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

• Decision Date: 15 December 1961
• Docket Number: No. 19585,19585
• Citation: 132 Ind.App. 587,178 N.E.2d 557
• Parties: Vincent MASSENGALE, Appellant, v. REVIEW BOARD OF INDIANA, EMPLOYMENT SECURITY DIVISION, William S. McMaster, William G. Johnson and Frank C. McAllister, as Members of and as Constituting the Review Board of the Indiana Employment Security Division, and F. H. Langsenkamp Company, Appellees.
• Court: Indiana Appellate Court

Page 557

178 N.E.2d 557

132 Ind.App. 587

Vincent MASSENGALE, Appellant, v. REVIEW BOARD OF INDIANA, EMPLOYMENT SECURITY DIVISION, William S. McMaster, William G. Johnson and Frank C.

McAllister, as Members of and as Constituting the Review

Board of the Indiana Employment Security Division, and F. H.

Langsenkamp Company, Appellees.

No. 19585.

Appellate Court of Indiana, In Banc.

Dec. 15, 1961.

Vincent Massengale, pro se.

Edwin K. Steers, Atty. Gen., Keith Campbell, Deputy Atty. Gen., for appellee Review Board.

John T. Rocap, Indianapolis, for appellee F. H. Langsenkamp Co.

RYAN, Chief Justice.

This is an appeal from the decision of the Review Board of the Indiana Employment Security Division, which decision denied unemployment benefits to the appellant. The statement of facts and findings and conclusions of the Board are set out in full as follows:

'Statement of Facts: The claimant was employed for approximately fifteen months by the employer herein as a shipping and receiving clerk. On Monday, July 18, 1960, the claimant advised the employer that he was resigning his employment as of Friday, July 22, 1960, for the reason that he was dissatisfied with the apportionment of the work. Near the end of his work shift on said date of July 18, 1960, the claimant requested permission to be absent on the following day, Tuesday, July 19, 1960. Said request was made to the employer's vice-president, who was the plant manager and immediate supervisor of the claimant. The claimant admittedly refused to give the vice-president any reason for his intended absence except that it was 'strictly personal'. It is further admitted by the claimant that said vice-president refused claimant's request and informed him that if he was absent, he would be discharged. The vice-president testified: 'I told him again, or re-confirmed to him that we were in our busiest season of the year and that his job was of the utmost importance in the manufacturing department of the shop area and his being off would create a serious condition to our normal production, or words to that effect.' (Tr. p. 5, L 21-25) Upon being refused his request to be absent, the claimant then contacted and had a conversation with the president. The claimant contends that said president gave him permission to be off the following day. However, the president testified that although the claimant repeatedly requested him to consent to the absence, he, the president, advised the claimant that he would not override the decision of the vice-president and advised the claimant not to be absent unless he had permission. The vice-president further testified, and the president confirmed it in his testimony, that he had sole authority in the operation and management of the department in which the claimant was employed including power to discharge an employee. The claimant failed to report for work on the said day of Tuesday, July 19, 1960. The claimant did report for work the following day, Wednesday, July 20, 1960, and found that his time card had been 'pulled' and he was then advised that he had been discharged from his employment for reason of his failure to report for work the day previous. At the time of claimant's discharge, he was being paid $2.10 per hour, ten hours a day and frequently working overtime on Saturdays at a time and a half pay rate. The claimant also testified that at the time he announced his resignation he had no prospect of other employment.

'Findings and Conclusions: The Board finds that the claimant was employed for approximately fifteen months by the employer herein.

'It is further found that on July 18, 1960, the claimant advised the employer that he was resigning from his employment effective July 22, 1960.

'It is further found that on said date of July 18, 1960, claimant requested of his immediate supervisor permission to be absent from work on the following day, July 19, 1960.

'It is further found that the claimant refused to give a specific reason as to why his absence was necessary, and his request was denied by his supervisor.

'It is further found that after being denied permission to be absent, claimant requested permission from the president of the employing company and was again refused.

'It is further found, that notwithstanding the refusal of the employer to give permission, claimant was absent from work on said date of July 19, 1960.

'It is further found that at the time claimant requested permission to be absent, he was advised that his services were needed and that his absence would be detrimental to the employer's business.

'The Board concludes from all the evidence that the claimant's acts and omissions constituted an intentional and willful disregard of the employer's best interest, and he was properly discharged from his employment on July 20, 1960, for misconduct in connection with his work.'

By statutory mandate under Burns' § 52-1542k, we must accept the facts as found by the Board and can disregard them only in the event that they are not sustained by any evidence of probative value, Massengale v. Review Bd., Emp. Sec. Div. (1950), 120 Ind.App. 604, 94 N.E.2d 673, and we can consider only the evidence supporting such findings. National Furniture Mfg. Co. v. Review Bd. of Ind. E. S. D., Ind.App.1960, 170 N.E.2d 381.

While the Indiana Employment Security Act should be construed liberally to give effect to its beneficient, humane and sound economic policy, such liberality...