises both the sufficiency of the facts found to sustain the decision and the sufficiency of the evidence to sustain the findings of fact. IC 1971, 22-4-17-12 (Burns Code Ed.). 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.
"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." Gold Bond Bldg. Prod. Div., etc. v. Review Bd., Ind. (1976), Ind.App., 349 N.E.2d 258, at 263.
With regard to the first level of review, it is necessary to determine whether the findings of fact were sufficient in law to support the ultimate finding that Graham was discharged for just cause. Graham claims that the Review Board failed to make specific findings of fact with respect to all material issues in that there was no finding that the task of ditch-digging was within the scope of his duties. However, such a finding was not required. It seems that Graham has confused his contention that the findings of fact do not sustain the decision with an asserted failure of the evidence to support those findings. IC 1971, 22-4-15-1 (Burns Code Ed.) provides in part that:
" 'Discharge for just cause' as used in this section is defined to include but not be limited to separation initiated by an employer for falsification of an employment application to obtain employment through subterfuge; knowing violation of a reasonable and uniformly enforced rule of an employer; unsatisfactory attendance, if the individual can not (sic) show good cause for absences or tardiness; damaging the employer's property through wilful negligence; Refusing to obey instructions ; reporting to work under the influence of alcohol or drugs or consuming alcohol or drugs on employer's premises during working hours; conduct endangering safety of self or coworkers; incarceration in jail following conviction of a misdemeanor or felony by a court of competent jurisdiction or for any breach of duty in connection with work which is reasonably owed employer by an employee." (Emphasis added.)
Since refusal to obey instructions is a statutory ground for discharge, the finding that Graham refused to ditch the sidewalks was sufficient as a matter of law for the Review Board to deduce that Graham was discharged for just cause.
The second step in the inquiry is whether the findings of fact were supported by sufficient evidence. Generally, the Review Board's decision as to all questions of fact is conclusive. In reviewing the evidence to support...
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