No. 12602 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1974 

MARTHA GAUNCE , 

Plaintiff and Appellant, 

BOARD OF LABOR APPEALS, EMPLOYMENT 

SECURITY DIVISION, MONTANA STATE DEPARTMENT 

OF LABOR AND INDUSTRY, and HOLLY SUGAR 

CORPORATION, 

Defendants and Respondents. 

Appeal from: District Court of the Seventh Judicial District, 

Honorable L. C . Gulbrandson, Judge presiding. 

Counsel of Record: 

For Appellant : 

Robert L. Stephens, Jr. argued, Billings, Montana 

For Respondents: 

Moody Brickett argued, Helena, Montana 

Filed : JUL 18 1974 

Submitted: May 22, 1974 

Decided : JUL 1 8 1974 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

This is an appeal from a final judgment adverse to plaintiff from the district court of the seventh judicial district, 

county of Richland, Hon. L. C. Gulbrandson sitting without a 

jury. The case concerns plaintiff's discharge from employment 

by the Holly Sugar Corporation and an adverse ruling on plaintiff's 

appeal to the Montana State Department of Labor and Industry. 

Plaintiff, Martha Gaunce, was discharged from her job 

as a clerk with the Holly Sugar Corporation in Sidney, Montana, 

on September 29, 1971. The reason given for termination was insubordination, refusing to stay overtime to finish work and refusing to break in a part time worker for relief. 

Plaintiff made claim for unemployment compensation benefits on November 7, 1971. An initial determination was made on 

November 19, 1971 by a deputy claims examiner that the charges 

made by the employer on the termination slip were misconduct 

under section 87-106(b)(l), R.C.M. 1947, resulting in partial disqualification for unemployment compensation, for a period of not 

less than two nor more than nine weeks. 

Plaintiff requested a hearing on appeal from the initial 

determination. The Montana Employment Security Commission Appeals 

Tribunal heard testimony on December 16, 1971 in Sidney, and 

rendered its Decision Number 9009 on December 27, 1971, sustaining the claims examiner. 

Plaintiff then appealed to the State Board of Labor Appeals 

and following a hearing de novo the Board sustained the Montana 

Employment Security Commission ruling. The case was then taken 

to the district court and from an adverse judgment of that court, 

plaintiff now appeals to this Court. 

Section 87-108(d), R.C.M. 1947, limits judicial review 

in this language: 
* * * In any judicial proceeding under this 

section, findings of the commission as to the 

facts, if supported by evidence and in the absence 

of fraud, shall be conclusive, and the jurisdiction 

of said court shall be confined to questions of 

law. * * *I1 

In Jordan v. Craighead, 114 Mont. 337, 136 P.2d 526, this 

Court held that whether there is substantial evidence to sustain 

the Commission findings is a question of law. That substantial 

evidence is not a mere scintilla but such relevant evidence as a 

reasonable mind might accept as adequate to support a conclusion. 

The only issue to be reviewed by this Court then is: Is 

there "substantial evidence" to support the findings of the Board 

and the district court? If so, does this constitute "misconduct"? 

Section 87-106, R.C.M. 1947, limits benefits to persons 

discharged : 

"(1) For misconduct connected with his work, or 

affecting his employment * * *." 

Plaintiff makes an extended argument as to what charges 

of misconduct are legally before this Court. We need not concern 

ourselves with other than the findings and conclusions of the 

Board of Labor Appeals after its hearing de novo and the findings 

of the district court. Section 87-108(a), R.C.M. 1947. From 

the very inception of this matter the termination slip designated 

insubordination, refusing to work overtime and refusing to break 

in a part time worker for relief. The Board of Labor Appeals in 

more detail and including related matters found the same three 

areas of fact to be sustained. The district court in its finding of fact No. I11 found there was a failure to cooperate with 

her employer in training a new employee; which finding in respect 

to plaintiff's attitude would imply insubordination. Finding of 

fact No. IV and No. V fairly find refusal to work overtime. It 

would be fair to conclude that refusal to train a new employee 

and refusal to work overtime are properly before this Court for 
review inasmuch as proof of either would constitute at least an 

insubordinate attitude. 

Several cases have been cited to us demonstrating misconduct which include refusal to work overtime: Davis v. Unemployment Comp. Bd. of Review, 187 Pa.Super. 116, 144 A.2d 452; Wilsey 

v. Unemployment Compensation Bd. of Rev., 169 Pa.Super. 368, 82 

A.2d 503; Sampson v. Doyal, (La. 1968), 215 So.2d 149; and refusal 

to train a fellow worker: Otto v. Unemployment Compensation Bd. 

of Review, 189 Pa.Super. 489, 151 A.2d 795. 

Both parties agree the definition of misconduct in Boynton 

Cab Co. v. Neubeck, 237 Wis. 249, 296 N.W. 636 is accurate. That 

definition is summarized in the Anno. at 26 ALR3d 1356, 1359 as: 

"(1) a deliberate, wilful, or wanton disregard 

of an employer's interests or of the standards 

of behavior which he has a right to expect of 

his employee, or (2) carelessness or negligence 

of such a degree or recurrence as to manifest 

equal culpability, wrongful intent, or evil 

design. " 

We therefore conclude the acts complained of here, if 

substantiated, would constitute simple misconduct under section 

87-106, R.C.M. 1947. 

Plaintiff extracts testimony from the record and in an 

exercise in semantics demonstrates that Mr. Nigro, plaintiff's 

supervisor, never unequivocally asked plaintiff to train the new 

employee and she never really refused, but did not actively participate in the training. This kind of reasoning would be proper 

before the Board but here we are not allowed to examine the evidence in the light of it being susceptible to different inferences 

or logic or whether plaintiff remaining silent or merely shaking 

her head during a discussion with management meant anything at all. 

It is also clear that even where the evidence is not in 

substantial dispute yet if different inferences may be drawn from 

such evidence it is within the proper province of the Commission 
to determine which inferences should be drawn and inferences so 

drawn are conclusive and binding on the reviewing court. 

A careful examination of the entire record reveals the 

nearing was fairly and informally held. Plaintiff was allowed 

to answer allegations and cross-examine during the testimony of 

each witness and/or give additional clarifying information. There 

was unequivocal testimony by Mr. Murdock of the Holly Sugar Corporation as to the refusal to train the new girl and the refusal 

to work overtime. Mr. Nigro was not as forceful, but his testimony was to the same effect. 

Plaintiff denies some of the allegations and admits but 

excuses others on the basis of ''this was not my job" or in regard 

to training "since I had been told by Mr. Smith, I told her to go 

see Mr. Smith." However, during Mr. Murdock's testimony she did 

admit she refused his request to train the new employee to operate 

the addressograph-multigraph machine. These are but a few examples 

to demonstrate that the record reviewed as a whole, irregardless 

of conflicting testimony, does contain sufficient competent and 

substantial evidence if believed by the Board to sustain the findings. 

The judgment of 

We Concur: 

-. - .- - , up.-...---------------- 

Justice 

'Chief Justice