Massengale v. Review Bd. of Ind. Employment Sec. Division, 18035

• Decision Date: 01 November 1950
• Docket Number: No. 18035,18035
• Citation: 120 Ind.App. 604,94 N.E.2d 673
• Parties: MASSENGALE v. REVIEW BOARD OF INDIANA EMPLOYMENT SECURITY DIVISION et al.
• Court: Indiana Appellate Court

Page 673

94 N.E.2d 673

120 Ind.App. 604

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

No. 18035.

Appellate Court of Indiana, in Banc.

Nov. 1, 1950.

John M. Caylor, Indianapolis, for appellant.

J. Emmett McManamon, Atty. Gen., Glen F. Kline, Dep. Atty. Gen., Henry M. Hogan, Detroit, Mich., Alan W. Boyd, Lester Irons, John W. Houghton, all of Indianapolis (Barnes, Hickam, Pantzer & Boyd, Indianapolis, of counsel), for appellees.

CRUMPACKER, Judge.

The appellant was employed by the Allison Division of General Motors Corporation on January 17, 1949, as a clerk in its Materials and Control Department. On November 10, 1949, he was discharged and in due course he filed a claim for compensation pursuant to the Indiana Employment Securities Act, Burns' Ann.St. § 52-1525 et seq. Allison, as his former employer, thereupon filed with the Employment Security Division a 'report of unemploymnt' on the basis of which the claims deputy concluded the appellant had been discharged for misconduct in connection with his work and denied relief as provided by Burns' Stat. § 52-1539, which reads as follows: 'An individual shall be ineligible for waiting period or benefit rights: For the week in which he has left work voluntarily without good cause or has been discharged for misconduct in connection with his work, and for the five (5) next following weeks, in addition to the waiting period; * * *.' The matter eventually found its way to the Review Board of the Indiana Employment Security Division which after a hearing on January 13, 1950, entered the following finding and decision:

'Findings and Conclusions: The Review Board finds that the claimant was discharged for misconduct in connection with his work on November 10, 1949. His attitude and actions toward his superior constituted insubordination on his part and clearly indicates that he had a total disregard of his employer's rights and interests, which constitutes misconduct in connection with his work.

'Decision: The Review Board hereby affirms the decision of the Referee and holds that the claimant was discharged for misconduct in connection with his work on November 10, 1949, and the statutory penalty is imposed.'

This appeal challenges the sufficiency of the evidence to sustain the finding that the appellant was guilty of misconduct 'in connection with his work' as that term is used in the statute above set out and under which the board seeks to justify its decision.

The facts are not in dispute in essential detail and indicate that the appellant was employed by the appellee Allison Division of General Motors Corporation from January 17 to November 10, 1949, when he was discharged. During such period his duties were those of a posting clerk in the Materials and Control Department where there were three other men similarly employed. When he was first hired he was told by his immediate supervisor that after a reasonable time he would be given consideration for a salary increase but after six months of satisfactory work he received no encouragement in that respect. He also felt that his supervisor had discriminated against him in that he was not given an opportunity to work overtime although his fellow employees had done so repeatedly. In his own words, 'that didn't sit very well and it naturally made a dissatisfied employee.' He talked with the 'other boys in the office' about his inability to get overtime work and told them that some day his supervisor, when he could not get anyone else to work overtime, would ask him to do so and he would refuse, the inference being that in this manner he would hinder and inconvenience his employer impede the work and thus avenge, to some extent, past acts of discrimination. His opportunity came on Saturday night November...