concurring and dissenting.
Entertaining generally views identical to those of Justice Huntley beginning with the second sentence of his separate opinion, while I concur in reversing, on remand the Court should direct the entry of an award in favor of Comegys.
I disagree with the Court’s opinion insofar as it refuses to recognize the Department’s concession made at oral argument that it makes no contention that the findings of fact made by the Commission’s referee, as found in the record, were in any way overturned, refuted, or set aside by the Commission. The position of the Department was simply that the Commission’s conclusion — which it made to replace that of the referee which the Commission struck aside — was not improper.
The referee, after setting out the basic evidentiary facts, made these findings:
“The Employer’s written policy provides that adverse disciplinary action can be brought about for improper conduct either on or off the job. There is no testimony in the record as to whether or not the contact by the collection agent or other individuals was detrimental to the operation of the Employer.
“The Referee finds that Claimant was discharged from his employment due to insufficient funds checks. The Referee finds that writing insufficient funds checks was in violation of the employer’s written policy.” R., p. 30.
Having done so the referee applied Idaho statutory law and case law to the facts at hand:
*770“II.
Misconduct Not Established
“An employer may discharge any employee for any reason. However, not every situation culminating in the employee’s discharge renders the employee ineligible for unemployment insurance benefits. Misconduct in the eyes of an employer may not be the kind of misconduct outlined in the Employment Security Law, Idaho Code, Section 72-1301, et seq., the absence of which is a condition of eligibility for unemployment insurance benefits.
“Misconduct is an ‘act of wanton or willful disregard of the employer’s interest, a deliberate violation of the employer’s rules, a disregard of standards of behavior which the employer has the right to expect of his employee, an intentional and substantial disregard of the employer’s interest or of the employee’s duties and obligations to the employer.’ See Wrobie v. Bonners Ferry Ranger Station, 97 Idaho 900, 556 P.2d 859 (1976); Watts v. Employment Security Agency, 80 Idaho 529, 335 P.2d 533 (1959); Johns v. S.H. Kress & Co., 78 Idaho 544, 307 P.2d 217 (1957).
“The Idaho Supreme Court has also stated that misconduct which will justify discharge must be violative of the employer’s interest. Wroble v. Bonners Ferry Ranger Station, 97 Idaho 900, 566 P.2d 859 (1976). In that case, the Court stated the following:
“ ‘While an employer may make almost any kind of a rule for the conduct of his employees and under some circumstances may be able to discharge an employee for violation of any rule, such does not, per se, amount to “misconduct” constituting a bar to unemployment compensation benefits.’ Supra [566 P.2d] at 861.
“The Referee concludes that Claimant was not discharged for misconduct in connection with his employment.
“There is no evidence in the record that the few contacts which were made by the collection agent and other individuals with the employer representatives were detrimental to the operation of the employer. In fact, the record establishes that most of the communication between Claimant’s employer and creditors in the collection agency was voluntarily initiated by the employer.
“Rule 7-18 of the employer states as follows:
“ ‘Cause — Basically a “cause” for disciplinary adverse action is a recognizable offense against the employer-employee relationship. Cause for adverse action run the entire gamut of offenses against the employer-employee relationship, including inadequate performance of duties and improper conduct on or off the job. It is up to the State to decide between these two extremes what constitutes a proper or valid cause.’
“The burden of proof is on an employer to establish misconduct. Parker v. St. Maries Plywood and Department of Employment, 27 ICR 713, [101 Idaho 415] 614 P.2d 955 (1980). The record at hand fails to establish anything related to Claimant’s job performance as a warehouseman which violates the employer’s interest, violates a rule relating to job performance, disregards standards of behavior which the employer has a right to expect of his employee, or a substantial disregard of the Claimant’s duties and obligations to the employer. Therefore, the Decision of the Appeals Examiner should be reversed.” R., pp. 31-32.
The Commission disagreed with the result reached, and ruled that claimant was guilty of “misconduct in connection with his employment, as defined by the Idaho Supreme Court.” (Emphasis added.) The final order, which was signed by two members only,1 was predicated on the declaration *771that “[t]he number of bad checks ... is sufficient to show willful misconduct,” and nothing more.
Such is not sufficient, however. What it comes down to is a standoff between two members of the Commission on the one hand and its learned-in-the-law referee, on the other, as to an application of this Court’s case law interpreting the statutory law. Such is the sole question, one which this Court alone can answer. Beyond dispute the referee was correct, and the two Commission members were wrong. The only harm done (until now) is the long delay Comegys has endured waiting for the benefits for which he most likely had more need for two and one-half years ago at the time of his discharge. However, the Court says, “Not yet, Mr. Comegys.” It is said that Comegys must litigate just a little longer in order that the Commission be given the opportunity to make findings of fact. I see no reason for such totally unwarranted delay. For certain I question the supposed need for new findings of fact. Why? Simply because the Department concedes that the findings of the referee were left intact by the Commission, which is not only obvious from the state of the record, but supported by the two following colloquies between Court and counsel for the Department at presentation of oral argument:
“JUSTICE HUNTLEY: Counsel, following that critical point up, don’t the rules require that there be findings of fact and conclusions of law and if, therefore, if the Commission doesn’t want to accept the referee’s findings they are duty bound to make their own findings and in this case they failed to do so.
“MR. MARTINDALE: Are you asking me?
“JUSTICE HUNTLEY: Yes, sir.
“MR. MARTINDALE: It’s my impression that what they did was simply disagree with the result. If you read the language they say we disagree with the result. I think they’ve basically based their conclusion on the findings of fact that have already been made by the referee and reached a different legal conclusion.
“JUSTICE BISTLINE: That’s my interpretation and one I’m willing to live with if you are.
“MR. MARTINDALE: Oh, yes. They know that they need the findings of fact and I’m sure that they simply were relying on the findings already made by the referee.
“JUSTICE BISTLINE: But they changed the ultimate conclusion? “MR. MARTINDALE: Yes.
“JUSTICE HUNTLEY: ... On page 30 the referee makes a finding and I quote: ‘There is no testimony in the record as to whether or not the contacts by the collection agent or other individuals was detrimental to the operation of the employer.’ Now if in fact the Industrial Commission members did not change her findings and all they did was change their conclusions, aren’t we as a reviewing board here bound by her findings and we’re in a position equally with the two commissioners to draw conclusions of law?
“MR. MARTINDALE: Yes, I would agree that her findings of fact are those that you should base your decision upon. “JUSTICE SHEPARD: Mr. Martindale, before you give that point away too quickly, let me ask you this.
“JUSTICE BISTLINE: He already has.
“JUSTICE SHEPARD: He hasn’t as far as I’m concerned Justice Bistline.
“JUSTICE BAKES: Or me.”
Where counsel with commendable candor specifically concedes a point, as was indisputably done here, notwithstanding coaching that they not do so, it will be extremely worrisome to trial lawyers that a majority of the Court rather divinely insists that it has not been done.
Counsel for the employer did not disagree with the Department’s concession and for *772the most part limited its argument to espousing a personal view that an employee’s issuance of insufficient, funds checks is detrimental to the high image the Air National Guard believes that it has and which it wants to retain. Such, of course, was not a matter of record. The record, as first found by the referee, and then noted by Justice Huntley, is devoid of any such evidence. There is no excuse for not reversing and remanding with instructions to enter an award for Mr. Comegys.
There is no excuse for insisting that findings be made by the Commission, and less excuse for intimating (without directing) that the Commission reopen the case for additional testimony.
A proper appellate disposition here would have been to recite, as I have, the clear concise application of the law made by the referee, and our simple holding that the referee’s ultimate conclusion was correct as a matter of law and should be reinstated.
. Unless I have overlooked one, it seems to be the practice of the Industrial Commission to not record a dissenting vote or opinion — which is unlike the Public Utilities Commission. Perhaps it would be helpful to know whether a commissioner did not participate or whether he *771dissented, and have the benefit of that knowledge and the reasons for disagreeing with the other two members.