Thomas Products Co. v. Review Bd. of Indiana Employment Sec. Division, 868A131

• Docket Nº: No. 868A131
• Citation: 251 N.E.2d 473, 145 Ind.App. 425
• Case Date: October 14, 1969
• Court: Court of Appeals of Indiana

Page 473

251 N.E.2d 473 145 Ind.App. 425 THOMAS PRODUCTS CO., Inc., Appellant,
v.
REVIEW BOARD OF THE INDIANA EMPLOYMENT SECURITY DIVISION,
William H. Skinner and Richard D. Cobb, as Members of and as
constituting the Review Board of the Indiana Employment
Security Division; and Henry S. Gross, Appellees. No. 868A131. Appellate Court of Indiana, Division No. 1, Oct. 14, 1969.
Rehearing Denied Dec. 2, 1969.

[145 Ind.App. 426] John H. Baldwin, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Indianapolis, William E. Matheny, Deputy Atty. Gen., for appellees.

SULLIVAN, Judge.

Prior to his discharge on November 8, 1967, claimant-appellee, Henry S. Gross, was employed as a machine operator by appellant Thomas Products Company, Inc. (hereinafter referred to as the employer). A claim by the employee for benefits under the Indiana Employment Security Act was denied by a claims deputy. An Employment Security Division appeals referee thereafter determined that Gross was not guilty of misconduct in connection with his work and that he was therefore, if otherwise eligible, entitled to benefits. The Review Board affirmed the decision of the referee, from which affirmance the employer prosecutes this appeal.

[145 Ind.App. 427]

Page 474

The Statement of Facts made by the Review Board in its decision and as supported by the record is as follows:

'* * * The employer testified that claimant was capable of performing satisfactory work and his work was generally satisfactory.

'The record shows that on November 8, 1967, the employer was informed by an employee, a witness of record, that claimant had a pistol in his possession in his car which was parked on the employer's parking lot about 4:30 P.M., November 7, 1967; that some weeks prior to November 7, 1967, this witness also had seen a small hand gun in claimant's lunch pail in the employer's shop. The employer stated: 'Twice during the morning hours of November 8 a lady that is employed there, Maxine Crail, reported (claimant) twice that day told her he had this concealed weapon * * * I called the Marion County Sheriff's office and asked for help.' Claimant and his car were searched by two deputies in the presence of the employer but no weapon was found. The employer testified that he had never seen a small hand gun in claimant's possession, and 'If the authorities trusted a man to give a man a permit (claimant did not have a permit) to carry a gun, he would be welcome to carry it on my property.' The employer had no rule forbidding employees to carry a hand gun and on three different occasions over a period of several months he had been told that claimant had brought a pistol onto the premises but did not talk to claimant or warn him about it.

'Claimant testified that he had carried a small gun, while driving back and forth to work, to protect himself from threatened bodily harm; that the gun, while in the plant, was unloaded in his lunch pail and the bullets were in his shirt pocket. The record indicates that in the past both the employer and claimant had brought hunting guns onto the premises for cleaning and testing; and since the employer had not objected to a hunting gun, claimant thought there would be nothing wrong in bringing a hand gun onto the premises. There is no testimony of record to show claimant intended to harm any of his fellow workers. ¹ Claimant's [145 Ind.App. 428] testimony indicates that he would have discontinued bringing the gun into the plant if he had known there was any objection by the employer or other employees.'

In addition thereto, the decision of the appeals referee contained factual recitations supported by the evidence to the effect that although employer's president heard reports from other employees that claimant on prior, widely separated, occasions had displayed a pistol he did not investigate the rumors because he had no reason to suspect that Gross had any violent intent. Nor did the employer question Mr. Gross as to whether he had a permit or as to the reason Gross was carrying a gun.

The 'Findings and Conclusions' of the Review Board are as follows:

'The Review Board finds that claimant was employed by the employer herein approximately 18 months as a machine operator and was considered a generally satisfactory employee.

'It further finds that the employer, on November 8, 1967, discharged claimant because of reports that he was purportedly carrying a concealed weapon, and had displayed same on the employer's premises on November 7, 1967.

'It further finds that claimant, on previous occasions, had brought a small gun

Page 475

onto the employer's premises and the employer had been informed by other employees when this occurred.

'It further finds that prior to the date of his discharge, the employer had neither questioned claimant nor warned him about bringing a small gun onto the premises.

'It further finds that no objection by the employer to a hunting gun being brought onto the premises led claimant to believe that there would be no objection to a hand gun.

'The Review Board concludes that claimant's action does not constitute misconduct in connection with his work within the meaning of the Act since the employer had not, over a period of several months, warned claimant or objected to his bringing a small hand gun onto the premises.

'It further concludes that the employer has failed to sustain its burden of proof to show that claimant's actions or conduct represent a wanton or wilful disregard for the [145 Ind.App. 429] employer's interests, a deliberate...