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

• Decision Date: 14 October 1969
• Docket Number: No. 868A131,No. 1,868A131,1
• Parties: 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
• Court: Indiana Appellate Court

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.

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. 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 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 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 employer's interests, a deliberate violation of the employer's rules, or a wrongful intent. (Massengale v. Review Board, 120 Ind.App. 604 (1950), 94 N.E. (2d) 673).'

As stated most recently in Anderson Motor Service, Inc. v. Review Board (1969), Ind.App., 247 N.E.2d 541,

'It is well established that the decision of the Review Board is conclusive and binding as to all questions of fact and this court may not disturb the decision unless reasonable men would be bound to reach the opposite conclusion from the evidence in the record. (Citation omitted)'

The statute here controlling, as in the Anderson Motor Service case, supra, clearly renders ineligible for benefits individuals who have been discharged for misconduct in connection with their work. Acts 1947, ch. 208, § 1501, as amended and as found in Burns' Indiana Statutes Annotated (1964 Repl.), § 52--1539.

In Arthur Winer, Inc. v. Review Board (1950), 120 Ind.App. 638, 95 N.E.2d 214, as quoted in the Anderson Motor Service case, supra, the term 'misconduct' was defined as conduct 'evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer.'

It is the basic contention of the appellant-employer that by carrying an unlicensed firearm onto the employer's premises, the claimant committed a criminal act in disregard of the employer's interests and by frightening fellow employees violated behavioural standards which an employer has a right to impose. Appellant therefore asserts that the decision of the Review Board is contrary to law.

We would agree that under most circumstances the carrying of an unlicensed concealed weapon onto an employer's premises without specific permission or valid reason for doing so constitutes grounds for reprimand, discipline, suspension or even termination; but in our opinion, at least under these facts, such action does not constitute statutory 'misconduct' sufficient for discharge.

The evidence here indicates that the employer had other subjective reasons more immediate and persuasive (though statutorily insufficient) for termination of Mr. Gross' employment. Claimant's son was implicated in a burglary of employer's premises a short time prior to claimant's discharge. We need look no further than the appellant-employer's own testimony as follows:

'I'd just like to say if Henry had not been discharged for concealed weapon or threats of a concealed weapon, he would have been discharged when I learned his boy had the tools, the air compressor, and the...