Williamson Co. v. Review Bd. of Indiana Employment Sec. Division

• Court: Court of Appeals of Indiana
• Citation: 250 N.E.2d 612,18 Ind.Dec. 403,145 Ind.App. 266
• Docket Number: No. 968A165,No. 2,968A165,2
• Parties: The WILLIAMSON COMPANY, Appellant, v. REVIEW BOARD OF the INDIANA EMPLOYMENT SECURITY DIVISION, William H. Skinner, Richard D. Cobb, and John E. Bushart, as Members of and as constituting the Review Board of the Indiana Employment Security Division, and Carl E. Fry, Appellees
• Decision Date: 10 September 1969

Page 612

250 N.E.2d 612

145 Ind.App. 266

The WILLIAMSON COMPANY, Appellant, v. REVIEW BOARD OF the INDIANA EMPLOYMENT SECURITY DIVISION, William H. Skinner, Richard D. Cobb, and John E. Bushart, as

Members of and as constituting the Review Board of the

Indiana Employment Security Division, and Carl E. Fry, Appellees.

No. 968A165.

Appellate Court of Indiana, Division No. 2.

Sept. 10, 1969.

William H. Anderson, Thomas A. Brennan, Cincinnati, Ohio, Leland B. Cross, Jr., Indianapolis, for appellant; Graydon, Head & Ritchey, Cincinnati, Ohio, Ice, Miller, Donadio & Ryan, Indianapolis, of counsel.

Theodore L. Sendak, Atty. Gen., John J. Dillon, Former Atty. Gen., William E. Matheny, Deputy Atty. Gen., for appellees.

HOFFMAN, Judge.

This appeal comes to us from a decision of the Review Board of the Indiana Employment Security Division, in favor of appellee, Carl E. Fry, reversing the decision of the Liability Referee.

The operative facts are as follows:

Due to a decline in business, appellant-Williamson Company discontinued its night shift. Approximately 25 employees were laid off and the remaining employees were transferred to the day shift. As a consequence of the cut-back appellee-Fry was transferred from the night shift in the maintenance department to the service line on the day shift. Such transfer was made pursuant to the collective bargaining agreement then in effect which permitted the employer-appellant to use job experience first and then seniority as the basis for assignment of employees for job classifications.

A few minutes before 7:00 A.M. on November 13, 1967, appellee-Fry reported for work and protested his job assignment on the day shift. A meeting was held attended by claimant-appellee, Carl E. Fry, and by Leroy Liter, Supervisor of Final Assembly, Ralph Hord, Personnel Supervisor, and Donald Gassert, Plant Superintendent, all representing the appellant, for the purpose of attempting to resolve the problem raised by Mr. Fry relative to his job assignment. Mr. Fry reiterated his demand that he be given a different job. He pointed out that he had more seniority than two other men who had been transferred from the night shift but who had received better jobs. During this conversation Mr. Gassert told appellee-Fry that he would consider his request for a job transfer for a couple of days. At this point, Fry testified that, 'After discussing this, I saw that I was getting no place. I was nervous and my stomach bothered me and I asked to go home because I didn't feel well.'

Mr. Gassert testified that, 'We were all upset, but he said nothing about being sick. Or wanting to go home because he was sick.' All three of the men present at the meeting on November 13, 1967, representing the appellant, testified that Fry had said nothing about being ill, or wanting to leave on account of illness.

Mr. Fry was told by Mr. Gassert that if he left the plant he would be terminated since there was work available. Nevertheless, appellee-Fry left the plant. Later that day, he returned to obtain separation papers and check. He told Mr. Hord, the supervisor filling out the papers, to be sure and note that he left because he was sick. Mr. Hord refused, maintaining that he never heard Fry state that he was ill. The following morning Fry returned to the plant and presented a note from a doctor which read, 'Carl Fry has been seen with a presumptive diagnosis of peptic ulcer.'

Thereafter, Fry's unemployment benefits were suspended pursuant to Acts 1947, ch. 208, § 1501, p. 673, as last amended by Acts 1967, ch. 310, § 19, p. 1162, § 52--1539, Burns' 1968 Cum.Supp., which provides, in pertinent part, 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 (§ 52--1539g) hereof; Provided, however, That if such individual receives dismissal wages covering a period of time subsequent to such week the disqualification shall become effective at the end of such period.'

Appellee-Fry commenced this action for review of the suspension of these benefits.

Section 52--1539, supra, contemplates two bases for disqualification: 1) Where the employee has voluntarily left work without good cause; and 2) where the employee has been discharged for misconduct in connection with his work.

Appellee-Fry's first hearing was before a Deputy of the Indiana Employment Security Division. On December 15, 1967, the Deputy filed his conclusion, as follows:

'The claimant was discharged for misconduct in connection with his work when he left the plant without the permission of the employer.' (Emphasis supplied.)

Fry timely requested a hearing before a Referee and subsequently such a hearing was held. After a hearing held on February 26, 1968, the Referee entered his summary and decision on March 1, 1968 as follows:

'SUMMARY OF CASE: This is an appeal by the claimant from the determination that he was discharged as of November 13, 1967, for misconduct in connection with his work and for cause not attributable to the employer. Both parties appeared at the hearing.

'The weight of the evidence supports the finding that the claimant left his job in the middle of the shift, following a transfer from maintenance to the service line on the paint booth paying $1.86 an hour, which was less than he formerly earned. It appears that the transfer and reduction were necessary due to a cutback in production.

'In the absence of the claimant having immediate and definite prospects of securing more remunerative employment, it is held that he quit without good cause. Separation is not attributable to the employer. The claimant has failed to establish that his termination was due to union activities.

'DECISION: The determination imposing a disqualification and wage credit cancellation is affirmed.' (Emphasis supplied.)

Thereafter, appellee-Fry filed for an appeal to the Review Board. The appeal was granted and subsequently the Review Board entered its findings and conclusions and decision on August 1, 1968, as follows:

'FINDINGS AND CONCLUSIONS: The Review Board finds that claimant was discharged from his employment on November 13, 1967, by the employer herein.

'It further finds that claimant filed an initial claim for benefits on November 30, 1967.

'It further finds that the employer discontinued the night shift on which claimant worked in the maintenance department and assigned him to the day shift on the service line at a considerable reducting in hourly wage.

'It further finds that claimant thought he was entitled to a better paying job because of his three years' seniority.

'It further finds that claimant discussed this with management personnel prior to starting on the new job, November 13, 1967, and was told by the plant superintendent that he wanted some time to think about the matter.

'It further finds that claimant then stated he was ill and asked for permission to go home but was told he would be terminated is (if) he left.

'It further finds that claimant clocked out at 8:08 A.M. and later in the day saw his doctor who gave him a medical statement indicating he had a 'peptic ulcer.'

'It further finds that the evidence of record does not show that claimant violated any of the employer's rules.

'The Review Board concludes that the employer has failed in its burden of proof to show that claimant's actions on November 13, 1967, represented a wanton or wilful disregard for the employer's interests, was a deliberate violation of the employer's rules, or a wrongful intent on his part. ((Massengale v. Review Bd., Emp. Sec. Div.,) 120 Ind.App. 604 (1950), 94 N.E.2d 673)

'It further concludes that claimant was discharged by the employer herein but not for misconduct in connection with his work within the meaning of § 1501 of the Act.

'DECISION: The decision of the referee, dated March 1, 1968, is hereby reversed this 31st day of July, 1968. It is held that claimant was discharged but not for misconduct in connection with his work. Claimant is entitled to benefits only to the extent he is able to work, available for work, making an independent effort to secure work and is otherwise qualified under the Act.'

Appellant's sole assignment of error is that the decision of the Review Board is contrary to law. The assignment is based on two specification: 1) That the decision is not supported by substantial evidence of probative value; and 2) that the dispute before the Review Board was improperly characterized as a conflict between discharge for misconduct in connection with his work or, a voluntary quit without good cause.

We now turn to a consideration of appellant's first specification of error: That the decision is not supported by substantial evidence of probative value. To properly consider this specification, we deem it necessary to review the applicable legal standards for judicial review of administrative decisions.

The standards for judicial review of decisions of administrative tribunals apply uniformly to all administrative agencies, unless a different standard is required by statute. The Employment Security Act, Acts 1947, ch. 208, has no distinguishing standards and, thus, is subject to the recognized standards of this Court. (See: Acts 1947, ch. 208, § 1812, p. 673, as last amended by Acts 1957, ch. 299, § 6, p. 795, § 52--1542k, Burns' Indiana Anno.Stats.).

A rather basic premise of review is that this Court is not at liberty to weigh the evidence and that we must accept the facts as found by the particular Board involved. This premise applies to findings of the Review Board of the Indiana Employment Security Division. Achenbach v. Review Bd. of Ind. Emp. Sec. Div., 242 Ind. 655,...