*1 any it seek to do so at time the did Huffman, HEHR, properly preserve L. Linda S. proceedings. In order Wade Tommy Gray, Bobby J. and L. defense, party the the an affirmative Partin, Appellants, either proving of the defense must
burden
responsive plead-
the defense in a
set forth
v.
litigated
defense
ing, establish that the
was
THE
BOARD OF
INDIANA
REVIEW
litigated
by
parties,
con-
by the
or have
DIVI
EMPLOYMENT
SECURITY
parties.
the
Lawshe
Park
sent of
v. Glen
Mowrer,
SION,
Joe A. Harris
John C.
Co.,
(1978),
Ind.App.
Lumber
Inc.
McDermott, as members
and Nanette L.
Lafary
Lafary
and
supports defense “commission the same evidence which
an offense” is “knowing perform failure
supports a duty,” in rais-
statutory so that error Full
ing the defense was harmless. found, majority, “vio- by a that Hass
Board statutory duty.” that is
lated a The defense a “know-
not the defense. statutory duty.” perform failure to requirement defense an additional
This defen- proof; proved by must be “knowing.” The
dant that failure made as to whether
Board Accord- knowing.
not the “violation”
ingly, even if the defense had been
waived, must be reversed. we do not address
Because we reverse sufficiency of evidence. issue of reasons, decision
For all above and re- Industrial Board is reversed accident whether the
manded determine course out and was
arose
employment. MILLER, JJ., concur.
NEAL
(7)
endangering safety
conduct
of self
coworkers; or
...
connection
owed,
with work which is
employee.”
setting forth the standard of re-
After
claimants,
to all
we will
applicable
view
*3
appeal.
each claimant’s
separately discuss
assignment
An
of errors that the deci-
contrary
to law
sion of the review board
sufficiency of the find-
presents both the
and the
ings of fact to sustain the decision
support
sufficiency of the
evidence
Robbins, Segal
Macey,
L.
Mark T.
Nora
(Burns
22-4-17-12
findings of fact.
I.C.
appellants.
Macey, Indianapolis,
Ed.Supp.1988).
Code
Crowe,
Ebert,
F.
Locke
Kim F.
Julia
review,
of
this two-tier standard
“Under
Weisell,
Reynolds Boyd
Indianapolis,
&
‘finding of ultimate
the Review Board’s
appellees.
conclusion,
‘findings
fact’ is the
and the
premises
are the
from
of basic facts’
SULLIVAN, Judge.
deduced its con-
the Review Board
which
v.
Board
clusion.” Graham Review
of
appeal from deci-
This is a consolidated
Employment Security Di-
the Indiana
Board of the Indiana
sions of the Review
497,
Dist.,
(1979)
Ind.App.
vision
3d
Division,
Security
denying
Employment
386 N.E.2d
701.
Hehr,
Huff-
L.
Linda S.
claimants Wade
review,
examine
“At the first level of
we
and'Bobby
man, Tommy Gray
L. Partin
S.
premis-
relationship
between
compensation
unemployment
benefits.
if
and ask
es and the conclusion
part
part.
reverse in
affirm
We
(Cites
Board’s deduction is ‘reasonable.’ .
All four claimants were
omitted.)
level
inquiry
The
at this first
Ferraloy, A
Indus-
employer,
Clevite
‘question
of
be termed
review
Company, for acts which occurred
tries
omitted.)
(Cites
law.’
employer’s premises
during a strike on the
review,
inquire
level of
we
At the second
Specifically, the claimants
premises or
nexus between the
into the
attempt-
discharged for
were
facts and the evidence
findings of basic
line
ing to
cars
if
evidence
presented to determine
hearings
Individual
on that date.
findings.”
(quoting
justified those
Id.
Huffman, and a consol-
for Hehr and
held
Building Products Division
Bond
Gold
Gray and Par-
hearing
held for
idated
Board
Gypsum Co. v. Review
National
findings that the claim-
tin. The referee’s
Security
Indiana
just cause and
discharged for
ants were
Dist.,
(1976)
Ind.App.
2d
Division
receiving
disqualified from
bene-
therefore
258, 263).
478, 486, 349 N.E.2d
were,
adopted by the
in each
fits
alléged
employee is
to have
When an
Board.
cause,
employ-
terminated for
been
grounds
proof
to establish
er
the burden
bears
22-4-15-1(d) (Burns Code Ed.
under I.C.
showing
just cause for ter-
prima facie
are
upon
the Board relied
Repl.1986)
done,
If
the bur-
mination.
been
as follows:
employee to introduce
den shifts to the
“(2) knowing
of a reasonable
violation
competent evidence
rebut
rule of an
uniformly enforced
Board
v. Review
case. Sloan
employer;
Division
Employment Security
Indiana
[*]
[*]
[*]
[*]
[*]
[*]
(1983)
3d
Dist.,
Ind.App., 444 N.E.2d
Although
pre-
our standard
review
Board
Employ
Review
the Indiana
evidence,
reweighing
(1984)
cludes
we must ment
Division
3d Dist.Ind.
Thus,
persons
App.,
although
if
reverse
reasonable
would be
The claimants are correct in
incident of misconduct is
the time the
prima
in
order to establish a
facie case
alleged to have occurred. The claimant
for violation of an
rule under I.C.
line. He was still an
was on
22-4-15-1(d)(2),
necessary
it is
for an em
although
employee at that time
on strike.
(1)
ployer to demonstrate that the claimant
The
The incident occurred
violated, (2) reasonable,
(3)
knowingly
by
Patti-
claimant was observed
James
Frank,
uniformly
supra,
enforced rule.
son,
Patterson,
Crockett,
Rusty
Bruce
Thus,
employees alike. It by tolerated an might claimant was not otherwise be meaning Chapter Sec- within claimants while Act.” tion of the making quot- correct the above might be 92-93. Hehr Record at statements, intentionally it is clear that ed damage proper- damaging or any argues he did not strike Hehr hands, ty co-employee of a or of the if he did even vehicles with cars, passing range make contact with within a reasonable would fall argues, Hehr damage resulted. also acceptable under the circumstanc- behavior claimants, other three do the permissible is not es. Unlawful behavior necessary to make certain Board failed in a strike situa- merely it occurs because support its determinations tion. discharge just cause. duty” We realize that “breach regard specifically, to Hehr With amorphous ground is an upon the Board relies the extent one, clearly ascertainable limits without Ferraloy’s alleged rule Hehr’s violation definition, governing rules its and with few property premises, on its against damaging such, subject poten- it is utilization. As following reasons. affirm for the we cannot as a convenient tial abuse existing employer that an The Board found discharge, upon justify ground prohibited carefully exercises its dis- unless the Board however, premises; there is application nec- cretion and limits its where hearing record of Hehr’s no evidence considering employ- essary. In whether if there support finding.1 Even provision as a er utilize this basis *5 rule, no of such a there is were evidence action, the Board should con- justifying its conduct did in fact violate evidence that the is said to sider whether the conduct which that Although the Board found the rule. duty of a have been a breach hands, Hehr, with his struck vehicles the is of such a nature owed to gate, necessary for they entered the was employee the a that reasonable damage the find also that to the Board to ques- that the conduct in understand would no resulted. Not there vehicles was duty the of a owed tion was a violation finding, there was no evidence such but subject to supported one. We and that he would be would have which finding engaging activity therefore cannot affirm in the or discharge for cause that Hehr was behavior.
upon this basis. Hehr a that breached In However, Board also found that the employer, implicitly duty to the duty constituted a breach of Hehr’s actions dam damaging or found that employer. argues, Hehr as do to the owed co-employee on the age the of a claimants, “refusing other
the
duty
premises
a
rea
breached
work,
from
attempting to dissuade others
employer.
reason
sonably owed to the
No
yelling slogans at
entering
plant
the
and
sincerely believe or
employee could
able
employees are
managers
replacement
and
successfully argue that he
entitled to
was
employ
duty
an
contrary to the usual
owed
activity,
in
nor do the claim
engage
such
inci
they
statutorily protected
er. Yet
are
argue
they were entitled to
ants here
picket and
right to strike and
dents of the
ascertaining
engage in
In
such behavior.
in
the
a
cannot breach
“attempt”
constitutes
what behavior
ac
Reply Brief at 11. We
this context.”
damage property,
find the definition
we
emo
knowledge
in strike situations
(Burns
attempt contained in I.C. 35-41-5-1
and an em-
highly
often
volatile
tions are
hearing
against
one
employees’ sepa-
to in Hehr's
was
testified
adduced in other
1. Evidence
intimidating,
threatening
harrassing
other
predicate
hearings may
not serve
rate
employees.
only company policy
finding as to Hehr. The
case,
Ed.Repl.1985)2 instructive. Borrow-
Code
statute,
portions of the
burden of
ing the relevant
person intentionally
cause as
where a
conclude that
in
to include
knowingly engages in conduct that con-
used
this section
defined
or
conduct,
damag-
violations,
step
dangerous
a substantial
toward
stitutes
may properly
ing property,
person
such a
owed
damage
attempted
employer.
be considered
breaching duty
property, thereby
In this
the referee finds that the
very
employer. Obviously, this is a
participating
claimant was
in a strike
must be
fact-sensitive determination which
against
on
She was
by
on a case
case basis.
made
picket
photo-
line
1987. She was
graphed by
holding
James Pattison
Hehr,
applied the Board found
As
object scratching
metal
the sides of cars
striking
that Hehr’s conduct consisted of
picket
line. The claimant
with his hands as
entered
scratching
was observed
the car of Ms.
noted,
already
no find
gate. As
there was
Lindburgh by Mr. Pattison. Ms. Lind-
damage.
as to actual
ing nor evidence
burgh testified that she had scratches to
as to the force
There was also
quarter panel
the left
of her car and had
striking
Hehr used in
the vehicles.3
scratching
heard a
noise when she
may
reasonable to conclude
While
line.4
she
crossed
vehicles,
intentionally struck the
such
Hehr
safety
was more concerned for her
at
implicit
lead to an
conclusion that
does not
stop
get out.
time and didn’t
(using only
hands to
Hehr’s actions
the referee concludes that
vehicles)
likely
to cause dam
strike
has sustained its burden
striking
question
age. The
would have
proof.
is shown on the
claimant
to have been done
a manner which would
witness,
film,
also
observed
damage
permit
inference that
was a
to at least one vehicle
consequence. There
reasonably anticipated
Although claimant was not
described.
finding as to the manner of the strik
is no
time,
working
she was on the
at
is therefore omitted
ing. An essential fact
prop-
employer premises and
the conclusion of the Board
discharge-
erty
employer premises is a
accordingly re
therefore be affirmed. We
also
offense. The claimant’s actions
able
*6
proceedings
for further
verse and remand
disqualifying
as
are inconsistent
are
opinion.
this
not inconsistent with
to
the intent of the Act which is
with
unemployment
to those
provide
benefits
II. LINDA S. HUFFMAN
through
fault of
unemployed
are
no
who
following
made the
The Board
held, therefore, claimant
It is
their own.
findings and conclusions with
the
discharged
just
for
cause within
was
Linda Huffman:
Chapter
1 of the
meaning of
Section
finds the claimant
“The referee
worked
Security Act.” Huffman
Employment
employer
set-up operator.
as a
for this
81-82.
Record at
discharged for
or at-
She was
coming
contact
also denies
into
entering the
Huffman
tempting to
vehicles
crossing
damaging any
during
disagreement.
with and
vehicles
plant
a labor
testimony
finding
summary
a
that
attempt
is not
defines
in
4.A
Indiana Code 35-41-5-1
person attempts
testimony
part
"A
to commit a
a fact.
as follows:
content of the
is
the
Perez
when,
required
acting
culpability
Ind.,
with the
crime
Corp.
426 N.E.2d
United States Steel
crime,
engages
he
for commission
29, aff’d,
is the Board found Huff- employer by employee. an dischargeable man’s actions offense In the referee finds grounds under one or more of the three intentionally claimant observed was paragraph. listed in the second That Huff- striking a the left side vehicle on with a damaged or intentionally attempted man picket club as was line. implicit damage passing is in the carrying The axe claimant a wooden holding fact filmed that she was a metal handle. object scratching the sides of not referee concludes vehicle, passing one passing but several has sustained its burden of vehicles.5 proof. The dan- claimant’s actions were Although cannot affirm the Board’s gerous, employer policy violated since he negative award as to Huffman on the basis time, plant premises was on the at the of a due to the Board’s fail- rule violation and did he constitute ure to find uniform enforcement of and em- owed rule,6 we can affirm on basis that inten- ployees actions are alike. The claimant’s tionally causing co-employee’s to a the Em- disqualifying therefore under employer premises property on is a breach therefore, held, ployment Act. It claimant affirm the We therefore Board’s decision meaning Chapter Sec- within as Huffman.7 Act.” tion of Gray Record at 99-100.
III. S. GRAY TOMMY made Gray having The Board a board admits line, respect Tommy Gray possession conclusions with on the while but using follows: denies it to strike vehicles. Board, however, Gray inten- found that had “The referee finds that the claimant tionally struck as it crossed the period a vehicle worked for this Gray’s April 14, 1987, picket line. The Board found that 1977 until September, employer policy operator eight at the actions thus adjusting rate violated *7 may to 5.Although contend It well that absolute adherence the claimants that a film be a requirement a uniform enforcement of rule clearly that during the incidents shows taken example, proved inappropriate. be is For it misconduct, engage any viewing our did not prove impossible employer would be to permit a to that the film does not conclusion being "uniform" of a rule which is enforcement film, except does the as to Huff- effect. Neither man, may, enforced for first time. Be that as weight may probative to the be add appropriate instance would seem in such to testimony given any concerning to of the require bring to forth that circum- While it have conduct of the claimants. would thereby an "uniform enforce- stance avoid Board to have stated what it been better for the argument. ment” respect shown with to all found the film to have Huffman, did to claimants as it with holding We caution our should required to do so. picket Board was not The Board activity event be read on a to mean line, lawful, every piece required may just to make to be used as if otherwise guise it vio- cause for under the evidence before it. duty lated a owed to picket line, and also breached a claimant, and several oth- the employer. individuals, er surrounded it. the referee concludes that Because there is no as to uniform has sustained its burden of damage, enforcement or actual we cannot proof. Although claimant was not work- affirm the Board’s decision on the basis ing time, at the he was on the Gray violated an rule. How- premises participating in a labor dis- ever, can affirm we on the basis that agreement. Intentionally damaging or Gray’s duty actions a reasonably breached attempting damage cars that are employer by attempting owed the to dam- crossing picket line is a disqualifying age employer’s premises. cars on the held, therefore, action. It is the claimant Gray The Board found that intentionally discharged cause within the struck a vehicle It club. is reason- meaning Chapter Section of the able to conclude that the use of an instru- Employment Security Act.” Partin ment intentionally such as a club in strik- Record at 117-18. ing a vehicle step constitutes a substantial striking Partin denies damaging any damaging property. towards In contrast picket vehicles on the line. The Board car, to the use striking of bare hands in nevertheless found that Partin had struck club would not be wielded with at crossing least one vehicle the line. It damage. much force to cause Both the additionally found that intentionally dam- damage likelihood of and the extent of aging damage or cars cross- damage greater person are much where a disqualifying the line is a action. The passing uses a club to strike a vehicle than Board implicitly therefore found that Par- person where the uses his bare hands. intentionally damaged tin had attempted We therefore affirm the Board’s decision damage property. As stated in our dis- Gray. as to regarding Huffman, cussion apparent it is that the Board found that Partin’s actions IV. BOBBY L. PARTIN disqualifying under one or more of The Board following findings grounds made the paragraph listed in the second respect Bobby and conclusions with findings. Par- tin: Although we cannot affirm the Board’s
“The referee finds that the claimant just cause determination on the basis of a period worked for this for the rule violation because there was no through 14, 1987, June of uniform enforcement or actual a maintenance man at the rate of nine not, (attempting property is ac- ($9.70) seventy an hour. The claimant cording evidence, to the a violation of the damaging, or at- rule), affirm on the tempting damage, breach of basis. Partin was found to line. have struck at least one vehicle with a club. An damage may intent Partin to cause discharge case, has the inferred from the use of the club in such burden of cause for the likely damage. a manner as was to cause cause as For the same reasons discussed with re- used in this section is defined to include spect Gray, it is reasonable to conclude dangerous conduct, violations, that Partin’s actions amounted to a sub- duty breach of owed step stantial toward employer by employee. co-employee employer’s premises. on the In this the referee finds that wit- *8 We therefore affirm the Board’s determi-
nesses carrying identified Mr. Partin as respect nation with to Partin. club on the line. He struck at pick- least one vehicle that jurisdiction crossed the We do not respect retain with et line. gray Chevy This was a silver proceedings may to such further be con- Monte Carlo. When the car crossed the ducted with to Hehr or for prospective judicial fol- review which
low of the Board. the determination SHIELDS, P.J., concurring. Walker, Anderson, appel- Richard B. HOFFMAN, part concurs in and J. lant. part opinion. dissents Pearson, Gen., Atty. Michael Linley E. Worden, Gen., HOFFMAN, Atty. Judge, concurring Deputy and Gene Office of dis- Gen., Atty. Indianapolis, appellee. senting. L. except I “I. WADE concur SHIELDS, Judge. Presiding I HEHR” to which dissent. Slayton appeals judgment A. Marc claimant’s ac- The Board found “[t]he revoking period “one year of extended danger- potential
tions had the to be probation imposed on and order- 11-13-86” certainly implies This ous....” County him incarcerated in the Madison likely to cause dam- Hehr’s actions were (1) year. one Record Detention Center for age. and adequate were at 384. affirmed. decision of Board should be We reverse.
Slayton issues; raises several we address whether the trial court had the one: probation beyond authority to extend his suspended the term of his sentence. All other are mooted our reversal of issues judgment the trial court’s on this issue. SLAYTON, Appellant Marc A. 27, February Slayton On entered (Defendant Below), pleas guilty to possession a controlled substance, felony, possession a class D misdemeanor, marijuana, a class A Indiana, Appellee STATE intoxicated, a A driving while class misde- Below). (Plaintiff pleas con- accepted meanor. The No. 48A02-8808-CR-300. Slayton was sentenced victions entered. A under the class misdemeanor alternative Indiana, Appeals Court felony D and received three for the class Second District. one-year imprison- terms of consecutive 7, March suspended ment. The court the sentences placed Slayton probation for three years. 1986, 13, deter- the court
On November Slayton mined had violated the terms “[Slayton’s] probation of his and ordered 27, February probation extended 1988.” at 62. Record 10, proba- September
On 1987 notice violation, probation asserting viola- tion filed with September tion on Slayton’s evidentiary court. At trial 26, 1988, Slayton hearing, January held the notice viola- first moved dismiss grounds for dis- tion. asserted One court did missal was that the trial Slayton’s probation power, to extend