Sloan v. Review Bd. of the Indiana Employment Sec. Div.

• Decision Date: 25 January 1983
• Docket Number: No. 2-782A210,2-782A210
• Citation: 444 N.E.2d 862
• Parties: Richard D. SLOAN, Claimant-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 City of Fort Wayne--Street Department, Employer, Defendants-Appellees.
• Court: Indiana Appellate Court

Page 862

444 N.E.2d 862

Richard D. SLOAN, Claimant-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 City of Fort Wayne--Street Department, Employer, Defendants-Appellees.

No. 2-782A210.

Court of Appeals of Indiana Third District.

Jan. 25, 1983.

Lebrato & Miller, Fort Wayne, for claimant-appellant.

Linley E. Pearson, Atty. Gen., Gorden R. Medlicott, Deputy Atty. Gen., Indianapolis, Bruce O. Boxberger, City Atty., Fort Wayne, for defendants-appellees.

GARRARD, Judge.

This is an appeal from a decision of the Review Board finding Richard Sloan ineligible for unemployment compensation benefits after his discharge from the Fort Wayne Street Department.

The evidence viewed from the perspective favoring the Review Board's decision discloses that Sloan was employed by the street department through the CETA program in 1976 and became a regular city employee with the department in 1978. Although street department employees were represented by a union and a collective bargaining agreement covered their terms of employment, Sloan did not personally belong to the union.

On February 7, 1980, Sloan burst into the office of Street Commissioner Underwood and commenced telling Underwood that he lacked authority to do certain things and that he had violated the collective bargaining agreement. Sloan's attitude was described as sarcastic at this and the subsequent meetings. Sloan was apparently protesting a change in work hours that had been initiated by the commissioner. In doing so, however, he ignored the established contractual procedures for the determination of grievances.

The following day Sloan was summoned to Underwood's office for a meeting. During the ensuing conversation Sloan produced and activated a tape recorder, saying he needed it for his own protection. When Sloan began tape recording the conversation he was told that the tape recorder was unnecessary and should be turned off. In addition, at that point Underwood secured the presence of the union steward before any more was said. When the conversation resumed Sloan again turned on the recorder. He was asked, then ordered, to stop recording. When he flatly refused to follow the express direction to turn off the machine, he was suspended from work for three days.

The next meeting between Sloan and Underwood occurred the day of Sloan's return from his three day suspension. Underwood encountered Sloan in the general foreman's office where Sloan was "raising holy hell" and was attempting to record the meeting with the foreman. This meeting was occurring at a time when Sloan should have been working.

Underwood took Sloan and the others to Underwood's office to resolve the dispute. Sloan began tape recording this meeting and Underwood advised him that he should stop. Sloan refused and Underwood asked him again, pointing out that the union steward and others were present. Sloan again refused. Finally, Underwood ordered Sloan to turn off the recorder. When Sloan flatly refused, he was asked if he was deliberately disobeying an order of the street commissioner. When Sloan responded "yeah," he was terminated.

When Sloan applied for unemployment compensation, a claims deputy granted benefits. At the employer's request a hearing was then held before a referee. The referee found that Sloan was not violating any written rule of the employer and further found:

"[T]he claimant was not refusing to carry out a particular task or job within his laborer's classification. In other words, the instructions given to the claimant which was [sic] the basis of the discharge, did not arise out of the service for which he was engaged by this employer." (Emphasis added)

Accordingly, the referee concluded Sloan was entitled to benefits.

The Review Board reversed the referee's determination, finding that Sloan was discharged for insubordination in refusing to obey the employer's instructions to cease recording the meeting, that the discharge occurred when for the third time since February 8, 1980 he refused to obey the employer's instructions not to record meetings, and that the refusal breached the duty he reasonably owed his employer.

Sloan's appeal raises essentially three issues: ¹ (a) whether the board's findings were adequate to permit review; (b) whether the decision is contrary to law; and (c) whether the statutory review process denied him due process.

IC 22-4-15-1 includes within the definition of "discharge for just cause" that will disqualify a claimant for benefits "knowing violation of a reasonable and uniformly enforced rule of an employer," "refusing to obey instructions," or "any breach of duty in connection with work which is reasonably owed employer by an employee."

We agree with Sloan's general assertion that the findings entered by an administrative agency must be such as to inform the parties of the evidentiary bases upon which the ultimate finding rests and to permit this court to engage in meaningful review. Perez v. United States Steel Corp. (1981), Ind., 426 N.E.2d 29.

Sloan contends the findings before us are deficient because the Review Board failed to make a finding that the employer's instruction was reasonable. We disagree.

The board expressly found that Sloan was twice ordered on February 8 to cease recording and was given a three day suspension when he refused to comply on the second occasion; that he refused to obey the instruction to cease on February 13; that he was discharged for insubordination for that refusal; that the refusal "breached the duty reasonably owed," and constituted just cause for discharge within the meaning of the act.

We acknowledge, as Sloan contends, that reasonableness is an implicit element in the statute's use of "refusal to obey instructions" as an illustration of discharge for good cause. Graham v. Rev. Bd. (1979), Ind.App., 386 N.E.2d 699. But as such, it is equally implied in the Review Board's finding that the refusal breached Sloan's reasonable duty to his employer. As in Graham, Sloan's argument confuses the procedural issue of whether the findings are adequate to advise, with the substantive issues of whether they are sustained by the evidence or lead as a matter of law to a conclusion contrary to that reached by the board. The findings in the instant case are not deficient.

Sloan next contends that the Review Board's decision does not rest on a rational basis and therefore is contrary to law. He argues that there was no evidence produced as to how recording conversations harmed the employer or that there was a uniformly enforced rule against recording.

In a discharge case, the burden of establishing just cause initially rests with the employer. However, when the employer establishes a prima facie case the burden shifts to the employee to introduce competent evidence to rebut...