Skjefte v. Job Service North Dakota, 11177

• Decision Date: 20 August 1986
• Docket Number: No. 11177,11177
• Citation: 392 N.W.2d 815
• Parties: Denise J. SKJEFTE, Petitioner and Appellee, v. JOB SERVICE NORTH DAKOTA and Maintenance Engineering, Ltd., Respondents and Appellants.
• Court: North Dakota Supreme Court

Page 815

392 N.W.2d 815

Denise J. SKJEFTE, Petitioner and Appellee, v. JOB SERVICE NORTH DAKOTA and Maintenance Engineering, Ltd. Respondents and Appellants.

No. 11177.

Supreme Court of North Dakota.

Aug. 20, 1986.

David A. Garaas, of Garaas Law Firm, Fargo, for petitioner and appellee.

Sidney Hertz Fiergola, Asst. Atty. Gen., Bismarck, for respondent and appellant Job Service North Dakota.

David S. Marvin, of Nilles, Hansen & Davies, Ltd., Fargo, for respondent and appellant Maintenance Engineering, Ltd.

VANDE WALLE, Justice.

Job Service North Dakota and Maintenance Engineering, Ltd. (hereinafter referred to as M.E.), appealed from a judgment of the district court of Cass County reversing a decision of Job Service that Denise Skjefte was not entitled to unemployment benefits because she was discharged for misconduct. We reverse the judgment of the district court and affirm the decision of Job Service.

According to the findings of Job Service Skjefte was discharged from her employment because she allowed relatives to call her on her employer's toll-free number. The first incident regarding misuse of the toll-free number occurred in August 1984. On September 7, Skjefte's supervisor verbally informed Skjefte that her relatives should not use the toll-free number. On December 31, Skjefte received another personal call from her mother on the toll-free number. She was again warned and the warning was put in writing. She was also told and understood that if she received more calls of this nature she should inform the caller that she could not accept the call. She was also warned that another call would result in her termination. Skjefte then asked her mother not to use the toll-free number any more.

Skjefte received a third call on the toll-free line on February 7, 1985, from her sister-in-law. The conversation lasted approximately six minutes. Skjefte did not ask if it was a toll-free call, nor did she advise the caller that she could not accept such calls. Skjefte was discharged when her employer, M.E., learned of the February 7 call. Job Service found that Skjefte was aware of her employer's policy prohibiting telephone calls of this nature.

The issue before us is whether or not Skjefte's actions constitute "misconduct" under Section 52-06-02(2), N.D.C.C., which provides that a person is disqualified for unemployment benefits for "the week in which he has been discharged for misconduct in connection with his most recent employment and thereafter until such time as ..."

The term "misconduct" is not defined in the North Dakota Unemployment Compensation statutes, but we have adopted the definition of that term from Boynton Cab Co. v. Neubeck, 237 Wis. 249, 296 N.W. 636, 640 (1941), to the effect 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, inadvertencies 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."

See Blueshield v. Job Service North Dakota, 392 N.W.2d 70 (N.D.1986); Olson v. Job Service North Dakota, 379 N.W.2d 285 (N.D.1985); Schadler v. Job Service North Dakota, 361 N.W.2d 254 (N.D.1985); Perske v. Job Service North Dakota, 336 N.W.2d 146 (N.D.1983).

When we consider an appeal from a judgment of the district court reviewing the decision of an administrative agency, we review the decision of the agency, not the decision of the district court. ¹ Blueshield, supra. Our review of administrative decisions is governed by Section 28-32-19, N.D.C.C., and that review requires us to determine: (1) if the findings of fact are supported by a preponderance of the evidence; (2) if the conclusions of law are sustained by the findings of fact; and (3) if the agency decision is supported by the conclusions of law. Otto v. Job Service North Dakota, 390 N.W.2d 550 (N.D.1986). The standards we use in making such a determination have been summarized as follows:

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 the qualified experts in the administrative agencies. Blueshield, supra; Matter of Boschee, 347 N.W.2d 331 (N.D.1984).

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 particular conduct does or does not constitute "misconduct" as a matter of law, ordinarily the determination of whether or not particular conduct is "misconduct" is a question of fact. Blueshield, supra. Cf. Carlson v. Job Service North Dakota, 391 N.W.2d 643 (N.D.1986) [whether a person left employment voluntarily is a mixed question of fact and law]. 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. Blueshield, supra. We do not substitute our judgment for that of qualified experts in administrative agencies. Sonterre v. Job Service North Dakota, 379 N.W.2d 281 (N.D.1985).

M.E. hired Skjefte as a file clerk in 1979. She shared the use of a telephone with five other employees. M.E. has incoming toll-free WATTS lines for business purposes to allow sales people to telephone the office with questions or problems and to service accounts. One line is for calls originating in North Dakota and the other is for calls originating in one of the other 49 States. M.E. has a written policy prohibiting the release of the toll-free numbers to friends and relatives and the use of the...