SLATER v EMPLOYMENT SECURITY DIV
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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: Decided: Filed: - 6.8' jj . December 8, 1983 February 9, 1984 , . , .. p> . t Clerk -- Mr. Justice L.C. Court. Gulbrandson delivered the Opinion of the Defendant Freddee Wessell appeals from the judgment of the District Court of the Thirteenth Judicial District, Yellowstone County, disqualifying her unemployment benefits by from receipt of 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 administrative court of a Board of Labor Appeals 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.) reasons stated below, we For the 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. of Hemingway's manager. Slaters and his wife, Else, works During Wessell's had expressed in proclivity the for five months as the on the job, the presence drinking her of occasional customers while on use and the her job. of disagree over whether she received job foul alleged She reprimanded in May of 1982 for these indiscretions. parties floor some dissatisfaction with her performance, particularly language William Slater is the owner was The 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 Slater. to the attention of William 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 When she arrived, she saw that a fellow shift July 20. employee was already covering for her. to discuss the matter, so Wessell went directly executive chef, Bill Gleason. had been fired. brief Else was not present to the She asked Gleason whether she He informed her that he did not know. discussion then took place, during which A Wessell indicated that she really didn't care if she was scheduled for work or not. poor. At this point, Gleason maintains that Wessell used a four-letter word. home Gleason suggested that her attitude was then. You He then told her that "you should just go just figure you are done, However, he never told her that she was fired. go home." 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 application, misconduct. Slater alleging that Misconduct disqualification from responded to she had been is a receipt notice of her terminated for sufficient of benefits. ground for Section 39-51-2303, A c l a i m s examiner MCA. 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 . the decision. hearing A was held before a p p e a l s r e f e r e e on September 23, 1982. and testified Wessell allegations of had Wessell a t a Department The S l a t e r s , G l e a s o n that time concerning the The misconduct. been S l a t t e r appealed referee concluded that 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 . further A Appeals. appeal Following findings, a conclusions S l a t e r s appealed taken was hearing, and to the decision t h e Board the Board of the t r a n s c r i p t of affirmed the The Court a r g u i n g t h a t t h e Board MCA, 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 for misconduct, concluded and before After reviewing and Court proceedings Labor referee. 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 . the of to District decision p u r s u a n t t o S e c t i o n 39-51-2410, Board the t h a t Wessell disqualified her referee had been fired 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 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 . relevant standard 39-51-2410(5), 39-51-2406 MCA: of review "In is any t h r o u g h 39-51-2410, set judicial forth in the The Section proceeding under 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 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 . " of said 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 b e e n p r e j -d i c e d -b e c --------------- u - - - - - - - - a u s e t h e 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 reliable, probative, ......................... and substantial 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 support the find Board's substantial, credible determination that evidence to Wessell was notified the discharged for reasons other than misconduct. The record reveals that Wessell 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 \ / / Justice We concur: %48.rN,,o4 Chief Justice
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