                                  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.is-
charged 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 deliv-
ery 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 signal-
ling 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 trav-
eling 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 termi-
nation 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 vehi-
cle 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 Secu-
rities 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 ap-
peals 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.          Essen-
tially, 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 substan-
tial evidence supports the Board's factual findings, and, if
so, those facts are conclusive and the District Court juris-
diction 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 find-
             ings 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 find-
ings 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 instruc-
tions 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 Hous-
ton, 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 al-
               lowed 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 individ-
               ually 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 disre-
               gard 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 consid-
erably different than those made by the Board, and the Dis-
trict 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 miscon-
duct.    Jrvin discharged Greenwood on the basis of six specif-
ic 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 vacat-
ed.   This cause is remanded to the District Court with direc-
tions 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 Depart-
ment 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 unemploy-
ment insurance benefits.
        However, Dick Irvin, Inc., filed a protest on June 1,
1982.     A redetermination was refused on June 22, 1982, be-
cause 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 con-
ducted 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 employ-
       ment, 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 infrac-
       tions, 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., partici-
pated 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 pre-
sented 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 Ap-
peals 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 juris-
diction 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 miscon-
duct 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.
