Hehr v. Review Bd. of The Indiana Employment Sec. Div.

• Decision Date: 07 March 1989
• Docket Number: No. 93A02-8709-EX-00373,93A02-8709-EX-00373
• Citation: 534 N.E.2d 1122
• Parties: Wade L. HEHR, Linda S. Huffman, Tommy J. Gray, and Bobby L. Partin, Appellants, v. REVIEW BOARD OF THE INDIANA EMPLOYMENT SECURITY DIVISION, John C. Mowrer, Joe A. Harris and Nanette L. McDermott, as members of and constituting the Review Board of the Indiana Employment Security Division, and Ferraloy, a Clevite Industries Company, Appellees.
• Court: Indiana Appellate Court

Page 1122

534 N.E.2d 1122

Wade L. HEHR, Linda S. Huffman, Tommy J. Gray, and Bobby L Partin, Appellants, v. REVIEW BOARD OF THE INDIANA EMPLOYMENT SECURITY DIVISION John C. Mowrer, Joe A. Harris and Nanette L. McDermott, as members of and constituting the Review Board of the Indiana Employment Security Division, and Ferraloy, a Clevite Industries Company, Appellees.

No. 93A02-8709-EX-00373.

Court of Appeals of Indiana Second District.

March 7, 1989.

Nora L. Macey, Mark T. Robbins, Segal and Macey, Indianapolis, for appellants.

Kim F. Ebert, Julia F. Crowe, Locke Reynolds Boyd & Weisell, Indianapolis, for appellees.

SULLIVAN, Judge.

This is a consolidated appeal from decisions of the Review Board of the Indiana Employment Security Division, denying claimants Wade L. Hehr, Linda S. Huffman, Tommy S. Gray and Bobby L. Partin unemployment compensation benefits.

We affirm in part and reverse in part.

All four claimants were discharged by the employer, Ferraloy, A Clevite Industries Company, for acts which occurred during a strike on the employer's premises April 6, 1987. Specifically, the claimants were discharged for damaging or attempting to damage cars crossing the picket line on that date. Individual hearings were held for Hehr and Huffman, and a consolidated hearing was held for Gray and Partin. The referee's findings that the claimants were discharged for just cause and therefore disqualified from receiving benefits were, in each case, adopted by the Board.

The grounds for discharge for just cause under I.C. 22-4-15-1(d) (Burns Code Ed.Repl.1986) upon which the Board relied are as follows:

"(2) knowing violation of a reasonable and uniformly enforced rule of an employer;

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(7) conduct endangering safety of self or coworkers; or

(8) ... any breach of duty in connection with work which is reasonably owed an employer by an employee."

After setting forth the standard of review applicable to all claimants, we will separately discuss each claimant's appeal.

An assignment of errors that the decision of the review board is contrary to law presents both the sufficiency of the findings of fact to sustain the decision and the sufficiency of the evidence to support the findings of fact. I.C. 22-4-17-12 (Burns Code Ed.Supp.1988).

"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 of the Indiana Employment Security Division (1979) 3d Dist., 179 Ind.App. 497, 386 N.E.2d 699, 701.

"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.' (Cites omitted.) The inquiry at this first level of review may be termed a 'question of law.' (Cites 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. (quoting Gold Bond Building Products Division National Gypsum Co. v. Review Board of the Indiana Employment Security Division (1976) 2d Dist., 169 Ind.App. 478, 486, 349 N.E.2d 258, 263).

When an employee is alleged to have been terminated for just cause, the employer bears the burden of proof to establish a prima facie showing of just cause for termination. If that has been done, the burden shifts to the employee to introduce competent evidence to rebut the employer's case. Sloan v. Review Board of the Indiana Employment Security Division (1983) 3d Dist., Ind.App., 444 N.E.2d 862.

Although our standard of review precludes reweighing the evidence, we must reverse if reasonable persons would be bound to reach a different result upon a consideration of the evidence from the perspective favoring the Board's decision. Frank v. Review Board of the Indiana Employment Security Division (1981) 3d Dist.Ind.App., 419 N.E.2d 1318.

Because the stated cause for discharge was restricted to causing damage to property or attempting to cause damage to property, denial of unemployment benefits must be premised upon this ground. Voss v. Review Board of the Indiana Employment Security Division, (1989) 2d Dist.Ind.App., 533 N.E.2d 1020; Mine Safety Appliances Co. v. Commonwealth of Pennsylvania, Unemployment Compensation Board of Review (1980) 55 Pa.Commw.Ct. 517, 423 A.2d 798; Hawkins v. Leach (1961) 115 Ohio App. 259, 185 N.E.2d 36; See Miller v. F.W. Woolworth Co. (1960) 359 Mich. 342, 102 N.W.2d 728. Therefore, we will not consider elements of intimidation of non-strikers or conduct which endangered self or other employees. We will only consider the claimants' conduct in causing or attempting to cause damage to property as it relates to a violation of an employer rule or a breach of a duty reasonably owed to the employer.

The claimants are correct in stating that in order to establish a prima facie case for violation of an employer rule under I.C. 22-4-15-1(d)(2), it is necessary for an employer to demonstrate that the claimant (1) knowingly violated, (2) a reasonable, and (3) uniformly enforced rule. Frank, supra, 419 N.E.2d at 1319. Thus, the Board's findings have been held inadequate where the Board has failed to find that the rule was reasonable and uniformly enforced (see Smithson v. Review Board of the Indiana Employment Security Division (1983) 2d Dist.Ind.App., 446 N.E.2d 1014. However, where an alternative finding may be supported by the same set of facts and circumstances, the Board may rely on an alternative basis (subject to the employer's stated reason for discharge) in finding that the claimant was justly discharged. See Moore v. Review Board of the Indiana Employment Security Division (1984) 3d Dist.Ind.App., 461 N.E.2d 737. Thus, although we cannot affirm the Board's decisions on the basis that the claimants violated an employer rule against damaging property unless the Board makes the requisite findings, we need not reverse the Board's decisions if the Board's findings that the employees breached a duty reasonably owed to the employer can be upheld.

I. WADE L. HEHR

The Board's findings and conclusions with respect to Wade Hehr are as follows:

"The evidence of record substantiates a finding that the claimant worked for this employer for the period January 26, 1976 through April 14, 1987, as a senior set-up person at the rate of nine thirty ($9.30) an hour. The claimant was discharged for intentionally damaging or attempting to damage vehicles entering the plant during a labor disagreement.

In a discharge case, the employer has the burden of showing just cause for the discharge. Discharge for just cause as used in this section is defined to include any breach of duty reasonably owed the employer, dangerous conduct, or rule violations.

The referee finds that a labor disagreement was in existence at this employer at the time the incident of misconduct is alleged to have occurred. The claimant was on a picket line. He was still an employee at that time although on strike. The incident occurred April 6, 1987. The claimant was observed by James Pattison, Bruce Patterson, Rusty Crockett, and James Sharp striking vehicles with his hands as they entered the gate. The employer provided a film of the claimant's actions which was shown at the hearing.

As a result, the referee concludes that the employer has sustained its burden of proof. The employer's rule does prohibit damaging property on employer premises. The claimant's actions had the potential to be dangerous and also were a breach of duty owed the employer and employees alike. It is held, therefore, claimant was discharged for just cause within the meaning of Chapter 15, Section 1 of the Employment Security Act." Hehr Record at 92-93.

Hehr argues that he did not strike any vehicles with his hands, and even if he did make contact with any of the passing cars, no damage resulted. Hehr also argues, as do the other three claimants, that the Board failed to make certain necessary findings to support its determinations of discharge for just cause.

With regard to Hehr specifically, to the extent that the Board relies upon Hehr's alleged violation of Ferraloy's rule against damaging property on its premises, we cannot affirm for the following reasons. The Board found that an existing employer rule prohibited the damage of property on the employer's premises; however, there is no evidence in the record of Hehr's hearing to support this finding. ¹ Even if there were evidence of such a rule, there is no evidence that the conduct did in fact violate the rule. Although the Board found that Hehr, with his hands, struck vehicles as they entered the gate, it was necessary for the Board to find also that damage to the vehicles resulted. Not only was there no such finding, but there was no evidence which would have supported one. We therefore cannot affirm the Board's finding that Hehr was discharged for just cause upon this basis.

However, the Board also found that Hehr's actions constituted a breach of duty owed to the employer. Hehr argues, as do the other claimants, that "refusing to work, attempting to dissuade others from entering the plant and yelling slogans at managers and replacement employees are contrary to the usual duty owed an employer. Yet they are statutorily protected incidents of the right to strike and picket and cannot breach a duty to the employer in this context." Reply Brief at 11. We acknowledge that in strike situations emotions are often highly volatile and an employee may engage in some behavior which might not otherwise be tolerated by an employer. However, while claimants might be correct in making the above quoted statements, it is clear that intentionally damaging or attempting to damage property of a co-employee or of the employer would not fall within a reasonable range of acceptable behavior under the circumstances....