No. 12602
I N THE SUPREME COURT O THE STATE O M N A A
F F OTN
1974
M R H GAUNCE ,
ATA
P l a i n t i f f and A p p e l l a n t ,
BOARD O L B R APPEALS, E P O M N
F AO ML Y E T
SECURITY DIVISION, M N A A STATE DEPARTMENT
OTN
O L B R AND INDUSTRY, and H L Y S G R
F AO OL UA
CORPORATION,
Defendants and Respondents.
Appeal from: D i s t r i c t Court of t h e Seventh J u d i c i a l D i s t r i c t ,
.
Honorable L. C Gulbrandson, Judge p r e s i d i n g .
Counsel of Record:
For Appellant :
Robert L. Stephens, Jr. argued, B i l l i n g s , Montana
For Respondents:
Moody B r i c k e t t argued, Helena, Montana
Submitted: May 22, 1974
Decided :
JUL 18 1974
Filed : JUL 18 1974
Mr. Justice Gene B. Daly delivered the Opinion of the Court.
This is an appeal from a final judgment adverse to plain-
tiff from the district court of the seventh judicial district,
county of Richland, Hon. L. C. Gulbrandson sitting without a
jury. The case concerns plaintiff's discharge from employment
by the Holly Sugar Corporation and an adverse ruling on plaintiff's
appeal to the Montana State Department of Labor and Industry.
Plaintiff, Martha Gaunce, was discharged from her job
as a clerk with the Holly Sugar Corporation in Sidney, Montana,
on September 29, 1971. The reason given for termination was in-
subordination, refusing to stay overtime to finish work and re-
fusing to break in a part time worker for relief.
Plaintiff made claim for unemployment compensation bene-
fits on November 7, 1971. An initial determination was made on
November 19, 1971 by a deputy claims examiner that the charges
made by the employer on the termination slip were misconduct
under section 87-106(b)(l), R.C.M. 1947, resulting in partial dis-
qualification for unemployment compensation, for a period of not
less than two nor more than nine weeks.
Plaintiff requested a hearing on appeal from the initial
determination. The Montana Employment Security Commission Appeals
Tribunal heard testimony on December 16, 1971 in Sidney, and
rendered its Decision Number 9009 on December 27, 1971, sustain-
ing the claims examiner.
Plaintiff then appealed to the State Board of Labor Appeals
and following a hearing de novo the Board sustained the Montana
Employment Security Commission ruling. The case was then taken
to the district court and from an adverse judgment of that court,
plaintiff now appeals to this Court.
Section 87-108(d), R.C.M. 1947, limits judicial review
in this language:
* * * I n any j u d i c i a l p r o c e e d i n g under t h i s
s e c t i o n , f i n d i n g s o f t h e commission a s t o t h e
f a c t s , i f s u p p o r t e d by e v i d e n c e and i n t h e a b s e n c e
o f f r a u d , s h a l l be c o n c l u s i v e , and t h e j u r i s d i c t i o n
o f s a i d c o u r t s h a l l be c o n f i n e d t o q u e s t i o n s of
law. * * *I1
I n J o r d a n v . C r a i g h e a d , 1 1 4 Mont. 337, 136 P.2d 5 2 6 , t h i s
C o u r t h e l d t h a t whether t h e r e i s s u b s t a n t i a l e v i d e n c e t o s u s t a i n
t h e Commission f i n d i n g s i s a q u e s t i o n o f l a w . That s u b s t a n t i a l
e v i d e n c e i s n o t a mere s c i n t i l l a b u t s u c h r e l e v a n t e v i d e n c e a s a
r e a s o n a b l e mind might a c c e p t a s a d e q u a t e t o s u p p o r t a c o n c l u s i o n .
The o n l y i s s u e t o be reviewed by t h i s Court t h e n i s : Is
t h e r e " s u b s t a n t i a l e v i d e n c e " t o s u p p o r t t h e f i n d i n g s o f t h e Board
and t h e d i s t r i c t c o u r t ? I f s o , d o e s t h i s c o n s t i t u t e "misconduct"?
S e c t i o n 87-106, R.C.M. 1947, l i m i t s b e n e f i t s t o p e r s o n s
discharged :
"(1)F o r misconduct c o n n e c t e d w i t h h i s work, o r
a f f e c t i n g h i s employment * * *."
P l a i n t i f f makes an extended argument a s t o what c h a r g e s
of misconduct are l e g a l l y b e f o r e t h i s C o u r t . W need n o t c o n c e r n
e
o u r s e l v e s w i t h o t h e r t h a n t h e f i n d i n g s and c o n c l u s i o n s of t h e
Board of Labor Appeals a f t e r i t s h e a r i n g d e novo and t h e f i n d i n g s
of t h e d i s t r i c t c o u r t . S e c t i o n 8 7 - 1 0 8 ( a ) , R.C.M. 1947. From
t h e v e r y i n c e p t i o n of t h i s m a t t e r t h e t e r m i n a t i o n s l i p d e s i g n a t e d
i n s u b o r d i n a t i o n , r e f u s i n g t o work o v e r t i m e and r e f u s i n g t o b r e a k
i n a p a r t t i m e worker f o r r e l i e f . The Board o f Labor Appeals i n
more d e t a i l and i n c l u d i n g r e l a t e d matters found t h e same t h r e e
a r e a s of f a c t t o be sustained. The d i s t r i c t c o u r t i n i t s f i n d -
i n g o f f a c t No. I11 found t h e r e was a f a i l u r e t o c o o p e r a t e w i t h
h e r employer i n t r a i n i n g a new employee; which f i n d i n g i n r e s p e c t
t o p l a i n t i f f ' s a t t i t u d e would imply i n s u b o r d i n a t i o n . F i n d i n g of
f a c t No. I V and No. V f a i r l y f i n d r e f u s a l t o work o v e r t i m e . It
would be f a i r t o c o n c l u d e that r e f u s a l t o t r a i n a new employee
and r e f u s a l t o work o v e r t i m e are p r o p e r l y b e f o r e t h i s C o u r t f o r
review inasmuch as proof of either would constitute at least an
insubordinate attitude.
Several cases have been cited to us demonstrating miscon-
duct which include refusal to work overtime: Davis v. Unemploy-
ment Comp. Bd. of Review, 187 Pa.Super. 116, 144 A.2d 452; Wilsey
v. Unemployment Compensation Bd. of Rev., 169 Pa.Super. 368, 82
A.2d 503; Sampson v. Doyal, (La. 1968), 215 So.2d 149; and refusal
to train a fellow worker: Otto v. Unemployment Compensation Bd.
of Review, 189 Pa.Super. 489, 151 A.2d 795.
Both parties agree the definition of misconduct in Boynton
Cab Co. v. Neubeck, 237 Wis. 249, 296 N.W. 636 is accurate. That
definition is summarized in the Anno. at 26 ALR3d 1356, 1359 as:
"(1) a deliberate, wilful, or wanton disregard
of an employer's interests or of the standards
of behavior which he has a right to expect of
his employee, or (2) carelessness or negligence
of such a degree or recurrence as to manifest
equal culpability, wrongful intent, or evil
design. "
We therefore conclude the acts complained of here, if
substantiated, would constitute simple misconduct under section
87-106, R.C.M. 1947.
Plaintiff extracts testimony from the record and in an
exercise in semantics demonstrates that Mr. Nigro, plaintiff's
supervisor, never unequivocally asked plaintiff to train the new
employee and she never really refused, but did not actively par-
ticipate in the training. This kind of reasoning would be proper
before the Board but here we are not allowed to examine the evi-
dence in the light of it being susceptible to different inferences
or logic or whether plaintiff remaining silent or merely shaking
her head during a discussion with management meant anything at all.
It is also clear that even where the evidence is not in
substantial dispute yet if different inferences may be drawn from
such evidence it is within the proper province of the Commission
to determine which inferences should be drawn and inferences so
drawn are conclusive and binding on the reviewing court.
A careful examination of the entire record reveals the
nearing was fairly and informally held. Plaintiff was allowed
to answer allegations and cross-examine during the testimony of
each witness and/or give additional clarifying information. There
was unequivocal testimony by Mr. Murdock of the Holly Sugar Cor-
poration as to the refusal to train the new girl and the refusal
to work overtime. Mr. Nigro was not as forceful, but his testi-
mony was to the same effect.
Plaintiff denies some of the allegations and admits but
excuses others on the basis of ''this was not my job" or in regard
to training "since I had been told by Mr. Smith, I told her to go
see Mr. Smith." However, during Mr. Murdock's testimony she did
admit she refused his request to train the new employee to operate
the addressograph-multigraph machine. These are but a few examples
to demonstrate that the record reviewed as a whole, irregardless
of conflicting testimony, does contain sufficient competent and
substantial evidence if believed by the Board to sustain the find-
ings.
The judgment of
W Concur:
e
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Justice
'Chief Justice