Vassil Marinov v. Review Board of the Department of Workforce Development (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Oct 26 2017, 10:19 am

regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.

APPELLANT PRO SE ATTORNEYS FOR APPELLEE Vassil Marinov Curtis T. Hill, Jr. West Lafayette, Indiana Attorney General of Indiana

Aaron T. Craft Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Vassil Marinov, October 26, 2017 Appellant, Court of Appeals Case No. No. 93A02-1701-EX-125 v. Appeal from the Review Board of the Department of Workforce Review Board of the Department Development of Workforce Development, Steven F. Bier, Chairperson George H. Baker, Member Appellee. Larry A. Dailey, Member

Case Nos. 16-R-1589 16-R-1590

Brown, Judge. Court of Appeals of Indiana | Memorandum Decision No. 93A02-1701-EX-125 | October 26, 2017 Page 1 of 9 [1] Vassil Marinov (“Employee”), pro se, appeals from decisions of the Review

Board of the Indiana Department of Workforce Development (the “Board”)

denying his claims for unemployment benefits for two weeks. We affirm.

Facts and Procedural History [2] Employee began to work for FCA UA LLC (“Employer”) in July 2013 and

works full time at a plant of Employer in Kokomo, Indiana. A 2011 collective

bargaining agreement between Employer and the United Automobile Workers

provided that a plant shutdown for vacation purposes for up to two weeks may

be scheduled and that employees will not be eligible for unemployment benefits

during the weeks so designated as a vacation shutdown. A 2015 collective

bargaining agreement similarly permitted Employer to designate up to two

weeks as vacation.1 In 2016, Employer designated a two-week shutdown

period for certain plants for the weeks ending July 30 and August 6, 2016 (the

“Shutdown Period”). Employee was given a return-to-work date of August 9,

2016, did not work during the Shutdown Period, and returned to work during

the week following the two-week Shutdown Period in his same position and

rate of pay. [3] Employee filed for unemployment benefits. On August 11, 2016, a claims

deputy with the Indiana Department of Workforce Development (“DWD”)

1 While the 2015 agreement was not presented at the hearing before the ALJ, the ALJ admitted an email exchange and testimony indicating that, under the new agreement, Employer contractually could designate up to two weeks as vacation.

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entered a determination under case 104204 (“Case 204”) finding that, for weeks

ending July 30 and August 6, 2016, Employee was on a vacation mandated by

Employer, was not unemployed for those weeks, and is not entitled to benefits.

On August 12, 2016, the claims deputy entered a determination under case

104199 (“Case 199”) finding that, during the week ending July 30, 2016,

Employee earned vacation pay that was more than the weekly benefit amount

and that benefits for that week are not payable. Employee appealed the denial

of his benefits. An administrative law judge (the “ALJ”) held a consolidated

hearing in Cases 199 and 204 at which Employee appeared pro se and was

provided an interpreter, and the DWD appeared by its representative. The ALJ

admitted into evidence certain documents and the testimony of Employee and

DWD’s representative. Employee indicated that Employer planned to make

changes on the production line during the Shutdown Period. The DWD’s

representative indicated she did not receive any information that the union

challenged the vacation weeks. [4] On October 21, 2016, the ALJ issued decisions in Cases 199 and 204. The

ALJ’s decision in Case 199 provides in part that an individual is not eligible to

receive unemployment benefits for any week in which the individual’s

deductible income is greater than his weekly benefit amount, that deductible

income includes vacation pay, that Employee was eligible for forty hours of

vacation pay, and that the vacation is allocated to the week ending July 30,

2016. The decision further provides that Employee is not required to take the

pay for the vacation period and can receive his payment at any time during the

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year but the payment is allocated to a specific week and would be deductible for

that week, that Employee’s vacation pay exceeded the maximum weekly

benefit amount, and that the Employee would have deductible income in excess

of his weekly benefit amount for the week ending July 30, 2016, and is not

entitled to benefits for that week. The ALJ’s decision in Case 204 finds that

Employee was not unemployed during the two weeks of the Shutdown Period

and thus was not eligible for unemployment benefits for those two weeks. The

ALJ specifically found that the UAW negotiated a contract provision which

allows Employer to designate two weeks per year as a vacation period,

Employer designated the weeks ending July 30 and August 6, 2016 as the

vacation period, and no challenges to Employer’s authority to designate the

vacation period was made by the union on behalf of employees. The ALJ also

found that Employee did not work during the Shutdown Period, Employee had

a return to work date of August 9, 2016, Employee returned to work on that

day without further time off, Ind. Code § 22-4-3-5 applies in this case, and

Employee is not eligible for unemployment benefits during the Shutdown

Period. Employee appealed the decisions of the ALJ to the Board, and the

Board issued decisions in Cases 199 and 204 which affirmed and adopted the

ALJ’s decisions.

Discussion [5] The issue is whether the Board erred in determining that Employee is not

eligible for unemployment benefits for the two-week Shutdown Period. Pro se

litigants are held to the same standard as trained counsel and are required to

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follow procedural rules. Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct. App.

2004), trans. denied. Employee asserts that the DWD did not present any legal

documents proving that he was on vacation and that his paystubs show that he

did not receive any vacation pay. The Board maintains that the determination

that Employee was not unemployed during the Shutdown Period was

supported by the evidence, reasonable, and in accordance with law.

Specifically, it argues that Employee was not unemployed under Ind. Code 22-

4-3-5 because the 2015 agreement allowed Employer to designate up to two

weeks as a vacation period, Employer shut down the plant during the

Shutdown Period, and Employee had reasonable assurance that he would be

employed with Employer after the Shutdown Period ended and did in fact

return to work at that point. [6] The standard of review on appeal of a decision of the Board is threefold: (1)

findings of basic fact are reviewed for substantial evidence; (2) findings of mixed

questions of law and fact—ultimate facts—are reviewed for reasonableness; and

(3) legal propositions are reviewed for correctness. Recker v. Review Bd. of Ind.

Dep’t of Workforce Dev., 958 N.E.2d 1136, 1139 (Ind. 2011). Ultimate facts are

facts that involve an inference or deduction based on the findings of basic fact.

Id. Where such facts are within the special competence of the Board, the Court

will give greater deference to the Board’s conclusions, broadening the scope of

what can be considered reasonable. Id. [7] Ind. Code § 22-4-14-1 provides in part that, subject to certain exceptions, an

unemployed individual shall be eligible to receive benefits with respect to any

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week if the individual has made a claim for benefits in accordance with Ind.

Code §§ 22-4-17. Ind. Code § 22-4-3-1 provides that an individual shall be

deemed “totally unemployed” in any week with respect to which no

remuneration was payable to him for personal services. Ind. Code § 22-4-3-2

provides in part that an individual is “partially unemployed” when, because of

lack of available work, he is working less than his normal customary full-time

hours for his regular employer and his remuneration is less than his weekly

benefit amount in any calendar week. Ind. Code § 22-4-3-3 provides that an

individual is not totally unemployed, part-totally unemployed, or partially

unemployed for any week in which the individual: is regularly and customarily

employed on an on call or as needed basis; and has remuneration for personal

services payable to the individual, or work available from the individual’s on-

call or as needed employer. Ind. Code § 22-4-3-4 provides that an individual is

not totally unemployed, part-totally unemployed, or partially unemployed for

any week in which the department finds that the individual: is on a vacation

week; and is receiving, or has received, remuneration from the employer for

that week. [8] Ind. Code § 22-4-3-5 provides:

(a) Subject to subsection (b), an individual is not totally unemployed, part-totally unemployed, or partially unemployed for any week in which the department finds the individual:

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(1) is on a vacation week; and

(2) has not received remuneration from the employer for that week, because of:

(A) a written contract between the employer and the employees; or

(B) the employer’s regular vacation policy and practice.

(b) Subsection (a) applies only if the department finds that the individual has a reasonable assurance that the individual will have employment available with the employer after the vacation period ends.

[9] The record reveals that Employer, pursuant to a collective bargaining

agreement with employees, was permitted to designate up to two weeks as a

vacation period during which it could shut down its plants and that Employer,

in 2016, designated the Shutdown Period during which certain plants of

Employer would shut down for two weeks. Consistent with Employer’s

designation and the agreement, Employer shut down the plant and Employee

did not work or receive remuneration attributable to the Shutdown Period.

Further, evidence was presented supporting the conclusion of the ALJ and

Board that Employee had a reasonable assurance that he would have

employment available with Employer after the Shutdown Period ended and in

fact that Employee returned to work during the week following the Shutdown

Period in his same position and rate of pay. The ALJ and Board found that

there was a vacation provision in the contract effective for 2016, that Employer

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designated the Shutdown Period and there was no evidence the union

challenged the designation, and that Ind. Code § 22-4-3-5 applies in this case. [10] Based upon the record, we cannot conclude that the Board erred in determining

that Employee was not unemployed for purposes of determining his eligibility

for unemployment benefits during the weeks ending July 30 and August 6,

2016, and thus that Employee is not entitled to benefits attributable to those

weeks. See Broxton v. Rev. Bd. of Ind. Dep’t of Workforce Dev., 999 N.E.2d 1069,

1075-1078 (Ind. Ct. App. 2014) (holding that the Board did not err in

determining that the claimant, a cook who worked for a company providing

food service at a college and who worked full time during the school year and

was on call during the summer months, was ineligible for unemployment

benefits due to Ind. Code § 22-4-3-5 and that the Board’s determination that the

claimant was on an unpaid vacation week because of the company’s regular

vacation policy and practice and had reasonable assurance of employment after

the vacation period ended was reasonable), trans. denied; D.B. v. Rev. Bd. of Ind.

Dep’t of Workforce Dev., 2 N.E.3d 705, 709 (Ind. Ct. App. 2013) (affirming the

Board’s determination, applying Ind. Code § 22-4-3-5, that the claimants, who

were employees or owners of a transit company which operated school buses

during the school year and not during the summer, were not entitled to

employment benefits where the summer break period was a vacation period

within the regular vacation policy and practice of the company and the

company gave its employees reasonable assurance of employment at the

conclusion of the vacation period), trans. denied; see also Ind. State Univ. v. LaFief,

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888 N.E.2d 184, 187 (Ind. 2008) (indicating, prior to the enactment of Ind.

Code 22-4-3-5, that the general rule is that employees “who contractually agree

to mandatory vacation periods or temporary shut downs are not eligible for

unemployment benefits so long as they have reasonable assurance that they will

continue to be employed after the mandatory vacation period or temporary shut

down ends”).2

Conclusion [11] For the foregoing reasons, we affirm the Board’s denial of Employee’s claim for

unemployment benefits for the two-week Shutdown Period. [12] Affirmed.

Najam, J., and Kirsch, J., concur.

2 Because we affirm the Board’s decision on the grounds that Employee was not eligible for unemployment benefits for the weeks ending July 30 and August 6, 2016, under Ind. Code §§ 22-4-3-5 as set forth above, we need not address whether Employee was ineligible for benefits for the week ending July 30, 2016, for the additional reason that his deductible income exceeded his benefits for that week.

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