Blueshield v. Job Service North Dakota

392 N.W.2d 70, 1986 N.D. LEXIS 384

• Court: North Dakota Supreme Court
• Decided: July 30, 1986
• Docket: Civ. 11120
• Status: Published

Opinions

ERICKSTAD, Chief Justice.

Martin Blueshield appeals from a district court order which affirmed a decision of Job Service North Dakota, denying Bluesh-ield unemployment benefits because he was discharged from his previous employment for reasons constituting misconduct under Section 52-06-02(2), N.D.C.C. We affirm.

Blueshield worked as an assembler for the Devils Lake Sioux Manufacturing Corporation for a period of about two and one-half years. Testimony during the administrative hearing indicated that Bluesh-ield worked at a “seam machine” which was separated from other similar machines by about five to seven feet.

On March 14, 1985, Blueshield “had a disagreement with a co-worker and used force and pushed this other employee.” The disagreement between Blueshield and the other employee, Ephraim Hill, Jr., developed when Hill made some remarks when walking through Blueshield’s work area.¹ The exact nature of the remarks is in dispute.² Blueshield responded to these remarks by pushing Hill. Hill did not push back but instead reported the incident to his supervisor. The amount of force used and the number of pushes by Blueshield is disputed and not clearly resolved by the findings made by Job Service.

Rule 37 of the Hourly Employee’s Handbook of Devils Lake Sioux Manufacturing Corporation provides for automatic termination of employment when an employee uses physical force against another employee. In accordance with this rule, Blueshield was discharged from his employment.

Following his discharge, Blueshield applied for unemployment compensation benefits with Job Service North Dakota. This request was denied. Blueshield appealed the decision and requested a hearing which was subsequently held before an appeals referee on April 25, 1985. •

During the hearing, Blueshield stated that he pushed Hill in response to Hill’s harassment. In its findings, Job Service acknowledged that Blueshield felt “he was being harassed” and that he “may have been provoked,” but found that “other recourse was available for the claimant rather than the use of physical force.” Job Service further concluded that “the employer has established the claimant acted in a wilful manner and in substantial disregard of their interests. Therefore, it can only be concluded the claimant was discharged ... for a reason that would constitute misconduct. Accordingly, the claimant is not entitled to job insurance benefits....”

The sole issue presented to our Court on appeal is whether or not the single incident of Blueshield physically pushing a co-worker constitutes “misconduct” under Section 52-06-02(2), N.D.C.C., which provides:

“Disqualification for benefits. An individual shall be disqualified for benefits:

* # * * # *

“2. For the week in which he has been discharged for misconduct in connection with his most recent employment and thereafter until such time as he:

a. Can demonstrate that he has earned remuneration for personal services in employment equivalent to at least ten times his weekly benefit amount as determined under section 52-06-04; and

b. Has not left his most recent employment under disqualifying circumstances.

“For the purpose of this subsection, ‘most recent employment’ means employment with any employer for whom the claimant last worked and was discharged for misconduct in connection with his employment or with any employer, in insured work, for whom the claimant last worked and earned wages equal to or exceeding ten times his weekly benefit amount.” Section 52-06-02(2), N.D.C.C.

The term “misconduct” is not defined in the North Dakota Unemployment Compensation statutes. Olson v. Job Service North Dakota, 379 N.W.2d 285, 287 (N.D. 1985). It is established in North Dakota that “misconduct”:

“ ‘... is limited to conduct evincing such wilful or wanton disregard of an employer’s interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inad-vertencies or ordinary negligence in isolated instances, or good faith errors in judgment or discretion are not to be deemed “misconduct” within the meaning of the statute.’ ”

Perske v. Job Service North Dakota, 336 N.W.2d 146, 148-49 (N.D.1983) quoting Boynton Cab Co. v. Neubeck, 237 Wis. 249, 296 N.W. 636, 640 (1941); Olson v. Job Service North Dakota, 379 N.W.2d at 287; Schadler v. Job Service North Dakota, 361 N.W.2d 254, 256 (N.D.1985).

The factual basis of an administrative order is reviewed in a limited manner by considering the following questions: 1) Are the findings of fact supported by preponderance of the evidence? 2) Are the conclusions of law sustained by the findings of facts? 3) Is the agency decision supported by the conclusions of law? Perske v. Job Service North Dakota, 336 N.W.2d at 148. We have said when we review a decision of an administrative agency:

1. We do not make independent findings of fact or substitute our judgment for that of the agency, but determine only whether a reasoning mind could have reasonably determined that the factual conclusions were supported by the weight of the evidence.

2. We exercise restraint when we review administrative agency findings.

3. It is not the function of the judiciary to act as a super board when reviewing administrative agency determinations.

4. We will not substitute our judgment for that of qualified experts in the administrative agencies.

Sonterre v. Job Service North Dakota, 379 N.W.2d 281, 283-84 (N.D.1985); Matter of Boschee, 347 N.W.2d 331, 335 (N.D.1984).

Blueshield does not question that the findings of fact made by Job Service are supported by a preponderance of the evidence. Rather, Blueshield “asserts that the agency’s decision is not properly supported by law.” Blueshield further argues that the determination of whether or not an employee’s conduct is “misconduct” is a question of law, and as such, this Court is free to exercise its independent judgment.

We agree with Blueshield that administrative agency decisions on questions of law are fully reviewable by this Court. Walter v. North Dakota State Highway Commissioner, 391 N.W.2d 155, 159 (N.D. 1986); Appeal of Dickinson Nursing Center, 353 N.W.2d 754, 757-58 (N.D.1984); Grant Farmers Mut. v. State by Conrad, 347 N.W.2d 324, 327 (N.D.1984). We do not agree, however, that the determination of whether or not Blueshield’s use of physical force constituted “misconduct” is purely a question of law. While there are occasions, because of the clarity of the particular facts and indisputability of the inferences drawn from those facts, when we can determine that a particular conduct does or does not constitute “misconduct” as a matter of law, see Olson v. Job Service North Dakota, 379 N.W.2d at 287, ordinarily the determination of whether or not particular conduct is “misconduct” is a question of fact. See Schadler v. Job Service North Dakota, 361 N.W.2d 254; Perske v. Job Service North Dakota, 336 N.W.2d 146. As can be implied from our definition of “misconduct” stated earlier herein, the determination of misconduct depends upon the facts and circumstances of each individual case and as such is subject to the judgment of Job Service and its expertise. As we have often said, we should not substitute our judgment for that of qualified experts in the administrative agencies. Sonterre v. Job Service North Dakota, 379 N.W.2d at 283; Matter of Boschee, 347 N.W.2d at 335; Perske, 336 N.W.2d at 148.

The determination of whether or not an employee was discharged for misconduct is similar to a determination of whether or not a particular employee left his employment for a “good cause” attributable to the employer. Section 52-06-02(1), N.D.C.C. This determination is also ordinarily a question of fact. See, Sonterre v. Job Service North Dakota, 379 N.W.2d 281; Lord v. Job Service North Dakota, 343 N.W.2d 92 (N.D.1984). See, however, State Hospital v. North Dakota Employment Security Bureau, 239 N.W.2d 819 (N.D.1976), for a situation involving a question of law.

Blueshield argues that this isolated hotheaded incident does not justify denial of unemployment benefits because this incident did not interfere with his employer’s business. The first part of this argument appears to be that a single hotheaded incident is not enough to deny a person unemployment benefits. To support this, Blueshield cites Windsperger v. Broadway Liquor Outlet, 346 N.W.2d 142, 145 (Minn. 1984); Goodwin v. Employment Division, 35 Or.App. 299, 581 P.2d 115, 117 (1978); and Geraths v. Employment Division, 24 Or.App. 1066, 544 P.2d 1066 (1976).³ We have recently held, however, that a single incident can constitute misconduct disqualifying an employee from receiving unemployment compensation benefits. Schadler v. Job Service North Dakota, 361 N.W.2d at 257.

An isolated hotheaded incident certainly will not necessarily result in disqualification of unemployment compensation benefits because of “misconduct.” Whether ór not an isolated incident constitutes “misconduct” depends upon the facts and circumstances of each individual case. See generally Schadler v. Job Service North Dakota, 361 N.W.2d 254. In Schadler, we agreed with Job Service that a single unexcused absence of a nurse’s aide at a nursing care facility did constitute misconduct because of the “critical importance” of the care given by nurses' aides to the residents of the facility.

We do not believe that it can be seriously questioned that a single incident involving an employee’s use of physical force also can be of critical importance rising to the level of misconduct. This determination, however, depends upon the facts and circumstances of a particular case. It is the duty of Job Service to determine whether or not the facts of a particular case give rise to misconduct and it is the duty of our Court to uphold Job Service’s decision if it is supported by a preponderance of the evidence.

Both parties in the instant case have referred us to other state court cases in which an employee was discharged from employment because of the employee’s use of physical force or violence. Blueshield refers us to Brown v. Lockwood, 380 So.2d 685 (La.App.1980), in which a Louisiana Court of Appeals determined that an employee was entitled to unemployment benefits after she was discharged from work for fighting. The court concluded, however, that the claimant was justified because she acted in self defense after being slapped in the face and cornered by two other employees. There is no evidence in the instant case that Blueshield acted in self defense ór in response to physical aggression by Hill.

Job Service refers us to several cases in which unemployment benefits were denied to an employee who was discharged for using physical force or violence. Perez v. Unemployment Compensation Board of Review, 58 Pa.Cmwlth. 282, 427 A.2d 763 (1981); Wisniewski v. Unemployment Compensation Board of Review, 34 Pa. Cmwlth. 332, 383 A.2d 254 (1978); Unemployment Compensation Board of Review v. Vojtas, 23 Pa.Cmwlth. 431, 351 A.2d 700 (1976); Beville v. Unemployment Compensation Board of Review, 15 Pa.Cmwlth. 371, 327 A.2d 197 (1974); McGraw-Edison Co. v. Dept. of Industry, Labor & Human Relations, 64 Wis.2d 703, 221 N.W.2d 677 (1974); McCullough v. Unemployment Compensation Board of Review, 197 Pa. Super. 389, 178 A.2d 813 (1962); Miner v. Administrator, Unemployment Compensation Act, 23 Conn.Supp. 206, 180 A.2d 473 (1961). While several of these cases are somewhat persuasive, we find Wis-niewski v. Unemployment Compensation Board of Review, although it is not an appellate court decision, especially relevant because of the apparent similarity of its facts to the instant case.⁴ In Wisniewski, the claimant pushed a fellow employee “about a couple of feet” after the other employee “began mouthing off” and called the claimant a “dirty bastard.” The court, in rejecting the claimant’s argument that “he had good cause for his conduct” stated, “Words, however gross and abusive, do not justify an assault and battery.”

As we noted earlier herein, “misconduct” “is ... conduct evincing such wilful or wanton disregard of an employer’s interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee.” Reasonably implied in the decision of Job Service is the conclusion that Blueshield violated a rule designed to insure safety, not only efficiency, in a plant equipped with machinery which, if not operated in an atmosphere of calm conducive to such a dual objective, could be very detrimental to the employer and dangerous to the employees. In the instant case, Job Service found that Blueshield’s use of physical force was made “in a wilful manner and in substantial disregard” of his employer’s interest. We believe a preponderance of the evidence supports this conclusion and therefore that Blueshield’s use of physical force constitutes “misconduct,” pursuant to 52-06-02(2), thus disqualifying him from receiving unemployment compensation benefits.

Accordingly, we affirm.

VANDE WALLE, J., concurs.

1 . Blueshield asserts that "uncontroverted testimony showed that the co-worker’s incursion into the area was for the purpose of harassing the Appellant.” Our review of the record, specifically the testimony given by Joanne Schus-ter, the administrative assistant in the personnel department, indicates that Hill was instructed by his immediate supervisor to perform a task which required him to travel through Bluesh-ield’s work area.

2 . Job Service noted in its findings that "remarks” were made between Hill and Blueshield but made no finding concerning the substance of these "remarks.” Blueshield asserts that when Hill approached him he stated, “Don’t be scared.” "This net needs to be repaired." Then after being pushed, stated, “This is the last time you’re going to push me.” “I’m going to kill you. I should kill you.” A fellow employee testified that he heard Hill say, "You old man, I’ll kill you.”

3 . These cases are all distinguishable for the same reason — there was no act of violence or physical force on behalf of the claimant. In Windsperger, a sharply divided Minnesota Supreme Court concluded that an employee who was discharged for “insubordination and a temper tantrum" after an incident in the manager’s office, where no customers or other employees heard the confrontation and no vulgarity, profanity, or physical force was used was not discharged for "misconduct" within the meaning of the statute. 346 N.W.2d 142. See also, companion case of Sticha v. McDonald’s No. 291, 346 N.W.2d 138 (Minn.1984). In Geraths, the court concluded that an employee was not discharged for "misconduct” when she was discharged from her employment after leaving work early to respond to a "frantic telephone call from her daughter,” and failing to notify her supervisor before her departure because she believed her supervisor was out of the plant. 544 P.2d 1066. In Goodwin, the court concluded that an employee who was discharged after arguing with an assistant manager for approximately 15 to 20 minutes was not discharged for "misconduct.” 581 P.2d 115.

4 . The remainder of the cases referred to us by Job Service are distinguishable on their facts, often because the amount of force used by the discharged employee appears to be of greater magnitude than the force used by Blueshield.