*1 Employment v. Review Board A. Indiana Jack Security Company Division Nelson Oil April 2-477A148. Filed
[No. 1978.] Shadel, of In- Iverson, Legal Services Organization L. Peter David F. Inc., diana, Indianapolis, appellant. *2 Sendak, Indiana, Attorney Terry Duga, L. G.
Theodore General General, Attorney for Deputy appellee. Company. Nelson Oil He job Wolfe his with the quit P.J. Jack
STATON, review board because the compensation unemployment denied was with the work. connected he leave with cause that did not found (1) аsserts: specifically decision that negative from appeals Wolfe to each make relative failed to that the review board (2) comply to that the failed gave leaving; he reasons statutory regulations. within with time limitations action review remanded to the The cause is reversed and this opinion. inconsistent with I. Before the Board Evidence why included reasons testimony hearing eight at the referee Wolfe’s he quit.
(1) contrary every Saturdаy day, all Wolfe to work expected he that he was to work when was hired understanding every day Saturday other week.
one-half (2) promised. a which he had been get Wolfe did not raise (3) heating repairs make mechanical on required Wolfe was to compensation. on truck with no additional
equipment and his (4) bearing Wolfe stolen wheel insinuated that had Employer
lubrication. (5) any off his car get refused Wolfe time to Employer to allow
fixed. (6) cоndition a truck dangerous refused on Employer get Wolfe injury. condition caused
repaired; (7) get time off for doctor- Employer refused allow x-rays
ordered taken. Wolfe; threatened Employer physically this threat immediate-
ly preceded voluntary Wolfe’s termnation. Wolfe stated to the referee “I jobs that know is hard to I find. think I’m at the I age you that know that just nowadays don’t walk off the job all, fully and find another one. I realize. But after just a man can tаke so much.” decision,
The referee issued his and that decision was adopted by the full review board. The board found that: 18,1976. voluntarily claimant left his on employment October
“[T]he The claimant now relies on duties he performed voluntarily to sup- his port contention that he left his employment for good cause. The referee review finds that these reasons represent a per- [the board] work, sonal dissatisfaction with the and while perhaps substаntial reasons for compelling leaving employment do not con- stitute good cause in connection with the work within the meaning of the Act. In regards to the factual dispute as to the number of work, days week per claimant was required referee [the review concludes from testimony parties both board] Therefore, the arrangement was somewhat flexible. the referee *3 review finds that the dispute regarding claimant’s hours [the board] does nоt constitute good cause in connection with the work within the meaning the Act for the separation. . . .” (1), (2), Wolfe concedes that the review board’s decision disposed of (3) him; and unfavorably to and he argue does not those reasons upon Rather, (6), (7), appeal. he focuses upon reasons and that alleges the review board failed to make findings relevant thereto. He argues that such failure renders contrary the decision to law.
II. Standard of Appellate Review (Burns 22-4-17-12, IC Ind.Ann.Stat. 52-1542k Code § Ed.) provides that
“Any decision of the review board shall be conclusive and binding as to questions all . . . fact. An assignment of errors that law, decision of the review board is contrary to shall be sufficient both present sufficiency of the facts found to sustain the deci- sion, and the sufficiency of the evidence to sustain the fact. . . .” contrary to law is decision the board’s that argument
Wolfe’s review scope appellate examination thorough necessitates decision is that a board’s cognizant We are decisions. of review board However, we are here of fact. as to all binding questions conclusive facts; the board all of the to decide failure of the board with a faced cause was not concerning hours disagreement that the concluded even con- did the board but employment, voluntary termination for review, that we presume dо appellate other reasons? On sider Wolfe’s issue? finding on negative is a on an issue finding no Court, Co. Construction Cole Sheehan Supreme The Indiana in the context very this question discussed N.E.2d held that when case.1 Court compensation of a workmen’s as to some of finding makes no an administrative issues, properly preserv has and when the claimant material law, contrary reviewing the decision by designating error ed the there was some determining whether merely longer may court no affirm Rather, characteriz Supreme Court an award. support evidence invasion level court as an appellate of an stamp such rubber actions ed words, In the Court board. other of the full administrative of the province facts; to find ultimate not undertake court should appellate held that an findings. board for be remanded to the cause should Cole, held that decisions have many Indiana Since board or fact-finding statutory duty judicial of a quasi is the “[I]t commission to essen- each element upon find the facts specifically award, presumption raises no that such failure support tial to the case for deter- remanding and is cause found, as to facts the award. necessary support of the elements mination on each added.) Sober, Inc. v. Howard ...” See Stoner (Emphasis 581, 587, 118 N.E.2d Ind. App., Transport Express, Motor Inc. v. Smith the difference need length specific discussed at court. the appeals an administrative board and in function between *4 recognized unemployment equally in necessity findings of fact is specific for 1. The 370, 373, (1973), App. Corporation Ind. v. Radecki 158 Bendix compensation cases. See (1973), 2; Bowman v. of Indiana Emp. Div. Sec. 847, 849 Review Board note and 302 N.E.2d 840, 570, 563, 845. App. 303 N.E.2d 158 Ind. facts; ours is domain is the the law. We its usurp “The Board’s by if find the facts it authority presumption we fails find authority It frustrates our review when it fails to make expressly.10 review intelligent to make an specific enough its of fact minimally enough’ of facts is finding ‘specific Its possible.... when, when, only weigh we are not purpose required that ourselves, cer or to that the Board reached presume the evidence evidence, to determine weighed results when it order tain ‘contrary is or is not finding the Board’s of an ultimate fact that beyond this minimal finding go to law.’ . .. Board’s should [T]he should state all resolving disputes the faсtual requirement basic, underlying the relevant or facts. “10.... negative But when either an affirmative or award comes evidence, yet to a court based on sufficient evidence reviewing [ex- which would sustain a of one or more facts incon- finding basic ists] award, with the sistent the court cannot affirm in the absence of fully an express specific finding of basic facts consistent with and sustaining by assuming award. For the court to affirm that the actually Board so found is for the court finding....” to make the (1972), Transport Motor v. Express, Inc. Smith App., N.E.2d 737, 745-7472 Motor Transport Express decision also decries the evolution of ad- sufficiency ministrative which as of evidence appeals designate issues the sustaining Id. sufficiency award rather than the of the facts found. at 749.
Since other Indiana cases have emphasize continued to the need fact. See citations in Whispering Pines Home for specific findings
Sr. v. Citizens Nicalek 157 Ind. 300 N.E.2d App. 669; and, Machinery Delaware Tool Company & Yates 857; 158 Ind. App. DeMichaeli & Associates v. Sanders Perhaps N.E.2d 796. it is still how to make the case that review boards do not know specific findings. But, we believe that it is time the A fin administrative boards learned. ding of fact “must contain all specific facts relevant to the contested or may issue issues so that the court determine whether the Board has Supreme 2. This case was vacated the Indiana Court at 262 Ind. N.E.2d But, specifically approved Supreme Court the standards enunciated the Court law, “correctly Appeals decision stated the that apply held but has failed to added.) (Emphasis . .” law to the facts.. *5 Pines conformity Whispering in with the law.” resolved those issues 324, (1975), N.E.2d App. Citizens v. Nicalek Home Senior which are not findings tolerant of Reviewing courts have been too 326. County Henry Commissioners beauty. note Board things of See of of 167 Ind. Dudley App. v. is to finding a of fact requiring of the act purpose “The оbvious the court review as to factual parties both the and inform Therefore, reasonably it was made. basis on which the award and specifically of fact should be made findings follows that such determine, intelligently to this court to not so as enable generally, evidence, pro whether or there was resorting without legally base an award.” foundation which Stoner per upon factual 581, 591-592, 118 HowardSober, N.E.2d Inc. v. 504, 509. by negative, findings It when an award is fact follows that recovery. every v. Howard possibility board should exclude Stoner Sober, Inc., pursuant of fact issued review supra. (8). (6), (7), Wolfe’s reasons specifically Wolfe’s claim fail to exclude Therefore, law, statutory case the cause should according Indiana Security Division Review Indiana Employment be remanded to the by issues specific Board for addressed each raised Wolfe. States necessary is for another reason. The United
This remаnd that minimal Kelly 397 U.S. held Supreme Goldberg Court a of the reasons an administrative process due statement requires upon an of the evidence decisionmaker’s determination and indication clearly prescribed procedure which the decisionmaker relied. Indiana’s But, carry always burden it were would Constitutional if followed. which that where a seeks benefits Goldberg points Court out claimant must least agency out at agency, are meted an administrative why inform the claimant he is denied those benefits. We believe being where, here, sets out this is as a statute particularly applicable cause, standard, voluntary employment termination of with a under that standard. asserted that he for benefits qualified has sort that it should not have to out complains The review board by a in order to ascer- every comment made claimant record isolated tain whether the comment constitutes upon an issue which a is specific finding necessary. We agree would to the extent that those isolated comments do not constitute a material part board, of the issue before the but where the comment constitutes a material segment of a valid issue for recovery, we would disagree with the board’s position. The raison d’etre of the review board’s func tion is to scrutinize the evidence presented, since a is usually claimant not represented by counsel during hearing. The referee or full board is more familiar with the procedure and should aid the claimant who represented is not attorney an in framing the issues.
Moreover, the transcript reveals that Wolfe himself worried about how to his case. As he stated to the present began testifying, Wolfe referee that given deputy circumstances the case as to “[t]he is not I . . “I’m give deputy. what .” The referee replied, considering any anyway.” of these statements his con- repeated cern, “You’re not into The taking those consideration whatsoever?” assured, by referee “No.” The clear inference to have been taken Wolfe was that the referee would consider that he testified to at everything hearing. acknowledge
We
that we are
the referee or review
requiring
board
an active role in the
play
proceedings.
claimant and the
should assist the
officers as much as
hearing
possible,
but
board,
the review
of fact are required
so the review board must ob
And,
necessary
tain the
and
facts.
while we
specific
agree
would
it would
practical3
be
for the
to tender
parties
proposed
findings,
the statutes do not
such a
place
legal
parties.
burden on the
expect
It would be unfair to
the claimant
employer,
neither whom
counsel,
generally
are
represented
findings.
formal
prepare
benefits, yet
Wolfe was denied
the board failed to make
find
specific
of fact on each of the
ings
gave
reasons he
his
terminating
employment.
If
one of Wolfe’s
reasons constituted
cause
Transport
Express,
App.,
3. See
Motor
Inc. v.
III. Burden Upon Remand Wolfe cites as an additional error that the Employment Security Divi- sion ignored its own rules when it refused award him benefits upon the employer’s failure to return its information form days. within ten argument
Wolfe’s relates to certain internal In- regulations of the Security diana Employment Board. Regulation provides in perti- part: nent shall,
“Every employer uрon furnish request, employees his former employees with information necessary for them to ob- their full rights tain and benefits under the Employment Securi- ty Act. To be considered a valid document in determining benefits rights individual,
of an an informational or report protest, Form including directed an employer to the Division regarding an employee or former employee, shall include the Security correct Social ac- count number of the individual. TOTAL UNEMPLOYMENT-Form ‘Eligibility Informа- submitted,
tion Report,’ shall be
to the claim-holding local office
within ten
calendar days
mailing
a notice that a
from
*7
employee
former
has filed an initial or additional claim for
unemployment compensation and he was separated from his
employment under
of the following conditions:...
Left work
work;
voluntarily without good cause in connection with his
. . .
‘Eligibility
501,
the
Report, ’Form
is not received
If
Information
by the Division it will be deemed that the individual
involved was
separated because no work was available and
leaving
work was
added.)
good cause in connection with the work.” (Emphasis
for
Regulation
contends that
802 in effect shifts the
proof
burden of
from the claimant to the
if Form 501
employer
is not submitted within
question
ultimately
cause
a
N.E.2d 274. What constitutes
is
of fact and is to be
Emp.
v. Review Board
light
Indiana
Div.
of all the facts.
Sec.
determined
(1959),
Nordhoff
of
378,
App.
295 i.e., result, days. rendering ten He reasons that such a persuasively benefits, to revoca eligibility subject with the eligible a claimant Otherwise, tion, indefinitely in only dally is could just. employer an form, thereby a clai returning depriving the information procedurally 1971, 22-4-12-1, from Ind.Ann.Stat. mant a determination of benefits. IC (Burns Ed.) 52-1536 when due. paid Code that benefits be requires § 23, 1976.5 The 2 Division sent the Form on November employer SUA 10, 1976, employer did form complete not the until December 14, 1976. the Division did not receive until December it 2, the tardiness the of Form the Divi Despite filing of SUA 6,1977, January sion held Wolfe’s found open, claim and on ineligible him benefits. Such failure to follow its own regulation v. Review contrary Davidson renders Division’s decision to law. (1974), 221, Emp. Board Indiana Sec. Div. Ind. 160 311 N.E.2d App. of 472; (1971), Burnett v. Review Board Indiana Sec. Div. Emp. 149 Ind. of 486, 860; Rubber Rev. Sperry Emp. v. Bd. Ind. Sec. 273 N.E.2d App. Div. 139 Ind. N.E.2d This is App. 530. certain principle ly where the Division pertinent neglects comply with its own rules necessary relative to the Anderson Rev. timely filing documents. 178; Bd. Emp. Ind. Sec. Div. 142 App. Co., Transp. Steel Inc. v. Board Review N.E.2d Regulation 174. According eligi Wolfe should have been days ble for benefits ten after the Division information from requested employer.6 Emergency by provisions special of the was Because Wolfe’s claim covered (SUA), the review Law 93-567 Unemployment Assistance Act Public Jobs disagree. Regulation they 802.We argues the time limits were not bound only temporary program workers not ordinari- though of assistance for a Evеn SUA laws, provid- compensation existing unemployment act ly eligible for benefits under 802) (which Regulation regarding would include provisions of claims all state law ed that 93-567, regulations also 207. Federal apply Law § claims under SUA. Public should filing, reporting, and information apply to provide shall claim explicitly that state law (2). 619.10(a)(1) employers. It requires from Regulation 802 information 20 CFR § However, ten-day filing exclude period. it does not a specifically Form 501 and mentions regulation, we 2 forms from the If we were exclude SUA forms. other information form number. regulation for technical sacrificing be the intent and substance would imposed stringent requirement than that has a more actually time 6. Form SUA 2 is to be return- that SUA on form is a notice to 501. Printed for Form day encompassed Regulation ten day period is DAYS.” The 7 “WITHIN 7 ed regulation, should supercede so benefits not on the form should period; the instructions day passed. period the ten hаs accrue until *8 296
We reverse the board’s Wolfe have decision. should been deemed eligible upon employer’s timely benefits the failure file the re- course, may informational Form SUA 2. The quired employer, ap- however, peal; the employer showing must bear the burden of that not work with good did leave cause. Wolfe is now entitled to days to ten following mailing benefits retroactive Form SUA 2 If employer notice does the review employеr. appeal, is instructed to specific findings every make fact on issue in order may intelligently that we review the board’s decision upon appeal. Reversed and remanded.
Buchanan, C.J., Concurs; (By designation), Hoffman, J., in Result Opinion. Concurs with
CONCURRING HOFFMAN, in only J. I concur the result that this cause should be reversed. Security
Employment Division Regulation pertinent 802 in provides part: Return,’ ‘Eligibility
“Form Information shall be submitted claim-holding local within ten calendar days office from mailing а notice that former employee has failed an initial ; . . . claim . . . ’ the ‘Eligibility Report, Form is not receiv If Information ed Division it will be deemed that the individual involved separated was because no work was available his leaving work added). good cause in connection with the work.” (Emphasis The former employer did return Form 501 within the time limit days. of 10
The Review Board does not have discretion to its disregard own regulations. Davidson v. Review Board Emp. Indiana Sec. Div. 160 221, N.E.2d 472. employer
When former failed to file Form 501 within the time limit provided Regulation as the deputy must find clai- work leaving and his work was available no because separated mant was former accordingly. benefits cause and award was for *9 regulations. to the pursuant of right appeal the has Appeals until the entitled to benefits the claimant was Therefore adverse decision. made an Referee are not regulations applicablе the contention that Review Board’s
The Unemploy- Jobs and Emergency of the provisions of the special because (SUA), is discussed Public Law 93-567 Act of ment Assistance opinion. of Staton’s Judge in footnote #5 correctly decided reason. for the above I reverse the award Therefore would to find suffi- the Board failed facts holds that opinion Staton’s Judge were sufficient. by the Board The facts found its decision.1 uphold cient left his employment that thе claimant by both parties It is admitted Board is: the issue before the voluntarily. Thus (1) his employment? the leave Why employee did Act? meaning cause within the good such reason Is facts: following stated the in its decision The Review Board of record indicates The evidence “STATEMENT OF FACTS: truck driver as a fuel oil employer for this that claimant worked 18,1976; 24, 1976, his that he left until October from March employer. notice to the voluntarily without advance employment his record indicates that claimant evidence of conflicting left agree- that the had breached he employment because felt scope duties outside the perform him to by requiring ment hire of compensation. extra without employment his not require testified that he did employer representative “The claimant agreed; hours than and that to work more the claimant when he job description his scope duties outside the performed to do such work. volunteered now, Board The Review AND “FINDINGS CONCLUSIONS: reference, by the made and conclusions adopts heavily upon Transport Express, Motor Inc. v. Smith opinion relies 1. That Appeals granted opinion in which transfer was an of the Indiana Court Court, opinions preceden N.E.2d 424. Such have no Supreme the Indiana reports appear in the official of Indiana cases. and do not tial value in January referee No. decision mailed Case 77-SUA-43 аdded) (emphasis 1977.” The referee’s state: voluntarily
“The claimant now relies on he performed duties his contention he left support employment good his cause. The referee finds that these represent reasons a personal work, dissatisfaction with the and while substantial and perhaps compelling leaving employment reasons his do not constitute cause in with connection the work within meaning In regards Act. days factual as to the number dispute per work, week claimant required referee concludes from testimony of both parties arrangement that the was somewhat flexible.”
Thus Board found that the employment claimant left his because he performed voluntarily duties and was with dissatisfied employment. *10 find; was
This all that the Board required reason claimant left his employment.
The Board was not required findings why state in its the claimant did leave employment.
It then answered the next issue correctly found that claimant’s reason was not good cause under the Act.
Here Board made an finding affirmative when it determined the reason claimant left his employment. Such excluded possibility recovery. opinion Staton’s
Judge would require agencies administrative do more than is trial courts when are required findings Only required. one apply standard should whether it be trial or an a court administrative agency. v.
Judge opinion Staton’s raises the Goldberg Kelly case 1011, U.S. 90 S.Ct. 25 L.Ed.2d states “that where clai- mant seeks which benefits are meted out an agency, administrative must least agency why being at inform the claimant he is denied those benefits.” why
The Board’s clearly inform the he not entitl- claimant is reading A of the ed to benefits. Board’s decision leaves no doubt re- Goldberg Kelly, supra were denied. anyone’s why mind benefits no more. quires requirement sufficient and meet the
The Board’s
are
and case law.
statutes
NOTE— Stanley Margaret Hayes, B. and Estate Will Executrix Hayes, Jr., Bank W. v. The National of Richmond Deceased Second 23,May Rehearing April 1978. 1-777A160.Filed denied
[No. Transfer denied October 1978.]