No. 83-458
IN THE SUPREMZ COURT OF THE STATE OF MONTANA
1984
WILLIAM SLATER and ELSE SLATER,
d/b/a HEMINGWAYS'S RESTAURANT AND BAR,
Plaintiffs and Respondents,
EMPLOYMENT SECURITY DIVISION OF THE
MONTANA DEPARTFIENT OF LABOR AND
INDUSTRY, et al.,
Respondents and Appellants,
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Robert H. Wilson, Judge presiding.
COUNSEL OF FECORD:
For Appellants:
R. Scott Currey, Dept. of Labor & Industry,
Helena, Montana
D. Michael Eakin, Montana Legal Services,
Billings, Montana
For Respondents:
Hennessey Law Office, Billings, Montana
Submitted on Briefs: December 8, 1983
Decided: February 9, 1984
Filed:
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Clerk
Mr. Justice L.C. Gulbrandson delivered the Opinion of the
Court.
Defendant Freddee Wessell appeals from the judgment of
the District Court of the Thirteenth Judicial District,
Yellowstone County, disqualifying her from receipt of
unemployment benefits by reason of misconduct. (The
Employment Security Division ceased to exist in September,
1981 and the proper state agencies in this action are the
Department and the Board of Labor Appeals. Although the
Department must be deemed a party in any action involving an
appeal to district court of a Board of Labor Appeals
administrative decision, see Section 39-52-2410, MCA,
neither the Department nor the Board took an interest or
actively participated in the appeal in this case.) For the
reasons stated below, we reverse the judgment of the
District Court.
Freddee Wessell was employed by Hemingway's Restaurant
and Bar as a cocktail waitress for approximately five months
prior to the end of July, 1982. William Slater is the owner
of Hemingway's and his wife, Else, works as the floor
manager. During Wessell's five months on the job, the
Slaters had expressed some dissatisfaction with her job
performance, particularly her occasional use of foul
language in the presence of customers and her alleged
proclivity for drinking while on the job. She was
reprimanded in May of 1982 for these indiscretions. The
parties disagree over whether she received similar
reprimands for like behavior between May and July.
On July 20, a slight argument ensued between Else
Slater and Wessell concerning the appropriateness of
punching in and out on the time clock during Wessell's
workshift. FJessell apparantly told two of the bartenders
that she was dissatisfied with her work and intended to
quit. The bartenders relayed this information to Else, who
in turn brought the matter to the attention of William
Slater. Notice of intent to quit normally would be relayed
directly to the floor manager by an employee. Nevertheless,
William and Else decided to replace Wessell and either hire
a new waitress or use a current employee to cover Wessell's
next scheduled shift.
Wessell returned to work her next regularly scheduled
shift July 20. When she arrived, she saw that a fellow
employee was already covering for her. Else was not present
to discuss the matter, so Wessell went directly to the
executive chef, Bill Gleason. She asked Gleason whether she
had been fired. He informed her that he did not know. A
brief discussion then took place, during which Wessell
indicated that she really didn't care if she was scheduled
for work or not. Gleason suggested that her attitude was
poor. At this point, Gleason maintains that Wessell used a
four-letter word. He then told her that "you should just go
home then. You just figure you are done, go home."
However, he never told her that she was fired. Wessell left
the premises and did not return, assuming that she no longer
had a job at Hemingway's.
Wessell filed for unemployment benefits in early
August. William Slater responded to notice of her
application, alleging that she had been terminated for
misconduct. Misconduct is a sufficient ground for
disqualification from receipt of benefits. Section
39-51-2303, MCA. A c l a i m s examiner f o r t h e Department o f
L a b o r a n d I n d u s t r y d e t e r m i n e d t h a t t h e r e was no e v i d e n c e o f
m i s c o n d u c t , and a p p r o v e d t h e a p p l i c a t i o n . S l a t t e r appealed
the decision. A hearing was held before a Department
a p p e a l s r e f e r e e on September 23, 1982. The S l a t e r s , G l e a s o n
and Wessell testified a t that time concerning the
allegations of misconduct. The referee concluded that
Wessell had been terminated for reasons other than
m i s c o n d u c t , and a f f i r m e d t h e award o f b e n e f i t s .
A further appeal was taken to the Board of Labor
Appeals. Following a hearing, the Board affirmed the
findings, conclusions and decision of the referee. The
S l a t e r s appealed t h e Board decision to District Court
p u r s u a n t t o S e c t i o n 39-51-2410, MCA, a r g u i n g t h a t t h e Board
d e c i s i o n was n o t s u p p o r t e d by t h e e v i d e n c e . After reviewing
the t r a n s c r i p t of proceedings before the referee and the
Board, and c o n s i d e r i n g b r i e f s s u b m i t t e d by t h e p a r t i e s , the
District Court concluded t h a t Wessell had been fired for
misconduct, and disqualified her from r e c e i v i n g benefits.
W e s s e l l a p p e a l s from t h e D i s t r i c t C o u r t ' s judgment.
The o n l y issue presented in this appeal is whether
s u b s t a n t i a l evidence e x i s t s t o support t h e d e c i s i o n of the
B o a r d a w a r d i n g unemployment b e n e f i t s t o Wessell, such t h a t
t h e judgment of t h e D i s t r i c t C o u r t s h o u l d b e r e v e r s e d . The
relevant standard of review is set forth in Section
39-51-2410(5), MCA: "In any judicial proceeding under
39-51-2406 t h r o u g h 39-51-2410, t h e f i n d i n g s of t h e board 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 of
fraud, shall be conclusive and the jurisdiction of said
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 o f l a w . " The Montana
Administrative Procedure Act elaborates on the standard of
judicial review:
"--_-----------------------------
The court may not substitute its
judgment for that of the agency as to the
weight of the evidence on questions of
-
fact. The court may affirm the decision
of the agency or remand the case for
further proceedings. The court may
r e v e r s e or m o d i f 1----------------
---------------- t h e d e c i s i o n if
substantial rights of the appellant have
-------- u - - - - - - - - a u s e t h e
b e e n p r e j -d i c e d -b e c --------
administrative findines, inferences,
..................... ---
conclusions, or decisions are:
(a) in violation of constitutional or
statutory provisions;
(b) in excess of the statutory
authority of the agency;
(c) made upon unlawful procedure;
(d) affected by other error of law;
-
(e) clearly erroneous in view of the
......................... and substantial
reliable, probative,
evidence on the whole record:
(f) arbitrary or capricious or
characterized by abuse of discretion or
clearly unwarranted exercise of
discretion; or
(g) because findings of fact, upon
issues essential to the decision, were
not made although requested."
Section 2-4-704(2), MCA (emphasis added). See also Kirby
Co. of Bozeman, Inc. v. Employment Sec. Div. (Mont. 1980),
The Slaters maintain that Wessell was fired on July
20, 1982, when the chef told her to leave, supposedly
because of her "bad attitude" and use of a four-letter word
in the presence of a superior. Wessell insists that the
decision to discharge her was made July 17, following her
remarks to the bartenders about her intention to quit, and
that misconduct could not be the basis for her termination.
Although she concedes that her attitude about her
employment, as expressed to the chef, was bad, she denies
using a four-letter word in the chef's presence.
The testimony of the parties before the referee and
the Board was conflicting at times, and answers by the
parties and witnesses to questions were sometimes equivocal.
Nevertheless, we find substantial, credible evidence to
support the Board's determination that Wessell was
discharged for reasons other than misconduct.
The record reveals that Wessell notified the
bartenders of her intention to quit. Although this did not
constitute the usual notice to leave, the employers treated
it as such and decided to hire a new waitress or assign a
current employee to fill Wessell's shift. When Wessell next
returned to work and found another waitress working her
shift, she approached the chef, Bill Gleason. Gleason
appeared to have some knowledge of the events before and
after Wessell's argument with Else Slater. His testimony
suggests that the employee covering Wessell 's shift was
there to replace her and that Wessell's employment would
officially terminate at the end of a week, her "notice" to
the bartenders having been treated as a week's notice.
Gleason explained that he never specifically told Wessell
that she was fired. Although the chef had authority to
discharge employees, his testimony indicates that he had not
received instructions concerning Wessell's termination.
Considering the statements in the record as a whole, and
according due respect to any decisions made by the referee
and the Board concerning the weight of witness testimony and
credibility of the witnesses, we cannot say that the
ultimate decision of the Board was clearly erroneous.
The District Court's determination that Wessell was
fired by the chef for misconduct can be supported only by
selective treatment of certain aspects of the record.
Reaching that decision also required the court to weigh or
interpret critical witness testimony and credibility
differently than did the referee and the Board. Wessell
admittedly may not be the ideal employee, but the referee
and the Board concluded that the evidence, considered in its
entirety, did not compel a conclusion that her discharge
resulted from misconduct. Because the decision of the
referee and the Board is based on a fair interpretation of
the record, it should not be overturned.
The judgment of the District Court is reversed. The
decision of the Board of Labor
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Justice
We concur:
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Chief Justice