No. 83-284 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1983 

DICK IRVIN, INC., A Montana corp., 

Petitioner and Respondent, 

MONTANA DEPARTMENT OF LABOR, et al., 

and VEKg 0. GREENWOOD, 

Respondents and Appellants. 

APPEAL FROM: District Court of the Ninth Judicial District, 

In and for the County of Toole, 

The Honorable R. D. McPhillips, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

D. Michael Eakin, Montana Legal Services, 

Billings, Montana 

R. Scott Currey, Dept. of Labor, Helena, Montana 

For Respondent : 

John H. Grant; Jackson, Oitzinger & Murdo, Helena, 

Montana 

Submitted on Briefs: September 2, 1983 

Decided: December 30, 1983 

Filed: UkC $ J !gtj'$ 

- .- 

Clerk 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of 

the Court. 

Vern Greenwood appea.1~ the Toole County District 

Court's reversal of the Board of Labor Appeals of the Montana 

Department of Labor and Industry determination that he was 

entitled to unemployment henefits after his discharge from 

Dick Irvin, Inc., respondent. 

On March 26, 1-981, Dick Irvin, Inc., hired. Vern 

Greenwood as a truck driver. On May 29, 1982, Irvin d.ischarged Greenwood. Several incidents led. to his termination. 

First, in April 1981, on a haul to California, 

Greenwood attempted to drive to Big Timber to meet his wife. 

At Moore, his truck broke down causing a delay in the delivery of the load. There is a dispute as to whether Irvin had 

given specific routing instructions to Greenwood. Further, 

Greenwood contends that any deviation from the normal route 

wou1.d have only been sixty-one miles. He was instructed not 

to take such side trips aga.in, and he obeyed. 

Second, Greenwood was involved in an accident in Texas 

where a car ran into the lower right front of his tractor as 

he was turning right. Greenwood asserts that he was signalling for the turn, and the car was travelinu completely on 

the shoulder of the road attempting to pass him on the right. 

Greenwood was issued a citation, but it is unclear what the 

violation was. He also claims that he sent a notarized 

statement of an eyewitness to the accident to Irvin, but it 

is not part of the record. Irvin blames Greenwood for the 

accident because he was issued the citation and Irvin's 

insurance carrier paid for the damage to the other vehicle. 

Third, on one of Greenwood's hauls the wheel-, tire and 

huh came off the axle due to lack of oil in the hub of the 
wheel. Greenwood accepts partial responsibility for this as 

he failed to check the oil level on this occasion. However, 

he argues that Irvin knew the truck was due for service at 

this time but dispatched him on another delivery. 

Fourth, while on a haul into Louisiana, Greenwood 

needed certain permits to pass through Texas with an oversize 

load. Apparently, he would have violated Texas law by traveling without the permits. Thu-s, he waited over the weekend 

to obta.in them at the border instead of traveling into Texas 

to pick them up at New Boston as instructed by Mark Cole of 

the Irvin office. This caused a late delivery in Louisiana. 

Fifth, while he and a forklift driver were loading his 

truck, the forklift operator drove the lift over a piece of 

sideboard and punched a hole therein. Greenwood claims that 

the high winds blowing at the time prevented the sidehoard 

from standing up so he simply laid it on the deck of the 

truck. Irvin replaced the sideboard with a new piece of 

plywood. 

Finally, the last incident prior to Greenwood's termination was an accident in Wyoming. It appears that while 

turning a corner in a Casper suburb, the underside of the 

trailer was pulled across the front or hood of another vehicle causing damage to the vehicle. No citations were issued 

for the accident, although Irvin's insurance carrier again 

paid for the damaged vehicle. 

In May 1982 Greenwood was discharged and, according to 

Greenwood, this occurred upon the advice of Irvin's insurance 

company. He then applied for unemployment benefits. Irvin 

challenged this application asserting that Greenwood was 

ineligible because he had been discharged for misconduct. On 

June 14, Greenwood was awarded benefits and Irvin appealed 
this decision to the appeals section of the Employment Securities Division of the Department of Labor and Industry. A 

telephone hearing was conducted and the hearings officer 

found that Greenwood was ineligible for benefits due to 

discharge for misconduct. 

Greenwood then appealed to the Board of Labor Appeals, 

and another telephone hearing was conducted. The Board found 

in favor of Greenwood and reversed the decision of the appeals section. In accordance with section 39-51.-2410, MCA, 

Lrvin filed a petition for judicial review of the Board's 

decision. A hearing was held on April 21, 1983, in the Ninth 

Judicial District, Honorable R. D. McPhillips presiding, 

after which the decision of the Board was reversed. Essentially, the District Court found that Greenwood's actions 

were within the definition of misconduct and, according to 

section 39-51-2403, MCA, sufficient to deny benefits. From 

this decision Greenwood appeals and raises three issues for 

our consideration. 

1. Did the District Court err by making findings of 

fact different than those of the Board of Labor Appeals? 

2. Is there substantial evidence supporting the 

Board's findings? 

3. Did the District Court err by determining that the 

acts of appellant are within the statutory definition of 

misconduct to deny unemployment benefits? 

First, Greenwood asserts that the District. Court erred 

by making findings of fact different than those made by the 

Board. The District Court must first determine if substantial evidence supports the Board's factual findings, and, if 

so, those facts are conclusive and the District Court jurisdiction is confined to questions of law. If the Court 
determines no such substantial evidence exists, it can make 

its own findings. This deterpination was never made; thus, 

the District Court was incorrect in making its own findings. 

Irvin simply contends that the District Court accepted 

the findings of the Board. In essence, the District Court 

did not ma.ke its own factual findings. 

The District Court's review of rulings made by the 

Board of Labor Appeals is strictly governed. by statute and 

case 1.aw. Section 39-51-2410 (5) , MCA, outlines the scope of 

judicial review of Board decisions. This su.bsection read.s: 

"(5) In any judicial proceeding under 

39-51-2406 through 39-51-2410, the findings of the board 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. Such 

action and the questions so certified 

shall be heard in a summary manner and 

shall be given precedence over all other 

civil cases except cases arising under 

the workers' compensation law of this 

state . '' 

This Court has enllnciateci and. further defined this 

standard on several occasions. In Kirby Co. of Bozeman, Inc. 

v. Employment Security Division (Mont. 1980), 614 P.2d 1040, 

37 St-Rep. 1255, we were called upon to determine whether the 

District Court erred by entering findings of fact different 

from those ma.de by the Board of Labor Appeals. Justice 

Ra.rrison, writing for a unanimous court explained that, 

"Under the plain meaning of this statute 

and the case law interpreting it, the 

District Court must treat the findings of 

the Board as conclusive, if the findings 

are supported by the evidence and in the 

absence of fraud. Noone v. Reeder 

(1968), 151 Mont. 248, 252, 441 P.2d 309. 

The District Court should, therefore, 

limit its review of the findings of the 

Board to a consideration of whether they 

are supported by the evidence. The 

District Court should not enter findings 

different from the Board's without first 
determining the Board's findings are not 

supported by the evidence." 614 P.2d at 

1042-1043. 

Although finding that such procedural. error did not require 

reversal since the District Court affirmed the decision of 

the Board, this Court held that under section 39-51-2410, 

MCA, it is not proper for the District Court to enter findings different from those determined by the Board without 

first determi.ning that the Board's find.ings are not supported 

by the evidence. See also, Jordan v. Craighead et al. 

(1943), 114 Mont. 337, 136 P.2d 526. 

In this case the District Court found: 

(1) April 1981, Greenwood was deliberately out of 

route; 

(2) December 1981, Greenwood refused to follow instructions to go sixty miles across the Texas border to New Boston 

to pick up oversize load. permits, and instead sat at the 

border for twenty-four hours waiting for a weigh station to 

open ; 

(3) December 15, 1.981, Greenwood rammed a car in Houston, Texas, and was found I00 percent at fault; 

(4) March 23, 1982, Greenwood neglected to check the 

hub oil level and, as a result of the hub being low on oil, 

lost a wheel; 

(5) Greenwood punched a hole in the sideboard of a 

trailer while loading it in Iowa; 

(6) May 1982, in Wyoming, Greenwood again crashed into 

a car and was found 100 percent at fault; 

(7) Greenwood was constantly speeding; and 

(8) Greenwood was constantly insubordinate. 

The Board's findings were as follows: 
". . . The evidence before the Board of 

Labor Appeals establishes that during the 

period. the claimant was employed, he was 

involved in two accidents driving a 

vehicle of the employer. In addition, on 

one occasion, the claimant deviated from 

a scheduled route, however, he was allowed to continue his employment after 

that incident and the claimant did not 

violate the employer's policy regarding 

scheduled routes thereafter. On the 

occasion which led to the termination of 

the claimant's employment, the claimant 

was involved ir, an accident in which he 

struck a car while making a turn in 

Casper, Wyoming. Although the incidents 

when considered together or even individually are sufficient basis to justify the 

employer making the decision to terminate 

the claimant ' s employment, his conduct 

was not such as to lead to a conclusion 

that the claimant had a deliberate disregard for the interest of the employer or 

that he acted in a willful or wanton 

manner in connection with the operation 

of the employer's vehicle." 

We find that the District Court's findings were considerably different than those made by the Board, and the District Court entered its findings without a determination of 

whether the Board's findings were supported by substantial 

evidence. This is completely contrary to the stands-rd of 

review of Board decisions discussed above and clearly 

improper. 

Further, the findings of the Board were supported by 

the evidence but were completely inadequate for the District 

Court to review the Board's decision. Thus, we must reverse 

and remand the case to the District Court with directions to 

remand to the Board of Labor Appeals for entry of complete 

findings fact reqarding all alleged misconduct. Jrvin discharged Greenwood on the basis of six specific incidents of alleged misconduct. The Board on1.y mentioned 

three such incidents. The Board must make complete findings 

regarding the nature of each incident so that the District 
Court can adequately review the decision of the Board. This 

prevents the District Court from making its own fi~dings, 

adhering to the standard of review for Roard decisions, and 

provides a proper basis for the District Court to review the 

decision of the Roard. 

The other issues raised by appellant become moot as new 

findings of fact will be entered. 

The order and judgment of the District Court is vacated. This cause is remanded to the District Court with directions to remand to the Board of Labor for entry of findings 

on all claims of misconduct alleged by the employer together 

with entry of an appropriate order. 

~~4!.% ,.& Chief Justlce 

We concur: 

Justices 
Mr. Justice John C. Sheehy, dissenting: 

I dissent. The majority opinion contains an inadequa.te 

examination of the record in this case, and that ina.dequacy 

has lead the court into error. 

Here are the facts from the record as I find them: 

On June 2, 1982, Vern Greenwood applied to the Department of Labor and Industry, Unemployment Insurance Division, 

for unemployment insurance benefits following the termination 

of his employment by Dick Irvin, Inc. 

On June 4, 1982, Dick Irvin, Inc., objected in writing 

to the payment of unemployment insurance benefits to 

Greenwood, listing the following grounds: 

1. Greenwood was dispatched from Shelby, Montana, to 

Los Angeles, California, but went off-route to Billings, 

using additional mileage of 409 miles. 

2. Greenwood failed to call in as he was told to do 

regarding permits for travel with an oversized load in Texas 

and the company incurred $976 for delivery a day late. 

3. An accident in. Houston, where Greenwood ran into a 

car. 

4. The loss of a front wheel on the truck because 

Greenwood failed to check the oil level in the hub. 

5. Greenwood poked a hole in the sideboard of a trailer 

through his neglect through the use of a forklift, and bent 

the back of the trailer, hitting a dock. 

These are the five and only reasons assigned by Dick 

Irvin, Inc. in its letter of June 4, 1982, obiecting to the 

payment of benefits. No claim was made in that letter by 

Dick Irvin, Inc., that Greenwood was discharged because of an 

accident which occurred in Casper, Wyoming. 

Because Dick Irvin, Inc., had filed an objection to 

payment of the benefits, Greenwood's claim was assigned to a 
heaxing examiner of the Department of Labor for determination 

pursuant to section 39-51-2402, MCA. That examiner, P. 

Hyatt, determined on June 14, 1982 that Greenwood was not 

disqualified. The examiner's findings stated: "YOU were 

discharged because it is contended that you caused damage to 

property owned by the employer. The evidence in the record 

does not establish your actions to have been willful or 

intentional. You were discharged for reasons other than 

misconduct connected with the work." 

On that basis, Greenwood was entitled to his unemployment insurance benefits. 

However, Dick Irvin, Inc., filed a protest on June 1, 

1982. A redetermination was refused on June 22, 1982, because the Department "had received no additional information 

on which to base the redetermination." 

Dick Irvin, Inc., appealed from the determination made 

under section 39-51-2402, supra. Such an appeal goes to an 

appeals referee under the provisions of section 39-51-2403, 

MCA. The appeals referee was Rodney G. Stebbins. He conducted a telephone hearing on June 30, 1982, and based on 

that hearing made the following findings of fact: 

"The claimant was employed as a truck driver by the 

above-named employer for about 14 months. He was 

paid on the basis of 16 1/2 cents per mile. 

"Without authorization on April 19, 1981, he drove 

the truck several hundred miles out of the way to 

visit his wife. During the course of his employment, he was involved in two accidents in which he 

was found to be at fault and which resulted in 

$2,650 in damages. The last accident occurred on 

May 23, 1982. As the result of the above infractions, he was discharged on May 29, 1982." 

Note that Stebbins included in his findings the accident 

which occurred in Casper, Wyoming, that on May 23, 1982. 

Based on his findings, Stebbins found that Greenwood's 
"conduct showed a deliberate disregard of the employer s 

interests and of the standards of behavior the employer had a 

right to expect of him as an employee." Therefore, Stebbins 

held that Greenwood was discharged for misconduct connected 

with his work which directly affected his employment. The 

appeals referee therefore made a finding in favor of the 

employer, and against Greenwood, but upon only three grounds: 

(1) The driving off-route, (2) the accident in Texas, and 

(3) the accident in Casper, Wyoming. 

Greenwood appealed on July 2, 1982, from the decision of 

the appeals referee. That appeal went to the Board of Labor 

Appeals under section 39-51-2404, MCA. 

The Board of Labor Appeals is a quasi-judicial board. 

Section 39-51-310, MCA. As such, it may consider not only 

the record made before the appeals referee but new evidence 

produced at the board hearing. City of Billings v. Board of 

Labor Appeals (Mont. 1983), P.2d - , 40 St.Rep. 648, 

651. The Board of Labor Appeals conducted a hearing at which 

Greenwood attended personally, and Dick Irvin, Inc., participated through the telephone. 

After the hearing, the Board of Labor Appeals made its 

decision on August 30, 1982. In that decision, the Board of 

Labor Appeals decided not to expand on the grounds on which 

the appeals referee had decided. Instead, it took the three 

grounds on which the appeals referee had made its decision, 

and refuted the same as reported in the majority opinion. It 

was not necessary for the Board of Labor Appeals to go into 

other matters because the issues before it on the reasons for 

termination of Greenwood were limited by the appeals referee 

in his decision. 
Notably, the effect of the majority decision now is to 

tell the Board of Labor Appeals to go beyond what was presented to it in the appeal from the appeals referee, and make 

factual findings on other issues not decided by the appeals 

referee, including one issue, the Casper, Wyoming, accident 

that was not raised by the employer in his initial report to 

the Unemployment Compensation Division. 

Dick Irvin, Inc., appealed the adverse decision of the 

Board of Labor Appeals to the District Court. In contrast to 

the broad appellate power of the Board of Labor Appeals 

provided in section 39-51-2404, MCA, the appellate power of 

the District Court and of this Court, is severely limited 

under section 39-51-2410, MCA, when considering appeals from 

the Board of Labor Appeals. The latter section provides that 

the findings of the Board as to facts, if supported by the 

evidence and in the absence of fraud are conclusive, and the 

jurisdiction of the District Court is confined to questions 

of law. 

In my opinion, the findings of the Board of Labor Appeals as to the facts, that is the three issues decided by 

the Board of Labor Appeals, are supported by the evidence, 

and neither the District Court nor this Court has any power 

to overturn them. The jurisdiction of the District Court is 

limited in this case to questions of law, and it exceeded its 

jurisdiction in this case when it purported to go beyond the 

factual issues that had been presented to the Board of Labor 

Appeals through the appellate process in the Department of 

Labor. 

In like manner, now that the appeal has reached this 

Court, under section 39-51-2410, MCA, where we are reviewing 

what was done in the District Court, we are likewise limited 
to the findings of the Board as to facts, and if they are 

supported by the evidence, they are conclusive and our jurisdiction is confined to questions of law. Section 39-51-2410. 

The majority opinion does not discuss, although it is 

crucial to the case, what must be established by an employer 

who seeks to prevent a terminated employee from receiving 

unemployment compensation benefits. Here it is claimed that 

Greenwood was disqualified from benefits under section 

39-51-2303, MCA, in that he had been discharged for misconduct connected with his work or a.ffecting his employment. 

This Court has defined wha-t is meant by such misconduct in 

Gaunce v. Board of Labor Appeals (1974), 164 Mont. 445, 524 

P.2d 1108. It is: 

"(1) A deliberate, willful or wanton disregard of 

an employer's interests or of the standards of 

behavior which he has a right to expect of his 

employer, or 

"(2) Carelessness or negligence of such a degree 

or recurrence as to manifest equal culpability, 

wrongful intent, or evil design." 

Instead of determining that the Board of Labor Appeals 

should now look at issues which were not presented to it by 

the appeals referee, this Court should examine the findings 

of fact made by the Board and determine as a question of law 

whether they constitute misconduct as we have defined it in 

Gaunce . 

The facts on the whole record are, with respect to those 

findings, that Greenwood went off-route more than a year 

prior to his termination by driving to Billings. That he had 

two traffic accidents j-n the handling of his truck, one of 

which was not ascribed a.s a. reason for his termination by the 

employer. On the whole record, the Board of Labor Appeals 

was correct in determining that as a matter of law the 
grounds used by the appeals referee to refuse benefits did 

not constitute misconduct in that there is no showing of 

deliberateness, willfulness, or wantonness in the a.cts of the 

employee. I find that as a matter of law. Therefore, I 

would reverse the District Court, and reinstate the findings 

of the Board of Labor Appeals, without any further folderol.