No. 8 6 - 3 6 7
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
MICHAEL H. CONNOLLY,
Petitioner and Appellant,
-vs-
MONTANA BOARD OF LABOR APPEALS, and
VALLEY VIEW ESTATES NURSING HOME,
Respondent and Respondent.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Ravalli,
The Honorable Douglas Harkin, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
James A. Haynes, Hamilton, Montana
For Respondent:
Mary Anne Simpson, Dept. of Labor, Helena, Montana
Worden, Thane & Haines; Molly Shepherd, Missoula,
Montana
Submitted on Briefs: Jan. 8, 1 9 8 7
Decided: March 30, 1987
Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.
Michael H. Connolly appeals an order entered in the
Fourth Judicial District, Ravalli County, affirming the Board
of Labor Appeals (Board) decision denying unemployment
benefits.
We affirm.
Two issues are presented for our review:
(1) Whether the District Court erred in finding that
the Board's decision was based on substantial credible
evidence?
(2) Whether the District Court erred when it deter-
mined that no issues of law were before the court?
Appellant Connolly was hired by Valley View Estates
Nursing Home in April 1981 as a Licensed Practical Nurse
(LPN). As an LPN, Connolly was responsible for the immediate
care of the facility's residents during the night shift.
Connolly was also the night shift supervisor of four nurses'
aides.
Valley View began experiencing problems with Connolly
in the spring of 1983. At that time, a number of aides
complained to Bonnie Hicks, director of nursing, that
Connolly was harrassing and playing games with the nurses'
aides. Administrators, aides and Connolly met in an effort
to resolve the problem. Connolly was warned about his dis-
ruptive conduct.
In May 1984, the nurses' aides again complained to
Yicks about Connolly. A staff meeting was held on June 20,
i984, with Connolly and the complaining aides present. The
nurses' aides testified that Connolly picked on them and
played games with them, including directing them to check on
residents who were asleep, dry, and did not need to have
their bedding changed. They further stated that Connolly ,
their supervisor, often disappeared and that they could not
find him when they needed him. Nurses' aide Joseph testified
that Connolly insisted she take blood pressure readings
despite her protest that she was not qualified and could not
hear the heartbeats.
In response to these accusations, Connolly denied the
existence of any staff problems. Hicks stated that, after
the June 1984 meeting, she warned Connolly to stop harassing
and playing games with the aides; that Connolly must not
cause residents to be disturbed unnecessarily at night; that
Connolly must not insist untrained aides take blood pressure
readings; tha.t his reports must be patient oriented and not
subject to misinterpretation; and that he must communicate
with the aides.
In August 1984, the nurses aides under Connolly's
supervision again complained to director of nursing Hicks
that Connolly was harassing them. Although, Connolly denied
this allegation, the complaints continued throughout August
1984. In an attempt to determine the source of the night
shift's problems, Hicks rotated a "chronic complainer" to
another shift. However, additional complaints concerning
Connolly's work performance began to surface in September
1984.
Nurses' aide Snell testified, under oath, at the ap-
peals referee's hearing on December 19, 1984, that Connolly
had been unnecessarily rough in changing a patient's bandage
and had failed to change a patient's bloody dressing on
several occasions. Nurse Snow testified that Connolly, on
September 5, 1984, refused to aid a patient with an impacted
stool, even though the patient had protested loudly and
continuously during the night shift. Director of nursing
Hicks testified that when she questioned Connolly about the
patient, Connolly stated "it's Mr. Aishe, he thinks there's
something the matter with him hut there isn't." Nurses' aide
Snell, stated Aishe had been "hollering" d-uring the night.
Nurses' aide Joseph stated that she notified Connolly, but
Connolly refused to remove Aishe's impa.cted stool. Nurse
Pape testified that she informed Hicks on September 5, 1984,
that Connolly, in violation of prescribed procedures, contin-
ued to take radial instead of apical pulses. Nurse Pape
stated she instructed Connolly at least twice in the preced-
ing twelve months to refrain from the less accurate radial
pulse method. After questioning the residents, Hicks deter-
mined that Connolly had not taken apical pulses and had
falsified pulse records.
On September 6, 1984, administrator Hash and director
of nursing Hicks met to discuss the Aishe incident and the
falsification of pulse records. They decided to terminate
Connolly. However, in order to find a replacement, Connolly
wa.s not terminated until September 17, 1984.
Following termination, Connolly filed a claim for
unemployment compensation. Valley View's assistant adminis-
trator responded that Connolly was terminated because he
experienced difficulty when working with night aides and
Connolly had falsified documentation. When Connolly was
allowed benefits, administrator Hash informed the Montana Job
Service representative that the assistant administrator of
Valley View had not detailed the reasons for Connolly's
termination, due to confidentiality rules. When Hash in-
formed the Job Service that Connolly had falsified records,
refused to attend to a patient in distress, disrupted the
night shift and reported dressing changes that had not been
made, Connolly was disqualified from receipt of benefits.
Appeals referee Maronick sustained Connolly's disquali-
fication after a December 19, 1984, evidentiary hearing at
which fourteen witnesses testified. Maronick concluded that
"[Connolly's] actions in record making, client care, and
staff supervision showed a wanton disregard of the standards
of behavior the employer had a right to expect of him . . . "
After reviewing the record and hearing further testimony and
argument, the Board of Labor Appeals by a two-to-one vote,
determined there was not "any substantial evidence to warrant
a modification or reversal" of Maronick's decision. The
Board adopted the appeals referee's findings of fact and
conclusions of law.
The District Court similarly concluded that the Board
of La.bor Appeals' findings of fact. were supported by substan-
tial evidence and that no issues of law were presented.
Issue I
Whether the District Court erred when it held that the
Board's decision was based on substantial credible evidence?
The Montana legislature has strictly limited the scope
of judicial review of decisions of the Board of Labor Ap-
peals. Review is governed by S 39-51-2410(5), MCA, which
provides that:
[TJhe findings of the board as to the
-
facts, if supported by evidence - -
and in
the absence of fraud, shall be conclu-
sive and theiurisdiction of said court
shall be confined to questions of law.
[Emphasis added.]
This Court has interpreted S 39-51-2410(5), MCA, in
Noone v. Reeder (1968), 151 Mont. 248, 252, 441 P.2d 309,
312, stating:
The court is not permitted to balance
conflicting evidence in support of and
in opposition to the Commission's find-
ings of fact, nor to determine which is
the more substantial evidence, nor to
consider where the preponderance of the
evidence lies; for to do so would be to
substitute the Court's view of the
evidence for that of the Commission, and
effectively nullify the conclusive
character of the Commission's findings
of fact as provided by statute.
When a District Court reviews a decision of the Board
and adopts the decision of the Board of Labor Appeals, the
court must first determine if substantial evidence supports
the Board's factual findings. If so, those facts are conclu-
sive. A court is permitted to make different findings only
if it determines that no substantial evidence exists for the
Board's findings. Dick Irvin, Inc. v. Mont. Dept. of Labor
(Mont. 1983), 673 P.2d 1271, 1273, 40 St.l?ep. 2086, 2089.
Substantial evidence has been defined as:
[Sjuch relevant evidence as a reasonable
mind might accept as adequate to support
a conclusion or, stated another way,
enough evidence to justify a refusal to
direct a verdict on a factual issue in a
jury trial.
Noone, 151 Mont. at 252, 441 P.2d at 311-312.
The District Court recognized, in its findings of fact
and conclusions of law, that "the threshold question is
whether the findings made by the Board of Labor Appeals [are]
supported by the evidence." The following examination of the
record demonstrates, the District Court correctly found the
Board's decision was supported by substantial evidence. The
Board adopted the appeals referee's findings in the following
matters: (1) Connolly failed to comply with Valley View's
apical pulse requirement and that Connolly had falsified
medical charts; (2) Connolly did not examine or act to
relieve a patient, after being advised of the problem; and
(3) Connolly was deficient as a supervisor.
The District Court found that substantial credible
evidence supported the appeals referee's decision. The court
properly declined to enter any factual findings of its own.
Dick Irvin, Inc., 673 P.2d at 1273.
Issue I1
Whether the District Court erred when it held that no
issues of law were before the court?
Connolly contends the District Court erred when it held
that Connolly's acts constituted misconduct. ,
Second.1~
Connolly contends the District Court erred when it held that
Valley View did not waive its right to assert misconduct.
Pursuant to § 39-51-2410(5), MCA, the jurisdiction of a
court reviewing decisions of the Board of Labor Appeals is
confined to questions of law when the Board's findings are
supported by evidence and in the absence of fraud. The
District Court properly concluded that no issues of law were
before the court. Section 39-51-2303, MCA, provides that
[A]n individual shall be disqualified
for benefits if he has been discharged:
(1) for misconduct connected - -
with his
work or affecting his employment ...
[Emphasis added.]
In Gaunce v. Board of Labor Appeals (1974), 164 Mont. 445,
448, 524 P.2d 1108, 1110; citing Federal Aviation Administra-
tion v. Mont. State Dept. of Labor & Industry (Mont. 1984) ,
685 P.2d 365, 367, 41 St.Rep. 1542, 1545 this Court defined
misconduct as:
[A] deliberate, willful or wanton disre-
gard of an employer's interest or of the
standards of behavior which he has the
right to expect of his employee or
carelessness or negligence of such
degree or recurrence as to manifest
equal culpability, wrongful intent or
evil design.
Gaunce, 524 P.2d at 1110.
Connolly's employment history at Valley View is marred
with allegations of disruption, insubordination and disregard
of fellow employees. Both the appeal's referee found, and
the Board of Labor Appeals found that allegations concerning
Connolly's employment problems were accurate. Clearly, an
employer has a right to expect an employee to maintain satis-
factory standards of behavior. Connolly, as determined by
the Board of Labor Appeals failed in the following areas:
(1) he refused to follow a supervisor's instructions;
(2) he falsified records, clearly in violation of his em-
ployer's policy; (3) he refused to assist a patient in
distress, even though Connolly was the sole person on duty
who was qualified to assist the patient; and (4) he repeat-
edly harassed and played games with his subordinates, al-
though Connolly was previously warned to refrain from such
conduct.
The District Court properly concluded that the determi-
nation of "misconduct" was a factual question, properly left
to the appeal's referee and the Board of Labor Appeals.
Connolly also contends that because Valley View waited
eleven days following the September 6, 1984 decision to
terminate Connolly, Valley View should be estopped from
claiming misconduct. Connolly claims that since waiver is a
legal question, the District Court erred when it failed to
make a ruling on the issue.
Connolly's argument fails. An employer is not obligat-
ed to immediately terminate an employee once such a decision
has been made. However, a employer must act in good faith
a.nd in a reasonable manner. Dare v. Montana Petroleum Mar-
keting Company (Mont. 1984), 687 P.2d 1015, 41 St.Rep. 1735.
Here, Valley View acted reasonably when it waited eleven days
to terminate Connolly in order that: (1) a replacement for
Connolly could be located, and (2) other Valley View
employees could take their scheduled vacations.
We hold that Valley View did not waive its right to
claim misconduct. Section 39-51-2303, MCA.
We affirm the District Court on all issues.
Chief Justice
We concur: