Hacker v. Review Bd. of Indiana Employment Sec. Division, 1070A172

• Decision Date: 30 June 1971
• Docket Number: No. 1070A172,No. 2,1070A172,2
• Citation: 271 N.E.2d 191,149 Ind.App. 223
• Parties: Linda HACKER, Appellant, v. REVIEW BOARD OF the INDIANA EMPLOYMENT SECURITY DIVISION et al., Appellees
• Court: Indiana Appellate Court

Page 191

271 N.E.2d 191

149 Ind.App. 223

Linda HACKER, Appellant, v. REVIEW BOARD OF the INDIANA EMPLOYMENT SECURITY DIVISION et al., Appellees.

No. 1070A172.

Appellate Court of Indiana, Division No. 2.

June 30, 1971.

Kagan & Barker, Martinsville, for appellant.

Theodore Sendak, Atty. Gen., Darrel K. Diamond, Lon D. Shawley, Deputy Attys. Gen., for appellees.

STATON, Judge.

This is an appeal from a negative decision by the Full Review Board of the Indiana Employment Security Division. The Review Board determined that the claimant failed to meet the availability requirements of § 1403 of the Employment Security Act by limiting her availability to night shift work only and not making an independent, sincere effort to find work from October 17, 1969 to January 13, 1970. Section 1403 of the Indiana Employment Security Act may be found in IC 1971, 22--4--14--3; Ind.Ann.Stat., § 52--1538b (Burns 1964).

The Review Board found in its decision 'that claimant limited her availability to night shift work and had made but two telephone contacts in an effort to secure work from October 17, 1969 to January 13, 1970.' The decision of the Review Board is as follows:

'The referee's decision dated February 19, 1970, under § 1501 of the Act is hereby modified this 28th day of September, 1970. The Review Board holds that claimant is not disqualified for benefit rights under § 1501 of the Act. The Review Board initially determines that claimant is not entitled to benefit rights under § 1403 of the Act from October 17, 1969 to January 13, 1970.'

The appellant was employed as a production worker for R.C.A. on the night shift until October 17, 1969. On October 15, 1969, she was informed that she lacked sufficient seniority to transfer to another shift and would therefore be laid off on October 17, 1969. The next week and each succeeding week, until June 1970, Linda Hacker made her application for unemployment benefits.

The evidence discloses that the appellant has four children and that the oldest is ten years of age. She began her employment with R.C.A. around March 1966 and placed on her application for employment that she was available for the night shift only. The appellant lived in Martinsville, Indiana and found it very difficult to obtain a baby sitter who would 'come out that far.' In March, 1967, she was involuntarily laid off because the night shift shut down. She received unemployment benefits for eight weeks during this lay off period. Again, in 1968 she was laid off and received unemployment benefits. The circumstances surrounding the employers' clerical procedures were the same as in the present case.

After being laid off the third time on October 17, 1969, she made an application for unemployment benefits but was turned down by the Claims Deputy of the Indiana Employment Security Division. This denial was based on records submitted by the employer which raised the question as to whether the appellant was voluntarily or involuntarily laid off from her employment. This question was submitted to a referee who determined the matter on February 19, 1970 in appellant's favor. The referee's finding and decision is as follows:

'The next issue for us to determine in this case is whether claimant was discharged by employer for misconduct in connection with her work there. Since we find that claimant was discharged by employer because of a cutback in production for her said shift of work there we find hereby that claimant was discharged by employer for its convenience and not for misconduct in connection with her work there.

'DECISION: Deputy's initial determination as to the issue involved in this case is modified hereby on February 19, 1970; deputy's initial determination as modified is reversed hereby on February 19, 1970. If claimant is eligible otherwise, she is entitled to benefits under Indiana Employment Security Act.'

Thereafter, the employer appealed this 'Decision' to the Review Board which sustained the referee's 'Decision' by making the following finding, conclusion and decision:

'The Review Board finds that claimant was a production worker for this employer off and on over a period of approximately three and a half years on the 5:30 P.M. to 2 A.M. shift.'

'It further finds that claimant was laid off at the end of her work shift on October 17, 1969, because she did not have enough seniority to transfer to a day shift.

'The Review Board concludes that claimant was laid off on October 17, 1969, through no fault of her own since she did not have enough seniority to transfer to a day shift, therefore, cause for her separation is attributable to the employer.

'DECISION: The referee's decision dated February 19, 1970, under § 1501 of the Act is hereby modified this 28th day of September, 1970. The Review Board holds that claimant is not disqualified for benefit rights under § 1501 of the Act. * * *'

However, the Review Board further 'initially' determined and considered the matter of appellant's 'availability to work' under § 1403 of the Act which in part reads as follows:

'It further finds that claimant limited her availability to night shift work and had made only two telephone contacts in an effort to secure work from October 17, 1969 to January 13, 1970.

'It further concludes that claimant failed to meet the availability requirements of § 1403 of the Act by limiting her availability to night shift work only and not making an independent, sincere effort to find work from October 17, 1969, to January 13, 1970.

'DECISION: * * * The Review Board initially determines that claimant is not entitled to benefit rights under § 1403 of the Act from October 17, 1969, to January 13, 1970.'

It is appellant's first contention that the Review Board cannot consider anything on review other than the decision of the referee and that issues raised before the referee but not the basis of his decision should not be considered by the Review Board. We cannot agree with this contention.

It is the appellant's second contention that the Review Board's decision is contrary to law and must be reversed. With this contention we do agree.

The scope of review by the Review Board is not limited when an appeal is taken from a referee's decision. Ogilvie v. Review Board of Indiana Employment Security Division (1962), 133 Ind.App. 664, 184 N.E.2d 817. In the Ogilvie case, supra, our court underscored the nature of the review at page 672, 184 N.E.2d at page 821: 'It has been generally established that appeal procedures within an administrative agency constitutes administrative rather than judicial review and that the general legal principles applying in cases of appeal from trial to appellate courts do not apply to the various steps taken for review of an order or decision entered by a subordinate tribunal of the administrative agency.' See Lutz v. Goldberg (1950), 7 N.J.Super. 288, 73 A.2d 65; City of Passaic v. Division of Tax Appeals, Dept. of Treasury (1959),54 N.J.Super. 215, 148 A.2d 630; Lake Placid Club, Inc. v. Arams (1958), 6 A.D.2d 469 179 N.Y.S.2d 487, aff'd 6 N.Y.2d 857, 188 N.Y.S.2d 561, 160 N.E.2d 92.

'In the final analysis the claimant-appellant is urging herein that the Indiana Employment Security Act affords only a very limited scope of review from the decisions of the Claims Deputy and the Referee. This theory is totally unsupported by the Act.'

'* * * The appeal to the Review Board removes the claim in its entirety. As may be seen from even a cursory observation of the Act, any other holding would be inconsistent with the statutory method for the Review Board's final disposition of disputed benefit claims.'

The door to the issue of 'Availability to Work' was opened repeatedly by the appellant. We note especially three pages of the transcript which are devoted to a direct-examination of appellant by her attorney on this very issue. One particularly interesting question attempts to draw an analogy:

'Q. I see. Now, when we discussed this case we made a kind of analogy to a plumber, did we not? We considered you a particular worker, is that right? And what kind of a worker was that?

'A. A night worker, I suppose.

'Q. A night worker, right, and I said our position was that you're like a plumber, and when you're asked to quit plumbing and start doing electrical work, you couldn't do it, is that right?

'Q. That's right, and when you hired on at R.C.A. for night work and they asked you to do day work, it's impossible, is that right?'

At page 16 of the transcript we find the referee asking the following questions and receiving the following answers from the appellant without objections:

REFEREE:

'Q. Can you tell us again just how your children affect your availability for daytime work?

'A. Well, I have three in school and one still home, and the bus comes around quarter after seven and they are home at 2:30, and there just isn't anybody that wants to come in at those hours, plus have one home all day.

'Q. In other words, you are not able to obtain baby-sitting service for your one child at home during the day, is that correct?

'A. No, I live in the country and nobody wants to come out that far.

'Q. Have you been looking for work since your separation from the employer?

'A. I have called two places in Martinsville, but nobody is hiring right now.

'Q. Now, when were you informed by the employer, or rather what were your actual hours at the time of your separation?

'A. From 5:30 to 2:00.

'Q. That would be from 5:30 P.M. to 2:00 A.M.?

'A. Yes.'

The issue of availability has been raised and becomes a matter of consideration for the Review Board. Burns Administrative Rules and Regulations, S. 52--1542b(1), provides in part:

'* * * (I)n general, rules of evidence and procedure for the trial of civil causes shall govern proceedings before a feferee or a review board, but not to such an extent as to obstruct or prevent a full presentation of fact or to jeopardize the rights of any interested party.'

Under Rule TR. 15(...