No. 85-423
I N THE SUPREME COURT OF THE STATE OF MONTANA
1986
GYPSY HIGHVIEW GATHERING SYSTEM,
INC. ,
P e t i t i o n e r and A p p e l l a n t ,
-vs-
ROBERT L . STOKES,
R e s p o n d e n t and R e s p o n d e n t .
APPEAL FROM: D i s t r i c t C o u r t of t h e N i n t h J u d i c i a l D i s t r i c t ,
I n a n d f o r t h e C o u n t y of G l a c i e r ,
T h e H o n o r a b l e R.D. M c P h i l l i p s , Judge p r e s i d i n g .
COUNSEL OF RECORD:
For Appellant:
F r i s b e e , M o o r e & S t u f f t ; John P . Moore, C u t B a n k ,
M0ntan.a
F o r Respondent:
Murphy, C u r t i s & B u r k ; R. L. Stoney B u r k , C h o t e a u ,
Montana
S u b m i t t e d on B r i e f s : Jan. 30, 1 9 8 6
Decided: A p r i l 10, 1986
APH I I; !ygg
Filed:
--
Clerk
-1
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of
the Court.
Gypsy Highview Gathering System, Lnc. (GHGS), appeals
the July 3, 1985, order of the Ninth Judicial District Court,
County of Glacier, a.ffirming a decision of the Board of Labor
Appeals awarding unemployment cornpensation benefits to its
employee, Robert L. Stokes. We affirm.
Robert Stokes was hired by GHGS as a gas plant employee
on November 15, 1982. Stokes had previously worked seven
years at another gas plant. His starting monthly wage at
GHGS was $1500. After three months, Stokes received a $100 a
month raise. Over the course of the next year, Stokes
allegedly complained repeatedly to his employer about his
wage and about working conditions at the pl-ant. In November
of 1983, Stokes requested a $400 a month raise. His employer
requested that Stokes wait until February, when his salary
would increase to an amount closer to that of the national
standard. On February 1, 1984, Stokes' pay check reflected
another $100 a month raise. Stokes quit his job that same
day.
On February 13, 1984, Stokes filed a claim seeking
unemployment benefits. On the claim form, Stokes listed his
main reasons for quitting 2s: "working conditions, safety of
equipement, (sic) la.ck of safety equipment - substandard.
Told employer wages were too low for work performed. (aver.
nat. scale $25OO.OO/month) & condition of equipement (sic)
(also alone during shift handling acid gases - H2S).
Employer would not raise wages."
Stokes was initially determined to be ineligible for
unemployment benefits on February 23, 1984, for the following
reasons:
You voluntarily left your employment because of
dissatisfaction with the working conditions. The
evidence in the record does not establish the
conditions were substandard or detrimental to your
well-being. Your separation was without good
cause.
Stokes sought a redetermination, following which his
claim was again denied on March 20, 1984. The
redetermination deputy stated:
Your past employer maintains that the inspections
made by the Quality Air Control Bureau and the EPA
showed no problems in the working conditions.
Additionally, the insurance inspection passed. All
inspections were done during this past month. He
further states that goggles were available in the
office for workers.
. .. Your employer further states that you were
hired at $1500 per month and advised that this wage
would increase to $1600 at the end of the 3 month
probationary period. The information in the record
does not establish that the employment was union
employment nor does it show that you were promised
a specific wage increase to $2371 per month.
The work is not shown to be unsuitable and the
decision dated 2/23/84 remains in effect.
Stokes appealed that decision to an appeals referee,
claiming that the inspections were performed after Stolces '
termination. A telephone hearing was had April 9, 1984,
following which the redetermination denying benefits to
Stokes was affirmed.
Next, Stokes appealed to the Board of Labor Appeals.
Another telephone hearing was had June 5, 1984. Stokes, John
Moore, attorney for GHGS, Lloyd Peterson, Stokes' supervisor
while employed at GHGS, and A.A. Arras, Jr., controller of
GHGS, participated. The Board of Labor Appeals, by a
two-to-one vote, reversed the previous rulings and held
Stokes to be entitled to unemployment benefits. In so
holding, the Board found that Stokes quit his employment
because of low wages and dangerous working conditions. The
Board then held that:
[Tlhe evidence does not justify the conclusion that
the claimant had good cause for leaving insofar as
the salary question is concerned . .
. On the other
hand the evidence before the Board establishes that
during a period from November 11, 1979 through
January 14, 1984 there were eight injuries i-n the
employment where claims were made to the Workers
Compensation Division. During that period of time
14 people were employed at the place of employment
of the claimant. In addition to that on November
29, 1983, it was pointed out to the employer by the
Department of Health and Environmental Sciences of
the State of Montana that they had been in
violation, at least since 1982, in connection with
permit requirements, insofar as making emissions
into the atmosphere, particularly SO2 emissions.
The evidence further establishes that after an
inspection by the Occupational Safety and Health
Administration, it was determined that written
standard operating procedures governing the
selection and use of respirators was not
established and that self-containing breathing
apparatus was not provided at the plant site. The
testimony of the claimant further establishes that
there were additional shortages of safety equipment
immediately available to employees working in the
place of employment. After a walk around
inspection on April 10, 1984, conducted by the
Occupational Safety and Health Administration, it
was determined that the employer should plumb in an
eyewashing facility, should install an H2S alarm
system in the scrubbing tower room and should
establish a written respiratory program. That
under all of the circumstances and considering the
nature of the occupation within which the claimant
was working where hazardous chemicals are in the
working environment and to which the employees are
often exposed the claimant had good cause for
leaving the employment.
It became GHGS's turn to appeal, this time to the
District Court of the Ninth Judicial District. In an opinion
reflecting the trial judge's frustration with the standard
controlling his review of the Board's order, substantial
evidence was found to support the Board's decision. GHGS now
appeals to this Court, raising the following two issues:
1. Is the finding of "good cause for leaving
employment" supported by substantial evidence?
2. Was Stokes justified in auitting his job on the
basis of substantial evidence in the record?
The Montana Administrative Procedures Act does not apply
to Board of Labor Appeals' decisions. City of Billings v.
Montana Board of Labor Appeal-s (Mont. 1983), 663 P.2d 1167,
1169, 40 St.F.ep. 648, 649. Rather, 39-51-2410 (5), MCA,
sets forth the scope of judicial review of the Board's
decisions.
(5) In any judicial proceeding under 39-51-2406
through 39-51-2410, the findings of the board as to
the facts, if supported by evidence and in the
absence of fraud, shall be conclusive and the
iurisdiction of said court shall be confined to
questions of law. Such action and the questions so
certified shall be heard in a summary manner and
shall be given precedence over all other civil
cases except cases arising under the workers'
compensation law of this state.
This statutory standard of review has been examined and
discussed in a number of cases. See for example, Jordan v.
Craighead (1943), 114 Mont. 337, 136 P.2d 526; Noone v.
Reeder (1968), 151 Mont. 248, 441 P.2d 309; Itirby Co. of
Bozeman, Inc. v . Employment Security Division (Mont. 1980) ,
614 P.2d 1040, 37 St.Rep. 1255; City of Billings, supra; and
Dick Irvin, Inc. v. Montana Department of Labor (Mont. 1983),
In Kirby, 614 P.2d at 1042-1043, 37 St.F.ep. at 1257,
this Court stated:
Under the plain meaning of this statute and the
case law interpreting it, the District Court must
treat the findings of the Board as conclusive, if
the findings are supported by the evidence and in
the absence of fraud. Noone v. Reeder (1968), 151
Mont. 248, 252, 441 P.2d 309. The District Court
should, therefore, limit its review of the findings
of the Board to a consideration of whether they are
supported by the evidence.
"Supported by the evidence" means supported by
substantial evidence. Substantial evid-ence is something more
than a scintilla of evidence, but may be less than a
preponderance of the evidence. In fact, we held in Jordon v.
Craighead, 114 Mont. at 343, 136 P.2d at 528:
Thus the sole question for the court with relation
to the evidence is one of law, namely, whether the
findings are supported by substantial evidence,
regardless of whether there is also substantial
evidence or even a preponderance of evidence to the
contrary.
This same standard applies to this Court when reviewing
a decision of the Board of Labor Appeals. Applying this
standard, we find substantial evidence to affirm the decision
of the Board.
Every fact, except one, relied on by the Board in making
its determination that the working conditions at GHGS were
unsafe is supported by evidence presented to the Board. The
exception is the Board's finding that no self-contained
breathing apparatus was available for the employee's use.
This finding is incorrect. Appellee's Exhibit No. 2, a
report from the Occupational Health and Safety
Administration, states that although such an apparatus is
available at the plant, no written procedure regarding its
use is available. This one error does not, however,
substantially alter the evidence supporting the Board's
conclusions that an unsafe working environment existed.
Appellee's Exhibit No. 6 indicates that since the
opening of the plant in 1979, there have been in fact eight
accidents which merited the filing of a workers' compensation
claim.
Appell.eels Exhibit No. 4 is a letter from the United
States Environmental Protection Agency informing GHGS that it
was in violation of certain standards governing the emission
of SO2 into the atmosphere. This exhibit confirms Stokes'
allegation that he was exposed to poisonous gases while
employed at GHGS.
The OSHA report, discussed above, recommends that GHGS:
1) install an eye-washing facility; 2) install an H2S alarm
system; and 3) establish a written respirator program.
Appellant would have us examine other evidence in
support of its claim that working conditions at the plant
were safe. However, it is not our job to weigh conflicting
evidence presented to the Board. We must only determine
whether there is evidence to support the Board's findings.
Thus the real question becomes whether the working
conditions were so unsafe that Stokes had good cause for
terminating his employment. Again we must defer to the
decision of the Board. The evidence indicates numerous
safety and health violations hlr GHGS. The Board, with its
expertise in the area, is in the better position to determine
what i.s and is not safe. Further, an employee need not wait
to be seriously injured before acting to remove himself from
an unsafe working environment. There is substantial evidence
to support the Board's decision that Stokes had good cause to
quit his job at GHGS.
Affirmed.
We concur:
/
TsL......l"-
Chief Justice
c
Justices
Mr. Justice John C. Harrison, dissenting:
I dissent. Viewing the facts of this case as liberally
a.s I can in favor of the respondent, the prevailing party
below, I fail to find substantial evidence to justify a
decision supporting a finding of "good cause" by the Board of
Labor Appeals. The plaintiff here quit his job because he
didn't get a raise in wages he thought he should get. He now
shakes the unemployment fund for benefits I feel he is not
entitled. It is interesting to note that there were three
separate hearings on this claim and two previous referees
denied the claim before the action of the Board setting on a
third hearing. Here in addition to drawing down unemployment
payments, the plaintiff has in addition income from his
general store, a post office and farming operations. It is
little wonder we are having problems financing the fund with
these kinds of awards!