Walter Kidde & Co., Inc. v. Bradshaw

289 S.E.2d 571 (1982)

In the Matter of WALTER KIDDE & COMPANY, INC. v. Jack D. BRADSHAW, Ed Fisher, Grady L. Hundley, David A. Tuttle, and Employment Security Commission of North Carolina.

No. 8115SC524.

Court of Appeals of North Carolina.

April 6, 1982.

*572 Haynsworth, Baldwin, Miles, Johnson, Greaves and Edwards by Charles P. Roberts, Greenville, S. C., for plaintiff-appellant.

Gail C. Arneke and C. Coleman Billingsley, Jr., Raleigh, for Employment Security Commission of North Carolina, appellee.

MORRIS, Chief Judge.

The sole issue on appeal is whether claimants were discharged because of misconduct associated with their work and are thus disqualified from receiving unemployment benefits.

Findings of fact of the Commission are conclusive if supported by the evidence, and judicial review is limited to determining whether errors of law have been committed. G.S. 96-15(i). The findings of fact to which appellant excepts are as follows:

5. The employer alleged they were discharged as a result of having found gambling for money while on company property and during a work day. 6. Each of the parties (claimants) involved denies having done any gambling for money. Each party (claimant) does agree that they were playing cards for a game or two, but not with any betting for money involved. Someone had found an incomplete deck of cards and while waiting for job assignments the four claimants fooled around playing a hand or two of cards. 7. The claimants were not playing cards for money and were not therefore gambling as the employer alleged. An employer witness stated that he thought they were gambling, but had not seen any money being passed. He had only observed washers on what might have been used as a card table.

We hold that these findings are fully supported by the testimony given at the hearing and reflected in the record. The findings of fact are, therefore, binding on appeal.

We hold, furthermore, that the facts support the Commission's conclusion that the claimants were not discharged for misconduct in connection with their work.

An employee will be disqualified for benefits if it is determined that he was discharged for misconduct connected with his work. G.S. 96-14(2). "Misconduct" as that word is used in unemployment compensation law has been defined as

... conduct evincing such wilful or wanton disregard of an employer's interest as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee ....

In re Collingsworth, 17 N.C.App. 340, 343-44, 194 S.E.2d 210, 212-13 (1973), quoting Boynton Cab Company v. Neubeck, 237 Wis. 249, 259, 296 N.W. 636, 640 (1941), where the Wisconsin Court noted that "mere inefficiency, unsatisfactory conduct ... are not to be deemed `misconduct' ...". Id. at 260, 296 N.W. at 640. The facts support a conclusion that there was no wilful or wanton disregard of the employer's interest.

Claimants were accused of and discharged for gambling. There is no evidence that the men's card playing amounted to gambling, however. Appellant made no showing that money was passed, or that the washers on the make-shift table around which the employees sat had any value, or that they represented something of value. Appellant argues that its rule against gambling need not be limited to gambling for *573 money. Every definition adduced by the parties depicts gambling as a game of chance in which money or something of value is at stake, however. The criminal offense of gambling in North Carolina, for example, is described as "any game of chance at which any money, property, or other thing of value is bet." G.S. 14-292. There is absolutely no evidence that the claimants' play was for anything, tangible or intangible, of value or exchangeable for value.

It is clear from the record and briefs that gambling among employees is prohibited by Walter Kidde and Company, Inc. Card playing, though perhaps undesirable at the workplace, was not explicitly prohibited. Claimants' conduct, therefore, violated no rule, and the Commission could legitimately conclude that claimants were not engaged in conduct evincing substantial disregard for the standard of behavior to which they were expected to adhere.

The judgment of the Superior Court is, for the reasons stated above,

Affirmed.

VAUGHN and HARRY C. MARTIN, JJ., concur.