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.

      Court of Appeals of Indiana | Memorandum Decision No. 93A02-1701-EX-125 | October 26, 2017    Page 2 of 9
      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


      Court of Appeals of Indiana | Memorandum Decision No. 93A02-1701-EX-125 | October 26, 2017   Page 3 of 9
      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

      Court of Appeals of Indiana | Memorandum Decision No. 93A02-1701-EX-125 | October 26, 2017   Page 4 of 9
      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

      Court of Appeals of Indiana | Memorandum Decision No. 93A02-1701-EX-125 | October 26, 2017   Page 5 of 9
      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:


      Court of Appeals of Indiana | Memorandum Decision No. 93A02-1701-EX-125 | October 26, 2017   Page 6 of 9
                       (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



      Court of Appeals of Indiana | Memorandum Decision No. 93A02-1701-EX-125 | October 26, 2017   Page 7 of 9
       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,


       Court of Appeals of Indiana | Memorandum Decision No. 93A02-1701-EX-125 | October 26, 2017   Page 8 of 9
       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.

       Court of Appeals of Indiana | Memorandum Decision No. 93A02-1701-EX-125 | October 26, 2017        Page 9 of 9
