No. 89-539
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
VIRGINIA WARD, d/b/a YOUR GOOD LOOKS,
Petitioner and Respondent,
v.
JANELLE JOHNSON and
THE BOARD OF LABOR APPEALS,
Respondents and Appellants.
"fi r4&rq
APPEAL FROM: District Court of the Sixth Judicial District,
In and for the County of Park,
The Honorable Byron L. Robb, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Eula Compton, Bozeman, Montana (Johnson)
William E. OILeary, Helena, Montana (Board of
Labor Appeals)
For Respondent:
William F. Frazier; Swandal & Douglas, Livingston,
Montana
Submitted on Briefs: March 15, 1990
Decided: April 10, 1990
0
Filed:
Justice John Conway Harrison delivered the Opinion of the Court.
This case presents an appeal from a decision of the Sixth
Judicial District, Park County, Montana, wherein the District Court
reversed a Board of Labor Appeals' decision that affirmed
appellant's award of unemployment benefits. We reverse the
District Court and affirm the Board of Labor Appeals' decision.
The sole issue on appeal is whether the District Court erred
in finding that the Board of Labor Appeals' decision was not based
on substantial evidence.
On September 2, 1987, Virginia Ward, owner of Your Good Looks
clothing store, fired Janelle Johnson, who had worked as a store
clerk for nearly five years. On her application for unemployment
benefits, Johnson alleged that Ward fired her when Ward learned
that Johnson had sold her car to someone who had offered her more
money than Ward or Ward's brother. Ward responded by alleging that
she had fired Johnson because of employee misconduct and listed
seven reasons justifying Johnson's termination. Briefly, the
reasons given were:
1. Tardiness.
2. Untidiness.
3. Working crossword puzzles at work (this reason was
apparently dropped at the hearing).
4. Taking cash out of the till.
5. Leaving the store unattended.
6. Personal'phone calls made on the business phone.
7. Charging clothing after being told not to charge.
2
Initially, Johnson was denied unemployment benefits.
Johnson filed for a redetermination on October 23, 1987. In
her redetermination statement she responded to Ward's stated
reasons for terminating her. As to each of Ward's allegations,
Johnson explained how her actions were justified, either through
express permission by Ward or by circumstances requiring Johnson
to leave the store unattended at times. Ward also filed a
statement. On November 3, 1987, the Department of Labor reversed
the denial of benefits and found that Johnson's alleged misconduct
did not amount to an intentional breach of her obligation to her
employer, Ward.
Ward appealed the redetermination and a hearings referee
conducted a telephone hearing on November 30, 1987. After
receiving testimony from Ward, Johnson and several witnesses, the
hearings referee determined that Ward fired Johnson for reasons
other than misconduct, as misconduct is defined in unemployment
law. The referee found that Johnson's alleged misconduct was
explained by agreements she had with Ward. Also since Johnson
generally operated the store alone, she necessarily had to leave
the store unattended for short periods of time to get proper
change, or to get lunch. Further, the referee found that 'I [t]he
timing of the discharge may have been influenced by the automobile
transaction."
Ward appealed the referee's decision to the Board of Labor
Appeals. After the Board reviewed the record and heard sworn
testimony from Ward, it ruled that it found no substantial evidence
to warrant modification or reversal of the referee's decision.
Further, the Board adopted the Findings of Fact and Decision of the
appeals referee. . Thereafter, Ward appealed the Board of Labor
Appeals decision to the District Court which reversed and vacated
the Board's decision. Essentially Ward had challenged the appeals
referee's findings and decision. This appeal followed.
In its opinion the District Court acknowledged that the
findings of the Board (or appeals referee) are conclusive if
supported by substantial evidence. However, the District Court
found the referee's findings to be unsupported by substantial
evidence and entered its own findings which were contrary to or
inconsistent with the referee's findings. Appellant argues that
substantial evidence supported the Board and referee's decision
and that the District Court erred in concluding otherwise. We
agree.
Montana law limits the scope of judicial review of a Board of
Labor Appeals1 decision. Section 39-51-2410(5), MCA, provides in
pertinent part:
In any judicial proceeding under 5 39-51-2406
through 39-51-2410, the findings of the board
as to facts, if supported by evidence and in
absence of fraud, shall be conclusive and the
jurisdiction of said court shall be confined
to questions of law.
Further, in reference to § 39-51-2410(5), MCA, this Court has
held that
:'[s]upported by the evidence" means supported
by substantial evidence, which is ''something
more than a scintilla of evidence, but may be
less than a preponderance of evidence."
(Citations omitted. )
Johnson v. Montana Dept. of Labor & Industry (Mont. 1989) , 783 P.2d
As well, this Court has stated the following regarding
application of 5 39-51-2410(5), MCA:
The court is not permitted to balance
conflicting evidence in support of and in
opposition to the Commission's findings of
fact, nor to determine which is the more
substantial evidence, nor to consider where
the preponderance of 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 Commissionls findings of fact as
provided by statute.
Connolly v. Montana Bd. of Labor Appeals (1987), 226 Mont. 201,
205, 734 P.2d 1211, 1214, quoting Noone v. Reeder (1968), 151 Mont.
248, 252, 411 P.2d 309, 312. Thus, the reviewing court must decide
whether substantial evidence supports the Board's decision and not
whether on the same evidence it would have arrived at the same
conclusion.
We have reviewed the record and find that while the
conflicting evidence is susceptible of more than one
interpretation, substantial evidence exists to support the
referee's findings and decision. The record contains Johnson's
explanations of her alleged misconduct. Further, Ward testified
that although she had warned Johnson, she had never informed
Johnson that she would be terminated if the alleged misconduct
continued. Ward also testified that Johnson's poor performance had
been occurring for a year and one half prior to her termination.
Additionally, the record establishes that Ward and her brother had
been negotiating with Johnson to purchase Johnsonls car and that
Ward fired Johnson the same day she learned Johnson had sold the
car to another.
Much of the Johnson's testimony conflicted with Ward's
testimony. But, nothing in the record suggests that Johnson's
testimony was inherently incredible. In short, Johnson's version
of the termination is supported in the record and the District
Court erred in holding otherwise.
Respondent also argues that the appeals referee allowed into
the record inadmissible evidence, mostly hearsay. Section 39-51-
2407, MCA, provides in pertinent part:
[tlhe conduct of hearings and appeals shall be
in accordance with regulations prescribed by
the department or the board for determining
the rights of the parties, whether or not such
regulations conform to common law or statutory
rules of evidence and other technical rules or
procedure.
Respondent cites us no department regulations in support of her
contention which we therefore reject.
We reverse the District Court and reinstate the Board of Labor
Appeals1 decision.
We concur:
-.--.