Wolfe v. Review Bd. of Indiana Employment Sec. Division

• Decision Date: 27 April 1978
• Docket Number: No. 2-477A148,2-477A148
• Citation: 176 Ind.App. 287,375 N.E.2d 652
• Parties: Jack A. WOLFE, Appellant (Defendant below), v. REVIEW BOARD OF the INDIANA EMPLOYMENT SECURITY DIVISION, and Nelson Oil Company, Appellees (Plaintiff below).
• Court: Indiana Appellate Court

Page 652

375 N.E.2d 652

176 Ind.App. 287

Jack A. WOLFE, Appellant (Defendant below), v. REVIEW BOARD OF the INDIANA EMPLOYMENT SECURITY DIVISION, and Nelson Oil Company, Appellees (Plaintiff below).

No. 2-477A148.

Court of Appeals of Indiana,Second District.

April 27, 1978.

L. Peter Iverson, David F. Shadel, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Terry G. Duga, Deputy Atty. Gen., Indianapolis, for appellees.

STATON, Presiding Judge.

Jack Wolfe quit his job with the Nelson Oil Company. He was denied unemployment compensation because the review board found that he did not leave with good cause connected with the work. Wolfe appeals from that negative decision and specifically asserts: (1) that the review board failed to make findings relative to each of the reasons he gave for leaving; and (2) that the employer failed to comply with time limitations within statutory regulations.

The cause is reversed and remanded to the review board for action not inconsistent with this opinion.

I. Evidence Before the Board

Wolfe's testimony at the referee hearing included eight reasons why he quit.

(1) Wolfe was expected to work every Saturday all day, contrary to the understanding when he was hired that he was to work one-half day Saturday every other week.

(2) Wolfe did not get a raise which he had been promised.

(3) Wolfe was required to make mechanical repairs on heating equipment and on his truck with no additional compensation.

(4) Employer insinuated that Wolfe had stolen wheel bearing lubrication.

(5) Employer refused to allow Wolfe any time off to get his car fixed.

(6) Employer refused to get a dangerous condition on a truck repaired; condition caused Wolfe injury.

(7) Employer refused to allow any time off for Wolfe to get doctor-ordered x-rays taken.

(8) Employer physically threatened Wolfe; this threat immediately preceded Wolfe's voluntary termination.

Wolfe stated to the referee that "I know jobs is hard to find. I think I'm at the age that I know that you just don't walk off the job nowadays and find another one. I fully realize. But after all, a man can just take so much."

The referee issued his decision, and that decision was adopted by the full review board. The board found that:

"(T)he claimant voluntarily left his employment on October 18, 1976. The claimant now relies on duties he performed voluntarily to support his contention that he left his employment for good cause. The referee (the review board) finds that these reasons represent a personal dissatisfaction with the work, and while perhaps substantial and compelling reasons for leaving his employment do not constitute good cause in connection with the work within the meaning of the Act. In regards to the factual dispute as to the number of days per week claimant was required to work, the referee (the review board) concludes from the testimony of both parties that the arrangement was somewhat flexible. Therefore, the referee (the review board) finds that the dispute regarding claimant's hours does not constitute good cause in connection with the work within the meaning of the Act for the separation. . . ."

Wolfe concedes that the review board's decision disposed of (1), (2), and (3) unfavorably to him; and he does not argue those reasons upon appeal. Rather, he focuses upon reasons (6), (7), and (8) and alleges that the review board failed to make any findings relevant thereto. He argues that such failure renders the decision contrary to law.

II.

Standard of Appellate Review

IC 1971, 22-4-17-12, Ind.Ann.Stat. § 52-1542k (Burns Code Ed.) provides that

"Any decision of the review board shall be conclusive and binding as to all questions of fact. . . . An assignment of errors that the decision of the review board is contrary to law, shall be sufficient to present both the sufficiency of the facts found to sustain the decision, and the sufficiency of the evidence to sustain the findings of fact. . . ."

Wolfe's argument that the board's decision is contrary to law necessitates a thorough examination of the scope of appellate review of review board decisions. We are cognizant that a board's decision is conclusive and binding as to all questions of fact. However, we are here faced with a failure of the board to decide all of the facts; the board concluded that the disagreement concerning hours was not good cause for voluntary termination of employment, but did the board even consider Wolfe's other reasons? On appellate review, do we presume that no finding on an issue is a negative finding on that issue?

The Indiana Supreme Court, in Cole v. Sheehan Construction Co. (1944), 222 Ind 274, 53 N.E.2d 172, discussed this very question in the context of a workmen's compensation case. ¹ The Court held that when an administrative board makes no finding as to some of the material issues, and when the claimant has properly preserved the error by designating the decision contrary to law, the reviewing court no longer may affirm by merely determining whether there was some evidence to support an award. Rather, the Supreme Court characterized such rubber stamp actions of an appellate level court as an invasion of the province of the full administrative board. In other words, the Court held that an appellate court should not undertake to find ultimate facts; the cause should be remanded to the board for findings.

Since Cole, many Indiana decisions have held that

"(I)t is the statutory duty of a quasi judicial fact-finding board or commission to specifically find the facts upon each element essential to support the award, that such failure raises no presumption as to facts not found, and is cause for remanding the case for determination on each of the elements necessary to support the award. . . ." (Emphasis added.) See Stoner v. Howard Sober, Inc. (1954), 124 Ind.App. 581, 587, 118 N.E.2d 504, 507.

Transport Motor Express, Inc. v. Smith (1972), Ind.App., 289 N.E.2d 737, discussed at length the need for specific findings and the difference in function between an administrative board and the appeals court.

"The Board's domain is the facts; ours is the law. We usurp its authority if we find by presumption the facts it fails to find expressly. It frustrates our review authority when it fails to make its findings of fact specific enough to make an intelligent review possible. . . . Its finding of facts is minimally 'specific enough' for that purpose when, and only when, we are not required to weigh the evidence ourselves, or to presume that the Board reached certain results when it weighed the evidence, in order to determine that the Board's finding of an ultimate fact is or is not 'contrary to law.' . . . (T) he Board's finding should go beyond this minimal requirement of resolving the factual disputes and should state all the relevant underlying or basic, facts."

The Transport Motor Express decision also decries the evolution of administrative appeals which designate as issues the sufficiency of evidence sustaining the award rather than the sufficiency of the facts found. Id. at 749.²

Since 1972, other Indiana cases have continued to emphasize the need for specific findings of fact. See citations in Whispering Pines Home for Sr. Citizens v. Nicalek (1973), 157 Ind.App. 478, 300 N.E.2d 669; and, Delaware Machinery & Tool Company v. Yates (1973), 158 Ind.App. 167, 301 N.E.2d 857; DeMichaeli & Associates v. Sanders (1976), Ind.App., 340 N.E.2d 796. Perhaps it is still the case that review boards do not know how to make specific findings. But, we believe that it is time the administrative boards learned. A finding of fact "must contain all the specific facts relevant to the contested issue or issues so that the court may determine whether the Board has resolved those issues in conformity with the law." Whispering Pines Home for Senior Citizens v. Nicalek (1975), Ind.App., 333 N.E.2d 324, 326. Reviewing courts have been too tolerant of findings which are not things of beauty. See note 3, Board of Commissioners of Henry County v. Dudley (1976), Ind.App., 340 N.E.2d 808, 812.

"The obvious purpose of the act requiring a finding of fact is to inform both the parties and the court of review as to the factual basis on which the award was made. Therefore, it reasonably follows that such findings of fact should be made specifically and not generally, so as to enable this court to intelligently determine, without resorting to the evidence, whether or not there was proper factual foundation upon which to legally base an award." Stoner v. Howard Sober, Inc. (1954), 124 Ind.App. 581, 591-592, 118 N.E.2d 504, 509.

It follows that when an award is negative, the findings of fact by the board should exclude every possibility of recovery. Stoner v. Howard Sober, Inc., supra. The findings of fact issued pursuant to review of Wolfe's claim fail to specifically exclude Wolfe's reasons (6), (7), and (8). Therefore, according to Indiana statutory and case law, the cause should be remanded to the Indiana Employment Security Division Review Board for specific findings addressed to each of the issues raised by Wolfe.

This remand is necessary for another reason. The United States Supreme Court in Goldberg v. Kelly (1970), 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287, held that minimal due process requires a statement of the reasons for an administrative decisionmaker's determination and an indication of the evidence upon which the decisionmaker relied. Indiana's prescribed procedure clearly would carry the Constitutional burden if it were always followed. But, the Goldberg Court points out that where a claimant seeks benefits which are meted out by an administrative agency, the agency must at least inform the claimant why he is being denied those benefits. We believe that this is particularly applicable where, as here, a statute sets out a standard, voluntary termination of employment with good cause, and Wolfe has asserted that he qualified for...