Indiana Bell Tel. Co. v. Review Bd. of Indiana Employment Sec. Division

• Decision Date: 11 August 1969
• Docket Number: No. 269A23,No. 2,269A23,2
• Citation: 145 Ind.App. 144,250 N.E.2d 24
• Parties: INDIANA BELL TELEPHONE COMPANY, Incorporated, Appellant, v. REVIEW BOARD OF the INDIANA EMPLOYMENT SECURITY DIVISION, William H. Skinner, Richard D. Cobb and John E. Bushart, as Members of and as constituting the Review Board of the Indiana Employment Security Division, and Brenda M. Johnson, Appellees
• Court: Indiana Appellate Court

Page 24

250 N.E.2d 24

145 Ind.App. 144

INDIANA BELL TELEPHONE COMPANY, Incorporated, Appellant, v. REVIEW BOARD OF the INDIANA EMPLOYMENT SECURITY DIVISION William H. Skinner, Richard D. Cobb and John E. Bushart, as Members of and as constituting the Review Board of the Indiana Employment Security Division, and Brenda M. Johnson Appellees.

No. 269A23.

Appellate Court of Indiana, Division No. 2.

Aug. 11, 1969.

Douglas B. McFadden, Hugh Tuck Schulhof, Indianapolis, for appellant, Hyle G. Burke, Indianapolis, of counsel.

Theodore L. Sendak, Atty. Gen., Gary M. Beplay, Deputy Atty. Gen., Indianapolis, for appellee, Review Bd. of Employment Security Div.

PFAFF, Chief Justice.

Our conclusion herein is that the benefits awarded appellee, Brenda M. Johnson, are not justifiable under the facts before us. We reverse, therefore, believing that reasonable men would, upon the record, reach a conclusion opposite that reached by the Review Board. In so doing, we exercise the prerogative allowed by the following authorities: Anderson Motor Serv., Inc. v. Review Bd. of Ind. E.S.D. (1969), Ind.App., 247 N.E.2d 541; Achenbach v. Review Bd. of Ind. Emp. Sec. Div. (1962), 242 Ind. 655, 179 N.E.2d 873; Bootz Mfg. Co. v. Review Board of Ind. Emp. Sec. Div. (1968), Ind.App., 237 N.E.2d 597; Massengale v. Rev. Bd. of Ind. Emp. Sec. Div. (1961), 132 Ind.App. 587, 178 N.E.2d 557.

On October 14, 1967, appellee Johnson, a long distance operator employed by appellant, Indiana Bell Telephone Company, Incorporated, was discharged from her employment. Later, in December 1967, appellant filed its Eligibility Information Report, which stated that said appellee was dismissed because of her excessive tardy time, as well as because of being six months pregnant. The evidence is undisputed that appellee Johnson was a full six months pregnant; and, further, had been tardy on thirty-six separate occasions. Appellee was cautioned about her tardy time on several occasions prior to dismissal. On September 6, 1967, appellee was placed on dismissal warning and told that further tardy time would result in termination of employment. At this time appellee requested a leave of absence covering the remainder of her pregnancy. She was informed that in view of her tardy record, a leave did not seem forthcoming. Thereafter, the benefit committee recommended that the requested leave not be granted. The leave was denied because of excessive tardy time, and this fact was also stated as the basis of dismissal. Separation on October 14, 1967, was also founded upon the medical report showing appellee to have been a full six months pregnant as of that date, and termination of employment was thus additionally based upon appellant's company policy, which did not permit female employees to work beyond the sixth month of pregnancy.

Our first consideration must be whether appellee Johnson's record of tardiness constituted misconduct within the meaning of Acts 1947, ch. 208, § 1501, p. 673, as last amended by Acts 1967, ch. 310, § 19, p. 1162, the same being § 52--1539, Burns' 1968 Cum. Supp., which provides in pertinent part as follows:

'* * * an individual shall be ineligible for any waiting period or benefit rights based upon wages earned from any employer whose employ he has left voluntarily without good cause attributable to the employer or from which he has been discharged for misconduct in connection with his work: * * *'

We believe that as a matter of law the undisputed evidence shows that appellee Johnson's continued tardiness constituted misconduct. Although prior cases defining misconduct have primarily involved absenteeism, we see no...