The New Hampshire Sweepstakes Commission, pursuant to RSA 282-A:67, appeals a ruling by the Appellate Division of the New Hampshire Department of Employment Security (division) reversing an appeal tribunal’s deniаl of unemployment benefits to Mary E. Crowley under RSA 282-A:32. We affirm the decision of the appeal tribunal for the reasons stated below.
The claimant, Mary E. Crowley, was employed by the New Hampshire Sweeрstakes Commission as a bingo inspector, with law enforcement responsibilities, for approximately four years. On November 12, 1985, she was discharged for willful insubordination for failure to follow a written office procedure issued in April 1985.
On April 18, 1985, the Sweepstakes Commission’s executive director issued an inter-office memo which stated:
“It was recently brought to my attention that there were some copies of bingo and lucky seven files and information being kept outside of the Sweepstakes office. Effective the date of this memo, it will become a Sweepstakes policy that no copies will be allowed to leave the premises unless they are approved by myself and all copies that now exist outside this commission be brought back to the premises.”
Crowley received the memorandum and returnеd a majority of her files to the office. However, three handwritten documents were not returned until six months later. Because of her failure to return these three documents, her employment was terminatеd. She appealed to the State Personnel Appeals Board (board), formerly
She apрlied for unemployment benefits and was denied. After the claimant was denied unemployment benefits she appealed to an appeal tribunal (tribunal). The tribunal, after a full evidentiary hearing including conflicting testimony, also denied the claimant unemployment benefits, on the ground that the employee was discharged for “misconduct connected with [her] work” pursuant to RSA 282-A:32, 1(b). In particular, the tribunal found the employee’s contention that she had forgotten about the three documents not “reasonably believable” and that she “knew, or should have known, that she was obliged to turn in all records when directed to dо so by the Director.” The tribunal further found that the “claimant, by knowingly keeping [the] records at home . . . showed a willful disregard of the employer’s best interests.” No other instances of misconduct were found by the tribunal, although it noted that the claimant had previously challenged the director’s authority.
The claimant then appealed to the appellate division, which reversed the appeal tribunal’s deсision. The division, in reviewing the tribunal’s decision, stated that it would “not substitute [its] judgment for that of the Appeals Tribunal on questions of fact which are supported by evidence . . . [but would] weigh the facts against the appropriate standard for determining when a termination is for misconduct.”
The appellate division found the standard to be that stated in Appeal of Miller,
The sole and dispositive issue before us is whether the appeal tribunal’s decision to deny unemployment benefits to the claimant was lawful.
Conversely, the claimant argues that the division properly reversed the appeal tribunal because the tribunal applied an erroneous legal standard to the facts at hand. See RSA 282-A:65, III.
In response to Crowley’s clаim, the Sweepstakes Commission, in its reply brief, argues that even if the wrong legal standard was applied by the appeal tribunal, the same result would have been reached under the correct standard, and the decision may stand.
RSA 282-A:65 clearly prohibits the division from reversing the tribunal except in certain circumstances. See Appeal of Kelly,
RSA 282-A:65 and RSA 282-A:65, III state in pertinent part:
“The appellate division shall not substitute its judgment for that of the . . . appeal tribunal as tо the weight of the evidence on questions of fact, or as to the prudence or desirability of the determination . . . [and] shall reverse . . . the decision . . . only if the substantial rights of the appellant had been рrejudiced because the findings, inferences, conclusions, or the decision is: . . . [a]ffected by reversible error of law[.]”
Similarly, this court’s “review is confined to the record, and we cannot substitute our judgment as to the weight of the evidence on questions of fact for that of the appeal tribunal.” Appeal of the City of Franklin,
Both the claimant and the Sweepstakes Commission generally agree on the legal standard required under RSA 282-A:32, 1(b). However, the claimant contends that the appeal tribunal’s use of “willful disregard of thе employer’s best interest” is in actuality the Boynton test, which has been rejected in this State in Appeal of United Parcel Service, Inc.,
It is true that New Hampshire has rejected the rule of Boynton supra, which requires:
“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 ... 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 . . . .”
See generally Annotation, Work-Connected Ineffiсiency or Negligence as “Misconduct” Barring Unemployment Compensation,
If, however, there are no recurring acts of carelessness or negligence, New Hampshire law implies that a single instance of misconduct may be sufficient for a finding of misconduсt if it is a “deliberate violation of a company rule reasonably designed to protect the legitimate business interests of [the] employer.” (Emphasis added.) Appeal of Beebe Rubber Co.,
At first blush, the language in United Parcel supra rejecting the Boynton “wilful or wanton” test would indicate that “willful” is not required when there is a single instance of misbehavior. However, “deliberate” is a synonym for “willful,” which means “deliberate, voluntary or intentional,” RANDOM HOUSE DICTIONARY OF THE ENGLISH LANGUAGE (unabridged) 1634 (1966). Willful is further defined as: “vоluntary, as distinguished from accidental ...[,] [i]ntentional or deliberate, yet not necessarily with an evil purpose in mind.” BALLENTINE’S LAW DICTIONARY 1369 (3d ed. 1969). In the employment context, willful means “not only the mere exercise of the will . . . , but ... an intention tо do an act [the person] knows, or ought to know, is wrongful. . . .” Id.
Thus the tribunal’s application of the “willful disregard of the employer’s best interests” legal standard tо Crowley’s one instance of misconduct was correct. There was sufficient evidence for the tribunal to find that Crowley knew she should have returned the documents and deliberately did not do so. These are findings of fact, see generally United Parcel,
Since we find that the division went beyond its powers, as defined in RSA 282-A:65, in reversing the tribunal on issues of fact and hold that the tribunal made no error of law, we affirm the decision of the tribunal.
Decision of the appeal tribunal affirmed.