Youngstown Sheet & Tube Co. v. Review Board of Indiana Employment Security Division

Kelley, J.

— This review of the decision of the Review Board of the Indiana Employment Security Division (hereinafter referred to as Review Board or Board) is a consolidation of three separate perfected appeals for review filed herein by appellant from three separate decisions by said Board with relation to the eligibility for unemployment benefits of three claimants.

It appears that the three claimants, namely, John T. Bonic, Robert L. Grant and Jessie W. Williams, were employees of appellant. The latter and the United Steelworkers of America, a union in which said employees held membership, were parties to a collective bargaining agreement. Upon the stated ground of necessary reduction “in force.”, said Bonic, an apprentice welder, was laid off by appellant on November 22, 1960, said Grant, as boilermaker’s helper, was laid off by appellant on November 26, 1960 and said Williams, an apprentice boilermaker, was laid off by appellant on November 23,1960.

Each of said employees made application for and were determined to be entitled to unemployment compensation. No petition for the review of such determination was ever made and said claimants received unemployment benefits continuously from the time they were laid off until about January 21,1961.

On January 4th and 5th, 1961, some 45 men, former active employees of appellant but who, on said dates, were occupying a layoff status, “went from one to another of the three entrances to the appellant’s plant .picketing and demonstrating against the layoff they had suffered.” The said Bonic, Grant and Williams paricipated in said picketing and demonstration and, during the time thereof, were receiving unemployment benefits. The said picketing and demonstrating by said men was not authorized or countenanced by said union.

Said claimant appellees on said January 4th and 5th, 1961, respectively, engaged in various personal, and in some cases offensive, acts around and in the vicinity of the gates and entrances and preventing employees from coming to work, taking an employee by the arm, yelling uncomplimentary epithets and standing in an eighteen-man shoulder-to-shoulder picket line across the steps of appellant’s dock house.

On January 16, 1961, said Grant and Williams were recalled to work by appellant. On January 23, 1961 said Bonic was “discharged” by appellant for “his participation in the strike.” On January 24, 1961 said Grant was “discharged” by appellant “for his participation in the work stoppage and strike of January 4 and 5, 1961.” On January 23, 1961 said Williams was given “a disciplinary suspension for five days” and following a “company union” hearing on January 27, 1961, he was “discharged” by appellant “for his participation in the work stoppage and strike of January 4 and 5,1961,” effective as of January 24,1961.

On or about February 10, 1961 the appellant filed “Information Reports” with the local office of the Board, stating in each of the said reports that the claimant was “Discharged for Cause — Activities with work stoppage.” Appellant was advised in each case by the local office deputy that in his opinion the claimants were not discharged by appellant for “misconduct in connection with his work.” An appeal by appellant to the referee resulted in a decision that the respective claimants were not disqualified and were entitled to benefit rights. On petition for review, the Board affirmed, with minor modifications, the decision of the referee.

Although the agreement provision is not shown in the appellant’s original brief, there are indications and implications in the briefs that by the terms of the said collective bargaining agreement the claimant appellees retained “seniority rights” and rights of recall at such time as the appellant found itself in position so to do.

In general pertinent effect the Board found, by adoption of the referee’s decision, that:

“While it is true that the claimant continued to enjoy certain rights and privileges under the labor-management contract at the time of his lay-off, nevertheless, at the time of the commission of the act of misconduct, the claimant was rendering no personal services to the employer, nor was the employer paying any remuneration to the claimant. The employer had no right of control over the claimant, and the claimant had no claim against the employer. The union contract merely preserved claimant’s seniority rights and rights of recall until such time as the employer was in a position to re-employ the claimant. So far as the Indiana Employment Security Act is concerned, the employer-employe (sic) relationship, and the contract of employment, came to an end at the time the claimant was indefinitely laid off by the employer. No further duty was owed each to the other. Further, the claimant, under the provisions of the Employment Security Act, made claim for compensation and the Division made a written determination of claimant’s right to draw benefits under the Act. This act of the Division, which was not appealed, determined finally the reason for separation by claimant from his employment and established finally the claimant’s right to benefits. Until such time as the employer-employe (sic) relationship again came into existence by re-employment, the claimant’s status under the Act remained the same and could not be altered . . . that it was impossible for the claimant to have committed any act of misconduct while in a laid off status and while he was performing no services for his former employer, and while the former employer was paying no remuneration to the claimant, which would entitle the employer to legally discharge the claimant and terminate benefit rights that had already been established by the Division.”

The Indiana Employment Security Act by §1501 thereof, being §52-1539, Burns’ 1951 Replacement, and §52-1539, 1962 Cum. Pk. Supp., provides, in part and inter alia, that:

“An individual shall be ineligible for waiting period or benefit rights: For the week in which he . . . has been discharged for misconduct in connection with his work,. ...”

Appellant contends that the decision of the Board is contrary to law in that “The three restrictive standards added to §1501 by the Review Board herein, i.e., that an employee be

subject to the actual or contractual control of his employer, rendering service and receiving pay,

in order for his misconduct to be in connection with his work are plainly unauthorized by the Act.” Appellant further says: “it would seem apparent that an individual who joins with others on his employer’s premises and attempts by means of picketing and force to cause his premature return to his job with said employer is plainly involved in misconduct which is in connection with his work.”

Appellees counter by asserting that “When each of the claimant appellees applied for unemployment compensation they had each been laid off work by their former employer, the appellant herein. At the time each of said claimant appellees applied at the respective local offices . . . for unemployment benefits, each . . . was required to and did establish under the . . . Security Act that he was unemployed through no fault of his own and was physically and mentally able to work and also available for work. . . . Further, each of said claimant appellees was required to and did . . . register for work at the . . . offices of the . . . Security Division. . . . Each of the claimant appellees was properly determined to be entitled to unemployment benefits and started drawing benefits . . . commencing November 12, 1960, without objection from appellant . . . until February 8, 1961. ... as found and determined each of said claimant appellees was in the labor market seeking employment.......each of said claimant appellees was entitled to employment security benefits until . . . his employment security benefits were exhausted or until each . . . was called back to work with the appellant ... or with other employer that might provide them employment.”

The above mentioned collective bargaining agreement between appellant and the United Steelworkers, in which appellees held membership, provides, as appears from appellant’s brief, that:

“There shall be no strikes, work stoppages, or interruption or impeding of work . ... No employee shall participate in any such activities.” (Emphasis supplied).

On January 4th and 5th, 1961, the appellee claimants were in lay off status pursuant to appellant’s action in laying them off in November, 1960, and on said dates were not employees of appellant within the self-evident meaning of said provision of said agreement. On said dates said appellees could not have participated as employees of appellant in any of the activities mentioned in said provision of the contract because they were not then occupying an employee relationship with appellant. To hold to the contrary would, in effect result in a concomitant holding that the award of unemployment benefits to appellees by the local office may be subject to enquiry and the acceptance of such benefits by appellees may be in violation of §52-1559, Burns’ 1962 Cum. Suppl.

There appears nothing in said provision of said collective bargaining agreement or in the use of the word “employee” therein which requires, or which indicates, that said quoted word be attributed a special or technical definition or be ascribed a meaning inconsonant with the common, well-established meaning thereof. Although stated with reference to a different subject matter, we deem the following quotation from Koch, Executor, et al. v. Wix et al. (1940), 108 Ind. App. 20, on page 26, 25 N. E. 2d 277, to be apropos to adequately express such well-established meaning:

“The word here used (employes) has a definite, well-established meaning, commonly known, and is applicable only to one who is in the present service of another for pay at a particular time. In its accepted usage, it does not embrace one who has at some time been but no longer is, in the employment of another.” (Emphasis supplied).

As noted above, the appellant, in its “Information Reports” to the local office, stated that the appellee claimants were “Discharged for Cause — Activities with work stoppage.” That was the “misconduct in connection with his work” (§52-1539, Burns’ 1962 Cum. Suppl.) charged by appellant against each of said appellee claimants, and such charge, it is apparent, followed the prohibited activity by an “employee” provided for in the above quoted provision of the collective bargaining agreement. In final analysis, the misconduct sought to be charged against appellee claimants by appellant was that they breached said quoted provision of the bargaining agreement in that they engaged in a strike and work stoppage which they had agreed not to do.

Appellant directs argument to this point on the ground that said appellees’ participation “in an illegal strike” would seem to be a “wanton or unlawful disregard for the employer’s interests.” However, the basic validity and conclusion of appellant’s tendered proposal is without foundation unless it be predicated on the premise that said appellees were “employees” of appellant at the time of the alleged breach of the contract, since said provision of the agreement is, by its terms, a prohibition of certain designated activities by an “employee.” We have already determined that the appellee claimants did not stand in an employee relationship with appellant at the time of the claimed misconduct by them. Thus it seems clearly to follow that their acknowledged activities, although perhaps unwise and in some respects an invitation to legal entanglements, did not constitute any breach by them of the relied upon agreement. Consequently, in our opinion, the appellee claimants were not and could not be guilty of “misconduct” in connection with his. (their) work” in the respect asserted by appellant.

It is the further contention of appellant that said appellees “were employees with seniority rights” under the bargaining agreement and that they “retained employee status and were entitled as a matter of law under this agreement to return to work with appellant at a future date.” We have previously adverted to the absence in appellant’s brief of the provisions or parts of said bargaining agreement relied upon by appellant in this contention. We are thus deprived of measuring the actual wording of any such provisions with the contention now projected. Said statement of appellant is a self-serving conclusion unsupported by appropriate citation to and incorporation of the pertinent sustaining evidence. For example, in the absence of a proper showing by appellant, how may we determine or satisfy ourselves as to the correctness of the latter’s declaration that the appellee claimants “were entitled as a matter of law ... to return to work with appellant at a future date.” The Board found, as shown by the above quoted finding thereof, that

“The union contract merely preserved claimants seniority rights and rights of recall until such time as the employer was in a position to re-employ the claimant. So far as the Indiana Employment Security Act is concerned, the employer-employee (sic) relationship, and the contract of employment, came to an end at the time the claimant was indefinitely laid off by the employer.”

Under the circumstances we most recently made reference to, we must hold that appellant has not demonstrated or established that the next above quoted finding of the Board is erroneous or that there is no evidence to support the same.

It has long been the general rule in this state that the decision of the Board on questions of fact, where there is evidence to support the same, is con-elusive and binding upon the reviewing court and that the decision of the Board will not be disturbed “unless reasonable men would be bound to reach a different conclusion on the evidence” in the record. VanBenthuysen v. Review Board of the Indiana Employment Security Division et al. (1958), 128 Ind. App. 274, 277, 147 N. E. 2d 910; Massengale v. Review Board of Indiana Employment Security Division et al. (1961), 132 Ind. App. 587, 593, 178 N. E. 2d 557. In our opinion, appellant has failed to establish that the findings of the Board do not rest upon a substantial factual foundation or that the decision of the Board is erroneous as a matter of law. Under the facts made apparent by the record evidence in this particular case, we would be unwarranted, we think, in determining that reasonable men would be bound to reach a conclusion different from that arrived at by the Board.

The decision of the Board herein appealed from is affirmed.

Mote, C. J., Carson, P. J., and Clements, Cooper, Pfaff and Ryan, JJ., concur; Hunter, J., dissents with opinion to follow.