National Furniture Mfg. Co. v. Review Bd. of Indiana Employment Sec. Division

• Decision Date: 18 November 1960
• Docket Number: No. 19354,No. 1,19354,1
• Parties: NATIONAL FURNITURE MANUFACTURING COMPANY, Incorporated, Appellant, v. REVIEW BOARD OF THE INDIANA EMPLOYMENT SECURITY DIVISION, William S. McMaster and John M. Harrigan (William G. Johnson, Member, not participating), as Members of and as constituting the Review Board of the Indiana Employment Security Division; and Shirley K. Taylor, Appellees
• Court: Indiana Appellate Court

Page 381

170 N.E.2d 381

131 Ind.App. 260

NATIONAL FURNITURE MANUFACTURING COMPANY, Incorporated, Appellant, v. REVIEW BOARD OF THE INDIANA EMPLOYMENT SECURITY DIVISION, William S. McMaster and John M. Harrigan (William G.

Johnson, Member, not participating), as Members of and as

constituting the Review Board of the Indiana Employment

Security Division; and Shirley K. Taylor, Appellees.

No. 19354.

Appellate Court of Indiana, Division No. 1.

Nov. 18, 1960.

Isidor Kahn, Willard C. Shrode, Evansville, Kahn, Dees, Donovan, Kahn & Shrode, Evansville, of counsel, for appellant.

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

AX, Presiding Justice.

This is an action brought by the appellee, Shirley K. Taylor, against the appellant, National Furniture Manufacturing Company, Incorporated, for benefits under the Indiana Employment Security Act, by reason of the aforesaid appellee having become unemployed on January 19, 1959.

The appellee, Shirley K. Taylor, filed his report of unemployment with the Indiana Employment Security Division on January 23, 1959, together with his claimant's statement, claiming benefits under the terms of the Indiana Employment Security Act on the ground that he became unemployed on January 19, 1959, the last day of his employment with the appellant. The appellant filed an employer's statement and contended that the appellee on January 19, 1959, quit his employment voluntarily without good cause.

On February 10, 1959, the Evansville office of the Indiana Employment Security Division entered a finding and conclusion that appellee quit his employment because of a justified reprimand, and that such action amounted to quitting voluntarily without good cause. On this conclusion, it was determined that the appellee's benefit rights were suspended as of January 19, 1959, and, thereafter, until such time as said appellee earned the amount of ten times his weekly benefit amount in employment, as defined by the Indiana Employment Security Act. Within the time provided by law, the appellee filed a form No. 601 for a hearing before a referee. On the 5th day of March, 1959, John C. Castelli, Appeals Referee of the Indiana Employment Security Division, affirmed the determination and ruling of the Evansville office. Within the time provided by law, the appellee filed a form No. 651 request for an appeal to the Review Board of the Indiana Employment Security Division. Upon review the Review Board, refusing to grant appellee's request to submit additional evidence and upon the review of evidence previously submitted, found that the appellee voluntarily quit his employment and with good cause, and reversed the decision of the referee. This appeal is brought by the appellant's assignment that such decision is contrary to law.

There is no dispute involved concerning the fact that appellee left his employment voluntarily--so, we have here the question of whether or not, when he left voluntarily, he left with or without good cause. This involves an interpretation of the applicable portion of the Indiana Employment Security Act, § 1501, as found in Burns' 1951 Repl. (1957 Supp.), § 52-1539, reading 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 all weeks subsequent thereto until such individual has thereafter earned remuneration equal to not less than ten (10) times his weekly benefit amount in employment as defined in section 1508 hereof; * * *.' (Our emphasis.)

The Review Board in this case made the following findings, conclusions and decision:

'Voluntary quitting in anticipation of discharge will be considered to be with good cause wherein evidence reveals that discharge was imminent and had claimant been discharged, it would not have been for misconduct in connection with his work.

'Statutory Provisions Involved: Indiana Employment Security Act, § 1501, as found in Burns' 1951 Repl., 1957 Supp., § 52-1539, (hereinafter referred to as the Act).

'Case History--Source of Appeal: The claimant brings this appeal to the Review Board from the decision of the referee in Case No. 59-A-424, wherein the referee held that claimant left his work voluntarily without good cause on January 19, 1959. In accordance with due notice, hearing was held before the Review Board at Indianapolis, Indiana, on April 28, 1959. The employer failed to appear and claimant appeared in person.

'Statement of Facts: Claimant was employed for approximately eleven months as a truck driver for the employer herein. The claimant quit his employment on January 19, 1959, for the reason that he believed that a discharge by his employer was imminent and would be unjustified. The claimant testified at a hearing before an appeals referee on February 27, 1959, and it is undisputed, that while operating a truck for the employer, he had two flat tires and, pursuant to instructions of his employer, he contacted a service station for the purpose of repair and replacement. The evidence reveals that after claimant was able to continue toward his destination, one of the wheels became removed from the vehicle, thereby causing damage to the employer. The claimant contends that the reason for the damage was the fact that it was the negligence of the serviceman in putting the tire and wheel on backward but the employer contended it was the result of the claimant's carelessness and negligence in not making proper inspection. The claimant testified that he did check the wheel to make certain that it was secured but did not observe at that time that it had been improperly installed. Subsequent thereto, more specifically, on January 19, 1959, the claimant was called before the employer's Personnel Manager, the Production Manager, and a Mr. Ottaman and severely reprimanded for the incident. The claimant testified that the three employer's representatives referred to carried on a conversation between themselves, and in the presence of and audible to the claimant, to the extent that claimant believed that he was going to be discharged, and therefore he submitted his resignation. At said hearing before the referee, claimant brought out, on cross-examination of the Personnel Manager, that during the conference of January 19, the Production Manager had made the remark to the claimant that perhaps the claimant would be better in another job and also that there had been mentioned the claimant should quit. The Personnel Manager, in response to a question by the referee as to whether or not the claimant would have been permitted to continue in his employment, answered: 'I think so.' The claimant was of the opinion that it would be easier to obtain new employment if his employment record would show that he had quit rather than having been discharged.

'Findings and Conclusions: The Board finds that the claimant had been employed approximately eleven months as a truck driver by the employer herein.

'It is further found that on January 19, 1959, claimant voluntarily quit his employment for the reason that he believed that he faced an immediate discharge by this employer for the reason of one of the employer's trucks, which claimant had been operating, having been damaged.

'It is further found that the damage caused to employer's truck was the result of the negligence of a third party, a service station attendant, who placed a wheel on said truck improperly.

'It is further found from the evidence that it was most reasonable for claimant to believe that he was about to be discharged, particularly in view of the testimony of the Personnel Manager, who wasn't positive that the claimant would have been permitted to remain in his employment had he not quit.

'The Board concludes from the evidence that the claimant acted as a reasonable and prudent person in relying upon the workmanship of the service station attendant performing the common task of installing a wheel on the employer's truck; that it was the negligent act of the third party, and not the claimant, which caused the accident resulting in damage to the employer.

'It is further concluded from the evidence that had claimant been discharged, it would not have been for misconduct in connection with his work and his voluntary act of quitting on January 19, 1959, was with good cause.

'Decision: The decision of the referee reversed. Claimant voluntarily quit his employment and with good cause on January 19, 1959, and if otherwise eligible, he is entitled to unemployment benefits for the period in question.'

In our determination of this case, we are faced at the outset with § 52-1542k, Burns' Ind.Stat., which provides in part that 'any decision of the review board shall be conclusive and binding as to all questions of fact. * * *.'

Also, we are bound by the recent decision of our Court handed down in the case of Nordhoff v. Review Board of Ind. Empl. Sec. Div., 1959, Ind.App., 156 N.E.2d 787, wherein we held that the question of whether or not the appellee employee voluntarily quit his work with or without good cause is primarily a fact question for the Review Board; and the question of what is good cause must ultimately be determined in the light of all of the facts of the particular case.

It is apparent in reading the above findings and conclusions of the Review Board that it concluded that the appellee had good...