Jackson v. Review Bd. of Ind. Employment Sec. Division

• Decision Date: 29 June 1954
• Docket Number: No. 18514,18514
• Citation: 120 N.E.2d 413,124 Ind.App. 648
• Parties: JACKSON v. REVIEW BOARD OF INDIANA EMPLOYMENT SECURITY DIVISION et al.
• Court: Indiana Appellate Court

Page 413

120 N.E.2d 413

124 Ind.App. 648

JACKSON v. REVIEW BOARD OF INDIANA EMPLOYMENT SECURITY DIVISION et al.

No. 18514.

Appellate Court of Indiana, In Banc.

June 29, 1954.

Sydney L. Berger, Evansville, for appellant.

John M. Harrigan, Attorney for Review Board.

Edwin K. Steers, Atty. Gen. of Indiana, William S. McMaster, Deputy Atty. Gen., Indiana Employment Security Division, for appellee.

KELLEY, Presiding Judge.

The appellee Review Board, one member dissenting, rendered the following decision which is challenged by appellant as being contrary to law:

'The Review Board holds that the claimant (appellant) failed without good cause to accept the referral and apply for an offer of suitable work on July 21, 1953, and is ineligible for her benefit rights for the week ending July 25, 1953, and the next five weeks immediately following in addition to having her maximum benefit amount reduced by six times her weekly benefit amount. The decision of the referee is affirmed.

'Dated this 6th day of November, 1953.'

The decision is founded upon a statement of facts, findings and conclusions of the Board, which are, in pertinent substance, as follows:

'Statement of Fact: The claimant was employed by an employer at Evansville, Indiana engaged in the manufacture of refrigerators from August 14, 1953, to May 12, 1953, at which time she was laid off because of the lack of work and her prospects of being recalled were indefinite because of her short period of seniority. The claimant had filed a claim for unemployment compensation on April 8, 1953, during a previous period of unemployment, which she renewed upon being laid off on May 12, 1953. The claimant drew benefits through week ending July 18, 1953. On July 21, 1953, the claimant was called by an interviewer of the local employment office relative to an opening as a salesclerk at a local store. The claimant displayed a total lack of interest in the available work because she wanted to wait for work in a factory. The claimant had had previous experience as a salesclerk and the only reason she preferred factory work was because it afforded better wages. The claimant was totally unemployed from May 12 through July 21, 1953, the date she was called by the local office interviewer.'

'Findings and Conclusions: * * * that the claimant was totally unemployed from May 12, 1953, to July 21, 1953, on which date she was called by an interviewer of the local employment office relative to a job opening as a salesclerk in which she had had previous training and experience; that the claimant showed a total lack of interest in the job as a salesclerk and because of such fact she was not offered the referral.

'The Review Board further finds that the claimant's attitude toward the work as a salesclerk constituted a failure to accept the referral because it would have been useless for the interviewer to have offered it to her and the law does not contemplate doing a useless thing.

'The Review Board further finds that the claimant was qualified by training and experience for the job as salesclerk; that work as a salesclerk would not have been detrimental to her health, safety or morals; that in view of the claimant's long period of unemployment and her lack of prospects of obtaining factory work, which she preferred, the claimant did not have good cause to refuse to accept the referral and apply for the work as a salesclerk on July 21, 1953.

'The Review Board further finds that the claimant failed without good cause to accept the referral and apply for an offer of suitable work on July 21, 1953, and is subject to the statutory disqualification.' (Our emphasis.)

The evidence adduced at the hearing before the referee, and reviewed by the Board, consisted only of appellant's testimony. The condensed recital of said evidence, as set forth in appellant's brief, is unchallenged by appellee. Therefore, it seems appropriate to incorporate herein, without the transcript reference, the undisputed evidence as thus recited:

'My name is Ila M. Jackson. My address is 927 East Mulberry Street, Evansville, Indiana. I was laid off from Servel on May 12th. At that time I was in Department 43-A. That was civilian work. I had previously worked in the Wing Plant, Department 85, where I did wing drilling. I did water testing in the Civilian Plant. It ran around $1.80 an hour in the water testing. I started to work the 14th day of August, 1952. I had worked there several years before. As far as Servel is concerned I have made myself available for anything. I signed up in the pool for any shift, anything that came along. The Employment Office called me on July 21st regarding possible employment. They asked if I was interested in sales work or did I plan on going back to Servel. I did not say anything to her when she called about working in any other factories, but she said she remembered that I did want factory work. She said she could probably place me in sales work. I told her I planned on going back to Servel. I indicated that I was available for factory employment other places besides Servel. No I was not called about a sales job paying $27.00 a week, plus 2% commission. I was called and asked whether I was interested in sales work and when I answered 'No', the interviewer did not go any further. I have done extra sales work at Scherr's. If I was taking a job at $27.50 a week, I figure my expenses would be at least $16.00. Bus fare, 6 days, 30cents a day, $1.80; Lunch, 7 meals, at 75cents a meal would be $5.25; dry cleaning when you work in a place like that would run around $2.00 a week; Social Security and taxes deducted would run around $6.00 or $6.50. I would also have to buy one pair of hose a week when working, which would add up to $16.50. That would leave me $11.00. The 2% commission meant nothing because you had to wait so long for the commission, which I know from the little extra work I've done in sales work. I have made it clear that I am interested in other factory work besides Servel. I have went to other places, Seeger, International Harvester, etc. All my life I have done factory work and I would like to stay in factory work. I told Mr. Graper they said at Servel that after August 17 they would be back from vacation then and it would not be too long after that before I expected to be back to work. This office has sent me to Scherr's for extra sales work. I worked Christmas time, dollar days, etc., before I worked at Servel, but I had my application in at Servel and was waiting to be called and I went as soon as they called me. My prospects at Servel are rather indefinite but they told me after they got into my seniority I would be called. It was before I went to Servel that I worked as a sales person. The only store I worked in similar to the Toggery was Scherr's. I have spent most of my life before working at Servel, working in factories in Tennessee. I contend that with as many factories as we have in this town, I am better qualified for factory work and Chrysler told me to check back in 90 days. If after trying for a long time to find factory work but I want to make sure there is no factory work, I would consider something else.' (Emphasis supplied.)

The question raised on this appeal is whether the facts found by the Board support its said decision and whether the findings are sustained by the evidence.

Section 52-1542k of the Indiana Employment Security Act, being §§ 52-1525 to 52-1563b, inclusive, Burns' 1951 Replacement and 1953 Cum. Pocket Suppl., provides, in part: '* * * An assignment of errors that the decision of the review board is contrary to law, shall be sufficient to present both the sufficiency of the facts found to sustain the decision, and the sufficiency of the evidence to sustain the finding of facts. * * *' The same § 52-1542k provides: 'Any decision of the review board shall be conclusive and binding as to all questions of fact.'

With reference to said provisions of the act, our courts have held that we are not at liberty to weigh the evidence and that we can disregard the facts as found by the board only in the event they are not sustained by any evidence of probative value. Merkle v. Review Board of Indiana Employment Security Division, 1950, 120 Ind.App. 108, 111, 90 N.E.2d 524; Winer, Inc. v. Review Board of Indiana Employment Security Division, 1950, 120 Ind.App. 638, 640, 95 N.E.2d 214.

It has further been held that by the express provisions of the statute, Burns' 1951 Replacement, § 52-1542e, the right of the parties in these cases need not be determined under common law or statutory rules of evidence and other technical rules of procedure. Walton v. Wilhelm, 1950, 120 Ind.App. 218, 227, 91 N.E.2d 373. The court in that case quotes with approval from the holding in the case of In re Sturdevant Unemployment Compensation Case, 1946, 158 Pa.Super. 548, 45 A.2d 898, 905. Said quotation includes the following pertinent considerations of the Pennsylvania court concerning proceedings before administrative boards:

'* * * Many integrants enter into the calculation, some resting on testimony, others upon specialized data and information peculiarly accessible to administrative agencies, and of which they may take official notice just as a court may take judicial notice. Of course, such information should be placed upon the record, and the parties apprised of it, so that the essentials of a fair hearing are preserved. Our examination of the record in contests concerning availability must ordinarily be limited to the determination whether the board's findings of fact are sustained by the evidence. * * *' (Our emphasis.)

Referring to the aforesaid findings of the appellee board, there appears no finding that the appellant was directed to apply for available, suitable work by the director, the deputy, or an authorized representative of the state or the United States employment service, as provided in § 52-1539a, Burns' 1953 Suppl. The record, including...