McKinley v. Review Board of the Indiana Employment Security Division

290 N.E.2d 108, 154 Ind. App. 387, 1972 Ind. App. LEXIS 913
CourtIndiana Court of Appeals
DecidedDecember 11, 1972
DocketNo. 1171A239
StatusPublished
Cited by5 cases

This text of 290 N.E.2d 108 (McKinley v. Review Board of the Indiana Employment Security Division) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McKinley v. Review Board of the Indiana Employment Security Division, 290 N.E.2d 108, 154 Ind. App. 387, 1972 Ind. App. LEXIS 913 (Ind. Ct. App. 1972).

Opinions

White, J.

This is an appeal from a decision of the Reveiw Board affirming a referee’s denial of unemployment compensation. We affirm.

We previously overruled a motion to dismiss (see 283 N.E.2d 395, 31 Ind. Dec. 145) and the appeal is now before us on its merits.

The appellant-employee’s claim for unemployment compensation was denied without hearing by a deputy on the basis of the employer’s response alleging that the employee had been caught gambling on the premises. The employee requested a hearing before a referee at which hearing the employer appeared by a bookkeeper and without counsel. The appellant appeared in person and without counsel. No evidence was elicited to sustain the gambling charge but appellant was nevertheless denied compensation. The basis of the denial was his answers to the following questions asked him by the referee:

“Q. Mr. McKinley, have you had any other work since this employer let you go ?
A. No sir.
Q. Have you looked anywhere else?
A. Yes sir.
Q. About how many places, please?
A. I go down there and they don’t have anything.
Q. The Employment office ?
A. Yes.
Q. Have you contacted any employers yourself directly?
A. Athletic Club where I used to work.
Q. Any place else where you have put in applications for work?
A. No sir.”
[390]*390The referee held, inter alia, that
“[0]ne employer contact in three and one-half months hardly shows an independent effort to secure work on claimant’s own initiative, which could reasonably be calculated to result in claimant’s being employed elsewhere. Claimant is unavailable for work within the meaning of Section 1403 of the Act1 beginning April 8, 1971, and he continues to be as of the date of the Referee’s hearing.”

The employee’s present counsel then prepared and filed an appeal to The Review Board of the Employment Security Division alleging:

“Claimant has contacted many potential employers in an independent effort to secure work which claimant had no [391]*391opportunity to introduce at the hearing before the referee for this point was not in dispute and not known as necessary to be introduced by claimant at the hearing before the referee. Please see attached Form 666 for further details.”

The “attached Form 666” is an application for leave to introduce additional evidence before the Review Board. The Form 666 alleges:

“Claimant not being versed in the law nor the specific statute, Sec. 1403(a) of the Indiana Employment Security Act was unaware that other information beside the point in issue on appeal being discharged for misconduct in connection with work was necessary in order to receive his benefits. Claimant was under pressure at the hearing and was not accompanied by legal counsel or anyone familiar with the proceedings. The new evidence to be presented by oral evidence includes but is not conclusive of claimant’s independent search for work at the following places: “Marott Hotel
“Johnson Chevrolet Co., Inc.
“Princeton Hotel.”

The only witness listed on the application “who will testify to the above facts” is the employee himself.

The Review Board denied the application to produce additional evidence, stating “there was no showing that such evidence was newly discovered or unavailable at the time of the referee hearing.”

The Board found (in addition to the unemployment and the filing of the claim)

“that claimant became unemployed on or about April 13, 1971, and filed an initial claim for benefits on April 19, 1971.
“It further finds that from the date of filing his claim for benefits to the date of the referee hearing, August 9, 1971, claimant, other than registering at the Division’s local employment office, made only one employer contact for work.
“The Review Board concludes that claimant’s one employer contact for work during an approximate 3%-month period fails to convince the Board that he was making an independent, sincere effort to secure work.”

[392]*392The referee’s decision was affirmed.

Appellant contends:

1. That he was denied due process of law in that he was not informed that he had a right to have counsel at the referee hearing or that any issue, other than whether he was fired for gambling on the employer’s premises would be considered at the referee hearing.
2. That it was error for the Review Board to deny leave to introduce further evidence.
3. That he did not receive a fair hearing.
4. That there was insufficient evidence to sustain the finding that he failed to make a sincere effort to obtain employment.

Pursuant to Appellate Rule 8.3(A)(8) appellant’s brief states in its conclusion the “precise relief sought” in the appellate court as follows:

“. . . that the decision of the Review Board denying him unemployment insurance be reversed, or that the cause be remanded to the Review Board for the making of a complete record on the issue of availability, with specific instructions to allow the claimant-appellant to present whatever further evidence he wishes on this point.”

The underlying rationale of that statement of relief sought is that the purpose and function of our review of the Review Board’s decision is the correction of errors of law, if any, committed by the Review Board2 Correction of errors (of fact as well as law), if any, committed [393]*393by the referee is the Board’s function, not ours.* *3 Hence appellant’s first contention (that he was denied due process by the referee) is not an issue here except to the extent that it may be involved in appellant’s contentions of error by the Review Board. The appeal to the Review Board was prepared and presented by competent counsel and our consideration and concern is limited to whether the Board erred in its rulings on what was presented to it.

Whether it was error for the Review Board to deny appellant leave to introduce further evidence depends on the sufficiency of the petition for such leave, i.e., did it show such “good cause” that it was error to deny it?

Section 1806 of the Employment Security Act (Ind. Ann. Stat. § 52-1542e (Burns 1964 Repl.), IC 1971, 22-4-17-6) provides, inter alia, that “[t]he manner in which disputed claims shall be presented and the conduct of hearings and appeals shall be in accordance with regulations prescribed by the board for determining the rights of the parties, whether or not such regulations conform to [394]

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Related

Bowman v. Review Board of Indiana Employment Security Division
303 N.E.2d 840 (Indiana Court of Appeals, 1973)
Bendix Corporation v. Radecki
302 N.E.2d 847 (Indiana Court of Appeals, 1973)
Davis v. Review Board of the Indiana Employment Security Division
300 N.E.2d 690 (Indiana Court of Appeals, 1973)
McKinley v. Review Board of the Indiana Employment Security Division
290 N.E.2d 108 (Indiana Court of Appeals, 1972)
McKinley v. REVIEW BOARD OF INDIANA EMP. SEC. DIV.
290 N.E.2d 108 (Indiana Court of Appeals, 1972)

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Bluebook (online)
290 N.E.2d 108, 154 Ind. App. 387, 1972 Ind. App. LEXIS 913, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mckinley-v-review-board-of-the-indiana-employment-security-division-indctapp-1972.