96-187

No. 96-187

IN THE SUPREME COURT OF THE STATE OF MONTANA

1996

JAMES DEAN MOODY,

Plaintiff and Appellant,

v.

NORTHLAND ROYALTY CO. and

THE DEPARTMENT OF LABOR

& INDUSTRY,

Defendants and Respondents.

APPEAL FROM: District Court of the Ninth Judicial District,

In and for the County of Glacier,

The Honorable Marc G. Buyske, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Jeff R. Lynch, Lynch & Chisholm, Great Falls,

Montana

For Respondent:

Robert J. Emmons, Emmons & Sullivan, Great Falls,

Montana (Northland); Melanie Symons, Department of

Labor & Industry, Helena, Montana

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Submitted on Briefs: October 31, 1996

Decided: January 3, 1997

Filed:

__________________________________________

Clerk

Justice William E. Hunt, Sr. delivered the Opinion of the Court.

 Appellant James Dean Moody (Moody) appeals the order of the

Ninth Judicial District Court, Glacier County, affirming the

decision of the Board of Labor Appeals that Moody be denied

unemployment benefits because his discharge from employment was a

result of his own misconduct.

 We reverse.

 The sole issue for our review is whether Moody was discharged

for misconduct.

 FACTS

 In November 1994, Moody was employed by Northland Royalty

Company (Northland) as a gas plant field operator. Moody received

a monthly salary of $2500.

 On November 19, 1994, Moody informed his supervisor at

Northland, Bill Sheehan, that one of Northlandþs competitors had

offered Moody a job. Sheehan told Moody that they would discuss

the situation on the following Monday, November 21, 1994.

 On Monday morning Moody explained to Sheehan that he would

remain working for Northland if he were given a $100 per month

raise. Moody stated that he needed a decision from Northland by

noon that day. Moody informed Sheehan that if he left Northland he

would take with him Randy Brown, Northlandþs only other field

operator. When Sheehan asked what would happen if Moody did not

get a raise, Moody replied that "they would address that when the

time came and would live with the decision."

 Later Monday morning Sheehan approached Randy Brown,

Northlandþs other field operator. Brown informed Sheehan that he,

like Moody, had been offered a job by the competitor. Sheehan then

offered Brown a raise, which Brown accepted.

 Next, Sheehan drove to the Four Corners Cafe to make some

phone calls. Sheehan had explained to Moody earlier that he would

need to contact Northlandþs Billings office to discuss the

situation before giving Moody an answer. One of the calls Sheehan

made was to Steve Jackson, who had recently expressed his interest

in working for Northland as a field operator. Jackson had

previously been discharged by the same competitor now offering

employment to Moody. Sheehan offered Jackson Moodyþs field

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operator position with Northland, which Jackson accepted.

 While at the Four Corners Cafe that morning, Sheehan received

a call from Moody, who advised Sheehan that he would not be

quitting Northland and that he had already declined the

competitorþs offer. Sheehan told Moody that they would discuss the

matter when Sheehan got back to the field.

 When Sheehan returned to the field shortly after noon, he

asked Moody to join him for a ride in his truck. After they had

driven only a short distance, Moody asked Sheehan what was going

on. Sheehan replied, "Youþre done," and when Moody asked why,

Sheehan informed Moody that it was "about money" and that Jackson

was "cheaper." Moodyþs employment with Northland was terminated.

 Moodyþs starting salary with the competitor would have been

$1800 per month. When Moody informed Sheehan about the

competitorþs employment offer, he did not disclose the competitorþs

salary offer.

 On November 21, 1994, Moody filed for unemployment benefits. 

Initially, the Department of Labor and Industry, Unemployment

Insurance Division, determined that Moody was eligible for

unemployment benefits. After Northland protested this

determination, the Department of Labor and Industry reconsidered

Moodyþs eligibility and issued a redetermination letter which

stated that Moody was not eligible for unemployment benefits. The

benefits examiner concluded that Moody had been the moving party in

the employment separation. The examiner further concluded that

Moodyþs voluntary separation was without good cause attributable

to, or the fault of, Northland, and that therefore Moody was deemed

disqualified to receive unemployment benefits.

 After the redetermination, the matter proceeded to two

separate hearings conducted by the Legal Services Division of the

Department of Labor and Industry. At the first hearing, Appeals

Referee James L. Keil determined that the benefits examiner had

erred in concluding that Moody was the moving party responsible for

his separation from employment. Keil concluded that Moody had been

discharged from employment.

 At the second hearing, on May 9, 1995, the issue before

Appeals Referee David Frazier was whether Moody was qualified or

disqualified from receiving unemployment insurance benefits. 

Specifically, Frazier considered whether or not Moody was

discharged for "misconduct" as that term is defined and interpreted

in the Montana Code Annotated and the Administrative Rules of

Montana. Frazier concluded that Moody had been discharged for

reasons other than "misconduct," and reversed the benefits

examinerþs determination that Moody be disqualified from receiving

unemployment benefits.

 Northland appealed Referee Frazierþs decision to the Board of

Labor Appeals. The Board initially affirmed Frazierþs decision on

June 26, 1995, but then issued another statement on September 20,

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1995, reversing itself and overturning Frazierþs decision.

 On October 18, 1995, Moody submitted a petition for judicial

review to the Ninth Judicial District Court, Glacier County,

requesting that the court reverse the decision of the Board of

Labor Appeals. The District Court affirmed the Board of Labor

Appeals on March 12, 1996. This appeal followed. 

 STANDARD OF REVIEW

 Recently, in Hafner v. Montana Department of Labor and

Industry, No. 96-105 (Mont. Dec. 10, 1996), this Court stated that

"the question of whether conduct rises to the level of þmisconductþ

is a question of law which this Court reviews for correctness." 

Hafner, No. 96-105, slip op. at 6. This standard we enunciated in

Hafner required us to reverse two previous cases, Connolly v.

Montana Bd. of Labor Appeals (1987), 226 Mont. 201, 734 P.2d 1211

and Stine v. Western Federal Savings Bank (1994), 266 Mont. 83, 879

P.2d 53:

Having reviewed this issue [of whether the determination

of "misconduct" is a question of fact or a question of

law] in the present case, we reverse Connolly and Stine

to the extent that they hold that "misconduct" is a

question of fact[.]

Hafner, No. 96-105, slip op. at 6. We explained that

[t]he question of whether an employee has disregarded

standards of behavior, been careless or negligent, or

violated company rules is a question of fact. Whether

those "facts" then constitute "misconduct" involves

interpretation and application of the Administrative

Rules of Montana and is a legal conclusion reviewable by

this Court. 

Hafner, No. 96-105, slip op. at 6-7. Therefore, we must determine

whether the District Courtþs conclusion that Moody was discharged

for "misconduct" is correct.

 DISCUSSION

 Moody concedes that the undisputed facts of this case, stated

in Referee Frazierþs written decision and set forth in the Facts

section of this Opinion, are supported by substantial evidence. 

Moody contends, however, that these facts do not constitute

"misconduct" as that term is defined and interpreted in the Montana

Code Annotated and the Administrative Rules of Montana. We agree.

 Section 39-51-2303, MCA, provides in relevant part:

An individual shall be disqualified for benefits after

being discharged:

(1) for misconduct connected with the individualþs work

or affecting the individualþs employment ....

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Section 39-51-2303(1), MCA. The Administrative Rules of Montana

define "misconduct." Section 24.11.460, ARM, states, in pertinent 

part:

 DISQUALIFICATION FOR MISCONDUCT

(1) Misconduct as used in 39-51-2303, M.C.A., includes,

but is not limited to, the following conduct by a

Claimant:

 (a) Willful or wanton disregard of the rights, 

title, and interest of a fellow employee or the 

employer; . . .

 

Section 24.11.460(1)(a), ARM. Section 24.11.461, ARM, identifies

a number of specific acts which constitute "misconduct." Relevant

for our purposes here is:

(c) Dishonesty related to employment, including but not

limited to, deliberate falsification of company records,

theft, deliberate deception or lying; ....

Section 24.11.461(1)(c), ARM. The Board of Labor Appeals, in its

September 21, 1995 decision finding Moody ineligible for

unemployment benefits stated:

Testimony and evidence before the Board clearly indicate

that the claimant tried to negotiate a raise by giving

his employer an ultimatum requiring a raise within

several hours and by also threatening to leave taking the

only other employee of the company with him. This

conduct was deliberate and was a disregard of the

interests of the employer. That fact is underscored by

the evidence that the claimant was making $2,500.00 per

month with Northland and had only been offered $1,800.00

per month by the competitor. It is found that claimantþs

actions and statements amounted to deception related to

his employment. It is concluded that such action by the

claimant arose [sic] to the level of misconduct according

to 39-51-2303 MCA, and ARM 24.11.461.

We do not agree that Moodyþs actions "arose to the level of

misconduct according to 39-51-2303 MCA, and ARM 24.11.461."

 In the briefs submitted to this Court and in the Boardþs

findings, much was made of Moodyþs failure to disclose to Northland

that his job offer included a monthly salary $700 dollars less than

his existing monthly salary. Both Northland and the Board

characterize this non-disclosure as "dishonesty related to

employment." However, the record reveals that Northland did not

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know, prior to terminating Moodyþs employment, that Moody had

failed to disclose this salary disparity. Therefore, even if this

failure to disclose can be considered a deceptive or dishonest act

as contemplated by the definition of "misconduct," it logically

could not have been a basis for Moodyþs discharge; Moody could not

possibly have been terminated for dishonesty or deception if

Northland did not know prior to termination that Moody was or had

been dishonest or deceitful. 

 Both the Board and Northland have characterized Moodyþs

statement that he "had to have a decision by noon that day" as an

"ultimatum," and his statement that he would "take" Randy Brown

with him if he left Northland as a "threat." They argue that the

statements constitute misconduct. There is no indication in the

record that Moody did not need a decision by noon. The record

establishes that Sheehan was operating under the understanding that

Moody did need a decision by noon. The appeals referees and the

Board did not find, and we cannot locate in the record, any facts

showing that Northland believed prior to terminating Moody that his

"ultimatum" was untrue. We fail to see the negative connotation

given by Northland and the Board to Moodyþs statement that he "had

to have a decision by noon that day." This statement did not

constitute misconduct. 

 Similarly, Northland and the Board have characterized Moodyþs

statement that he would "take" Randy Brown with him if he left

Northland as a "threat." Brown is an adult. There is no evidence

that Moody had any control over Brownþs actions. It is

unreasonable to believe that Moody could have "taken" Brown with

him if Brown himself did not want to leave Northland. Instead, it

is reasonable to believe that Brown could have left Northland of

his own volition; indeed, he had been offered a job by the

competitor, as Sheehan discovered shortly after speaking with

Moody. Further, nothing prevented Northland from taking such steps

as were necessary to counteract Moodyþs "threat" and secure Brownþs

continuing employment, as in fact occurred when Sheehan sought out

Brown and gave him a raise. Moodyþs statement that he would "take"

Brown with him if he left Northland cannot reasonably be considered

a threat to Northlandþs interests, and did not constitute

misconduct. 

 The parties have characterized Moodyþs conduct differently. 

Our review of the undisputed facts establishes that Moody

essentially demanded a raise from his employer, Northland. Moodyþs

particular actions and statements in demanding a raise may well

have been undertaken in order to exert leverage in the bargaining

process. Moody may have been somewhat deceptive. We cannot,

however, conclude that upon the particular facts of this case

Moodyþs conduct fits within the definition of "misconduct"

contemplated by 24.11.460 and 461, ARM, and 39-51-2303, MCA. 

Moreover, and more importantly with respect to the issue in this

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case, we cannot conclude that Northland fired Moody for

"misconduct." When Northland terminated Moodyþs employment, it was

largely unaware of conduct which it only later, after Moody was

terminated, determined was dishonest or deceptive. The court erred

in affirming the incorrect conclusion of the Board of Labor Appeals

that Moody was discharged for misconduct.

 Reversed.

 /S/ WILLIAM E. HUNT, SR.

We Concur:

/S/ J. A. TURNAGE

/S/ CHARLES E. ERDMANN 

/S/ KARLA M. GRAY

/S/ W. WILLIAM LEAPHART

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