This is the Oklahoma Employment Security Commission's (OESC) appeal from the district court's August 12, 1999, order reversing the decision of the OESC, the Board of Review of the OESC (Board), and the Appeal Tribunal of the OESC to deny unemployment benefits to Earl Love (Employee). The district court determined the OESC's order was based upon a misinterpretation of statutory law as applied to the facts in this case. Based upon our review of the facts and applicable law, we affirm as modified.
Facts
It is undisputed that Employee worked for Employer CMI Limited Partnership as a Mechanic Hydraulic Assembler A in Oklahoma City from February 14, 1994, until his termination July 16, 1998. He had no record of disciplinary infractions and was described by his supervisor as "a good worker." Employee does not have a telephone in his home, and is seven miles from the nearest pay phone. This was known to Employer. Employee worked the 6 a.m. to 4:30 p.m. shift. Employer had the following written policy in effect:
"B. Reporting Absences If you know you will be absent, obtain the approval of your supervisor in advance. If prior arrangements have not been made, absence must be reported to your supervisor, or designee, no later than two (2) hours of the beginning of your shift. Unless you have given prior, adequate explanation to your supervisor, each day of absence must be reported. Failure to do so may result in disciplinary action. Reporting an absence does not necessarily excuse the absence. You are required to report your own absence, no one else can call in for you.
"If you are absent three or more consecutive working days, even if you have reported the absence, your supervisor will require proof of illness (e.g. a licensed medical practitioner's statement). Failure to provide such evidence when requested may result in discipline.
"If you are absent for three consecutive working days without giving proper notification, you may be discharged." (Emphasis added.)
On the weekend of July 4-5, 1998, Employee was chopping wood for a barbeque when his leg was pierced by a wood fragment. He did not think much of it until the leg began swelling and became painful Sunday night. On Monday morning, July 6, 1998, between 6 a.m. and 8 a.m., Employee went to the nearest phone and reported to his supervisor that he had injured his leg, would be seeking a doctor that day, and would not be at work. It appears from the record that Employer accepted this phone call as an adequate notice of absence. There is no evidence in the record that Employer considered this notice unacceptable or not in compliance with its rules. Indeed, the Appeal Tribunal's order notes Employee's compliance with Employer's rules for that day.
Employee went to a physician who determined Employee's leg was severely infected. A surgical procedure was performed that day which removed part, but not all, of the wood fragment. Employee was sent home Monday with strong antibiotics and pain medication. He was unable to drive himself, and was assisted by a friend. Employee's undisputed testimony indicates that when he returned from the physician Monday, he slept until 3 p.m. the following afternoon, Tuesday, July 7. It is further undisputed that Employee did not call Employer to report his absence on Tuesday.
Employee returned to the physician on Wednesday, July 8 to undergo further surgery to remove the remaining wood fragment. Following the surgery, Employee's friend called Employer on Employee's behalf at approximately 4 p.m. that afternoon. Employer was notified of the reason for Employee's absence.
Employee returned to work on Thursday July 8, at 4 p.m. to pick up his paycheck and deliver a physician's note excusing Employee from work until the following Monday. Employee was terminated that day for job abandonment, after failing to timely notify Employer of his absence for three consecutive days.
Employee sought unemployment benefits, which were denied on August 28, 1998, because he had been discharged for misconduct. Employee appealed September 1, 1998, and sought a hearing before the Appeal Tribunal. A telephonic hearing was conducted September 22, 1998. A hearing officer executed an order dated September 24, 1998, denying benefits. The hearing officer, after citing the definition of misconduct found in Vester v. Board of Review of Oklahoma Employment Security Commission, 1985 OK 21, 698 P.2d 533, determined that:
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"Employer policy required claimant to report absence daily no later than two hours after the beginning of his shift. The policy provided possible discharge for absence of three consecutive workdays without proper notification. Claimant was knowledgeable of the employer policy. Claimant had no telephone at his residence.
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"The employer has a burden to prove misconduct as cited in Vester, above. Absence constitutes misconduct when it is unreported, unjustified, unexplained, or unexcused. Claimant asserts he did not notify the employer daily as he had no home phone, was unable to drive himself, and took prescribed pain medication. Not having a home phone does not relieve an employee of the requirement to notify an employer regarding absence. Even though claimant was unable to drive himself and taking the pain medication, he still was fit enough to obtain medical treatment on two days of his three-day no call/no show absence. Claimant's action in failing to notify his employer of absence measured sic to misconduct. Benefits are denied." (Emphasis added.)
Employee filed an appeal with the Board October 5, 1998, to review the Appeal Tribunal's decision. The Board affirmed the decision of the Appeal Tribunal in an undated opinion mailed to the parties on January 7, 1999. Employee then filed a petition for judicial review of the Board's decision with the McClain County District Court on January 13, 1999, seeking review of the Board's decision, pursuant to 40 O.S. 2-610 (1991).1
On July 22, 1999, the trial court executed a minute order reversing the Board's opinion, finding the hearing officer misinterpreted the statutory and case law as it applied to willful misconduct. The minute order was memorialized in an appealable form and filed August 12, 1999. OESC appeals. We affirm as modified.
Standard of Review
The district court sits as an appeal tribunal and its jurisdiction is limited to the consideration of the transcript and the argument of the respective attorneys thereon. The district court is limited to determining whether an error of law was committed in the hearing and whether the findings are supported by the evidence introduced. Vester v. Board of Review of Oklahoma Employment Sec. Comm'n, 1985 OK 21, 697 P.2d 533, 536. The findings, decisions, and orders of an administrative body are presumptively correct and valid absent competent evidence to the contrary. Banking Board of the State of Oklahoma v. Wilkerson, 1982 OK 33, 642 P.2d 1141. A court of review, such as the district court, may not substitute its judgment for that of an agency, especially when the agency is acting in its own area of expertise. Tulsa Area Hospital Council, Inc. v. Oral Roberts Univ., 1981 OK 29, 626 P.2d 316.
The question of whether there has been sufficient "misconduct" so as to disqualify a claimant from benefits presents a question of fact on which the Board of Review's 7 determination is conclusive if supported by evidence. 40 O.S. 2-610(1) (1991); Vester, 1985 OK 21 at 17; 697 P.2d at 538.
Analysis
According to the testimony at the hearing:
"Our handbook stipulates that if anyone does not call in within the first two hours of the beginning of the shift for three days, it is considered job abandonment. And due to that reason, Mr. Love did not call in within those three days within the time specified and he was released from employment."
The Appeal Tribunal held: "Claimant's action in failing to notify his employer measured sic to misconduct."
We have read the transcript of the hearing and reviewed all the evidentiary materials, keeping in mind the very great deference given to the Appeal Tribunal's findings of fact. We note Employee's supervisor testified that:
"And uh, he had indicated that he was going to the doctor to get the splinter out and had been there and the reason he didn't call in, that he, the closest phone to his house was like seven miles, cause he didn't have a phone at home. And then he turned around and explained that he was going back and forth to the doctor every day and at that time, you know, he could have stoPped anywhere and called in and let me know what was going on, but he did not do that." Emphasis added.
The supervisor was later asked:
"So, had Mr. Love called in himself uh would you have taken his response to what was wrong and uh looked at the problem that you were having at a different stand? sic"
He answered:
"Yes I would have and I would have indicated to him, you know, that if he is going to be off work, he needs to let me know about how long or if he could get to a phone or have somebody else call me at least on a daily basis to let me know how he was doing." Emphasis added.
We review the record to determine "whether an error of law was committed in the hearing and whether or not the findings are supported by the evidence introduced. . . ." In re White, 1960 OK 188 at 8, 355 P.2d 404, 406. In doing so, we find there is no evidence of "wilful or wanton disregard of an employer's interests . . . or of carelessness or negligence of such degree . . . 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." Vester, 1985 OK 21 at 12, 697 P.2d at 537 (quoting Boynton Cab v. Newbeck, 296 N.W. 636, 640 (1941)).
Instead, we find the evidence supports a finding that Employee is, at worst, guilty of conduct which reflects "mere inefficiency, unsatisfactory conduct, . . . ordinary negligence in isolated instances, or good faith errors in judgment or discretion . . . ." Id. Such acts "are not to be deemed 'misconduct' within the meaning of the statute." Id. Accordingly, we conclude the Appeal Tribunal failed to properly apply the law to the facts. The Board improperly affirmed the decision of the Appeal Tribunal. The district court correctly held the order contained an error of law, and properly reversed the order on that basis alone. The first paragraph of the district court's August 12, 1999, order is affirmed.
We must, however, reverse the findings of the district court's order which state the Appeal Tribunal's decision was the product of racial bias, and those portions of the order regarding the employer/employee handbook. Those findings are not supported in the record and are stricken. The appealed order is affirmed as modified.
AFFIRMED AS MODIFIED.
STUBBLEFIELD, J., and REIF, J., concur.
(FOOTNOTES):
1 Section 40 O.S. 2-610. Judicial Review
"(1) Within the ten (10) days after the day a notice of decision of the Board of Review is mailed to the parties, the Commission, or any party to the proceedings before the Board of Review, may obtain judicial review thereof by filing in the district court of the county in which the claimant resides . . . . In any proceeding under this section the findings of the Board of Review as to the facts. if supported by evidence, shall be conclusive and the jurisdiction of said court shall be confined to questions of law. No additional evidence shall be received by the court, but the court may remand the case and order additional evidence to be taken before the Board of Review, and the Board may, after hearing such additional evidence, modify its findings of fact or conclusions, and file such additional or modified findings and conclusions, together with the transcript of the additional record, with the court." (Emphasis added.)