Moore v. Review Bd. of Indiana Employment Sec. Division

• Decision Date: 30 June 1980
• Docket Number: No. 2-180A26,2-180A26
• Citation: 406 N.E.2d 325
• Parties: Betty A. MOORE, Appellant, v. REVIEW BOARD OF the INDIANA EMPLOYMENT SECURITY DIVISION, William H. Skinner, David L. Adams and Paul M. Hutson, as Members of and as constituting the Review Board of the Indiana Employment Security Division, and Foundtain (sic ) View Nursing Home, Appellees.
• Court: Indiana Appellate Court

Page 325

406 N.E.2d 325

Betty A. MOORE, Appellant, v. REVIEW BOARD OF the INDIANA EMPLOYMENT SECURITY DIVISION William H. Skinner, David L. Adams and Paul M. Hutson, as Members of and as constituting the Review Board of the Indiana Employment Security Division and Foundtain (sic ) View Nursing Home, Appellees.

No. 2-180A26.

Court of Appeals of Indiana, Third District.

June 30, 1980.

L. Peter Iverson, Legal Services Organization of Indiana, Inc., Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Carmen L. Quintana, Deputy Atty. Gen., Indianapolis, for appellees.

STATON, Judge.

Betty A. Moore appeals from a decision of the Review Board of the Indiana Employment Security Division affirming the referee's denial of benefits under the Indiana Employment Security Act. On appeal, Ms. Moore raises three issues for our consideration. Because of our disposition of the case, we will limit our discussion to only one issue. Ms. Moore asks, if the Review Board's findings, as related to her reinstatement following her incorrect discharge, were contrary to law and unsupported by substantial evidence?

We reverse and remand.

The relevant facts indicate that Ms. Moore was discharged on September 11, 1979. She filed a claim for unemployment compensation benefits the same day. On October 5, 1979, a claims deputy of the Indiana Employment Security Division denied Ms. Moore's benefits and found that she had voluntarily left "employment without good cause in connection with the work when she walked off the job and refused to return." ¹

Ms. Moore then requested and received a hearing before a referee. On November 7, 1979, the referee entered his decision affirming the decision of the deputy. Ms. Moore appealed to the Review Board which reviewed the record of the referee hearing and issued its decision without a hearing. It affirmed the referee's decision and adopted his findings and conclusions:

"FINDINGS OF FACT: The claimant worked for this employer from March 6, 1976, to September 11, 1979. She was an assistant supervisor in the kitchen earning $3.95 per hour. The claimant was incorrectly discharged from employment by this employer. The next day the claimant was reinstated by the administrator. This was because the claimant had been "discharged without following progressive discipline. The claimant was offered new employment starting at 7:30 a. m. in the morning until 6:00 p. m. in the evening except on Wednesdays and Thursdays when she was to work from 5:00 p. m. to 1:30 a. m. The claimant had a son in nursery school that she had to pick up at 5:00 p. m. If she failed to do so she would have to pay $15 for each five minutes she was late or the boy would have to be taken to a foster home and picked up there. This offer occurred on the 12th of September. On that same day she quit. She was a member of the Retail Clerk's Union Local 725. She failed to file any grievance. The employer wanted her to work these hours because of problems they were having with the patients' diets.

"CONCLUSIONS OF LAW: The claimant voluntarily left employment without good cause in connection with the work. The claimant left this employment for purely personal reasons."

Ms. Moore argues that the findings that she was "reinstated and that she quit are not supported by any evidence and are contradicted by other findings of fact which were made by the referee and adopted by the Review Board."

In reviewing a determination of the Review Board, this Court is limited to an examination of the evidence and the reasonable inferences drawn therefrom which support the Board's decision. Shoup v. Review Bd. of Ind. Employment Sec. Div. (1980), Ind.App., 399 N.E.2d 771. We must accept the facts as found by the Review Board unless its findings fall within one of the exceptions for which this Court may reverse. Shoup, supra. A reversible error has been committed if there is no substantial evidence supporting the conclusions of the Review Board. Siddiqi v. Review Bd. of Ind. Emp. Sec. Div. (1979), Ind.App., 388 N.E.2d 613; Williamson Co. v. Review Bd. of Indiana Emp. Sec. Div. (1969), 145 Ind.App. 266, 250 N.E.2d 612, 616.

An at-will employment agreement is a contract in which mutuality and voluntariness are required; it is formed when an offer of work is accepted. Because it is a contract at will, it may be unilaterally terminated by either party. Once terminated, however, a meeting of the minds is necessary in order to once again establish the employment relationship. Batts v. Review Bd. of Ind. Employment Sec. Div. (1979), Ind.App., 385 N.E.2d 1174.

In Jones v. Review Board of Ind. Emp. Sec. Div. (1980), Ind.App., 399 N.E.2d 844, the appellant protested a change in her working hours which had been established by prior agreement with her employer. Nevertheless, she agreed to accept the change. Later, she informed her supervisor that she would be unable to work the new hours because of parental responsibilities. Judge Garrard's comments in Jones, supra at 845 are particularly instructive here:

"Generally, an employer has the prerogative of setting business hours, working schedules and working conditions in the absence of a specific agreement. However, an employee has the right to place conditions or limitations on his employment. If such conditions are made known to the employer and are agreed to by it, these conditions become contractual working conditions. If the working conditions are unilaterally changed by the employer and the employee chooses to terminate the employment rather than accept the change, the employee will be entitled to unemployment benefits since the reason for termination was a change in work agreed to be performed by the employee. Such reason constitutes good cause. Wade v. Hurley (1973), 33 Colo.App. 30, 515 P.2d 491; Gray v. Dobbs House, Inc. (1976),...