No brief filed by petitioner-appellee.
Deputy Chief Counsel Charles E. Monteith, Jr., for respondent-
appellant Employment Security Commission of North Carolina.
No brief filed by employer-appellant.
MARTIN, Chief Judge.
Respondent-appellant Employment Security Commission of North
Carolina (ESC) appeals from an order of the Alamance County
Superior Court setting aside ESC's disqualification of petitioner-
appellee from receiving unemployment insurance benefits and
remanding the matter to the ESC.
On 19 May 2002, petitioner-appellee Michael Graves filed a
claim for unemployment insurance benefits upon being terminated
from his job. The matter was referred to an adjudicator who issued
a determination that petitioner-appellee was discharged for
misconduct connected with work and thus, was disqualified from
receiving benefits pursuant to G.S. § 96-14(2). The matter was
appealed to an appeals referee who made the following findings of
fact pertinent to this appeal:
2. Claimant was discharged from this job for
refusing to work overtime.
3. Claimant worked for the employer upholstery
manufacturer as a laborer from August 3, 1989
until his discharge on May 13, 2002. Claimant
was discharged because he failed to report to
work when scheduled for three days without
explanation. Those days were March 1, 9 and
May 14, 2002.
4. During peak production times employees were
scheduled for 12-hour work shifts as needed.
Employees expected to report to work early
[sic] than normal were informed of this in
advance. Claimant refused to work the
overtime. Claimant was allowed to have
another employee take claimant's place.
Claimant did this a number of times. The
replacements always informed management when
they were scheduled to work instead of
claimant. Neither of the replacements
promised to work on the dates in question.
5. When claimant could not get someone to take
his place claimant informed the employer that
claimant would be there when “he was supposed
to be there.” The employer took this to mean
as scheduled but claimant meant for his
regular hours.
6. Claimant was informed that his continued
failure to report to work would result in his
discharge. Claimant believed that the
employer did not have the legal right to
require him to work overtime.
Based on these findings, the appeals referee agreed with the
adjudicator that petitioner-appellee was disqualified from
receiving benefits pursuant to G.S. § 96-14(2) due to his refusal
to work overtime. On 27 November 2002, the ESC, by and through its
Chairman, adopted the findings of the appeals referee (with one
minor spelling modification) and affirmed her decision.
Petitioner-appellee appealed the ESC's decision to the superior
court.
On 30 June 2003, the superior court issued an order finding,
inter alia, (1) that petitioner-appellee was deprived of dueprocess because the ESC failed to comply with its own procedures
and regulations regarding the gathering of evidence and the
building of a record on appeal, (2) that the ESC's findings of fact
were in part based on testimony, or omitted evidence, that was
either intentionally or negligently false or misleading, (3) that,
as a matter of law, the record does not establish that petitioner-
appellee engaged in misconduct, and (4) that the record is
insufficient to enable the court to finally determine the rights of
the parties. The superior court ordered petitioner-appellee's
disqualification from receiving unemployment benefits to be set
aside, along with all findings of fact associated with the
disqualification, and remanded the matter to the ESC for re-
processing of the petitioner-appellee's claim from initiation in
accordance with ESC procedures and regulations.
_____________________
The ESC argues the superior court erred by utilizing an
incorrect standard of review. We agree. When reviewing an ESC
decision, “the findings of fact by the Commission, if there is any
competent evidence to support them and in the absence of fraud,
shall be conclusive, and the jurisdiction of the court shall be
confined to questions of law.” N.C. Gen. Stat. § 96-15(i) (2003).
The superior court should first determine if the Commission's
findings of facts are supported by competent evidence and if those
facts sustain the Commission's conclusions of law. In re Enoch, 36
N.C. App. 255, 256, 243 S.E.2d 388, 389-90 (1978). “If the court
properly confines its review to those two questions, there is no
reason to conduct an evidentiary hearing.” Id. at 257, 243 S.E.2dat 390. The trial court may only “affirm the Commission's
dismissal of the appeal or remand the case for consideration of the
substantive issues by the Commission.” Gilliam v. Employment
Security Comm. of N.C., 110 N.C. App. 796, 801, 431 S.E.2d 772, 775
(1993), disc. review denied, 334 N.C. 620, 435 S.E.2d 334 (1993).
The Commission will be upheld if there is any competent evidence to
support its findings. Celis v. Employment Security Comm., 97 N.C.
App. 636, 640, 389 S.E.2d 434, 436 (1990).
N.C. Gen. Stat. § 96-15(h) requires that “[t]he petition for
review shall explicitly state what exceptions are taken to the
decision or procedure of the Commission.” N.C. Gen. Stat. §
96-15(h) (2003). Nadeau v. Employment Security Commission, 97 N.C.
App. 272, 277, 388 S.E.2d 145, 148 (1990); In re Hagan v. Peden
Steel Co., 57 N.C. App. 363, 364, 291 S.E.2d 308, 309 (1982).
In the present case, the trial court received evidence, made
findings concerning the completeness of the record and inadequacy
of the ESC procedures, and concluded that procedural omissions by
the ESC violated claimant's due process rights and that the ESC's
findings of fact were supported by negligently false or misleading
testimony. However, claimant made no exceptions to the ESC's
findings in his petition for review nor did he allege any fraud or
procedural irregularity. Therefore, claimant did not preserve
those issues for review by the superior court and the court lacked
jurisdiction to address them. Its order setting aside the ESC's
decision must be vacated and this cause remanded to the superior
court for review utilizing the correct standard of review.
Vacated and remanded. Judges WYNN and McGEE concur.