Brandley v. Employment Sec. Dept.

• Citation: 23 Wn.App. 339,595 P.2d 565
• Decision Date: 15 May 1979
• Docket Number: No. 2851-III,2851-III
• Parties: Linda E. BRANDLEY, Appellant, v. EMPLOYMENT SECURITY DEPARTMENT of the State of Washington, Respondent.
• Court: Washington Court of Appeals

Page 339

23 Wn.App. 339

595 P.2d 565

Linda E. BRANDLEY, Appellant, v. EMPLOYMENT SECURITY DEPARTMENT of the State of Washington, Respondent.

No. 2851-III.

Court of Appeals of Washington, Division III, Panel Three.

May 15, 1979.

Gerald R. Tarutis, Evergreen Legal Services, Seattle, John M. Clark, Ellensburg, for appellant.

Slade Gorton, Atty. Gen., Joseph M. Littlemore, Asst. Atty. Gen., Olympia, for respondent.

MUNSON, Judge.

Linda Brandley appeals an Employment Security Department commissioner's decision denying her unemployment benefits because she was not immediately available for work. RCW 50.20.010(3). ¹ This appeal presents two issues: (1) The proper standard of appellate review; and (2) the construction to be given the phrase "ready, able and willing immediately to accept any suitable work" in the undisputed factual context of this case. We reverse, noting that this opinion does not authorize benefits carte blanche for a recipient's vacation.

Ms. Brandley was temporarily employed by the United States Forestry Service as a forest technician at the Naches Ranger Station and was terminated December 7, 1976, when her temporary appointment ended. She received benefits for the week ending December 11. On December 15, 1976, she left Ellensburg and flew to Kansas to visit her family, at their expense, for the Christmas holidays. She returned on January 6, 1977. During those 4 weeks she sent 13 letters and resumes seeking forestry work, primarily to governmental agencies. She mailed letters to agencies in all of the northwestern states and also to Utah, Nevada, Colorado, New Mexico, and Louisiana. While in Kansas she sought temporary Christmas work without success. Before leaving Ellensburg, she arranged to have her mail forwarded from any prospective employers. The commissioner found her work search was sufficient, ² but because she was some distance from Washington, during the winter, there would be too much delay and difficulty in contacting her therefore, she was not immediately available for work as required by RCW 50.20.010(3).

1. Proper Standard of Review.

An appellate court accepting an appeal from an agency decision applies the proper standard of review directly to the record of the administrative proceedings and not to the findings and conclusions of the superior court. Standow v. Spokane, 88 Wash.2d 624, 637, 564 P.2d 1145 (1977). Unless an agency's decision involves only questions of fact, the proper standard of review is the error-of-law standard. RCW 34.04.130(6)(d). Washington State Ferries v. International Organization of Masters, Mates & Pilots, 20 Wash.App. 887, 584 P.2d 397 (1978); Cf. ITT Rayonier, Inc. v. Department of Ecology, 91 Wash.2d 682, 586 P.2d 1155 (1979); Leschi Improvement Council v. Washington State Highway Commission, 84 Wash.2d 271, 282, 525 P.2d 774 (1974). Under such standard, the court exercises its inherent and statutory authority to make a de novo review independent of the commissioner's decision. Daily Herald Co. v. Department of Employment Security, 91 Wash.2d 559, 561, 588 P.2d 1157 (1979); Leschi Improvement Council v. Washington State Highway Commission, Supra ; Department of Revenue v. Boeing Co., 85 Wash.2d 663, 538 P.2d 505 (1975); Short v. Clallam Co., 22 Wash.App. 825, 593 P.2d 821 (1979).

Since there is a dispute here both as to the propriety of the inferences drawn by the agency from the agreed facts and as to the meaning of the statutory term, "availability," there exists a mixed question of law and fact. Daily Herald Co. v. Department of Employment Security, Supra, 91 Wash.2d at 561, 588 P.2d 1157; Leschi Improvement Council v. Washington State Highway Commission, Supra, 84 Wash.2d at 283, 525 P.2d 774; Short v. Clallam County, Supra, 22 Wash.App. at 831, 593 P.2d 821. Neither the "clearly erroneous" standard of RCW 34.04.130(6)(e), nor the "arbitrary and capricious" standard of RCW 34.04.130(6)(f) is applicable; the error of law standard is proper here. RCW 34.04.130(6)(d). Daily Herald Co. v. Department of Employment Security, Supra.

2. Construction of "Availability."

The remaining question is whether the commissioner erred in concluding ³ that Ms. Brandley was not "immediately" available for work during the 4-week period that she was in Kansas.

No prescribed set of factors determines "availability;" each case depends largely upon its own peculiar facts and circumstances. See Denver Post, Inc. v. Department of Labor & Indus., 586 P.2d 1342, 1345 (Colo.App.1978). While the words of this statute (RCW 50.20.010) give a general description of what is necessary to constitute availability, "its application to a specific case hinges to a great extent upon the significance and shade of emphasis to be given various . . . (words) used therein, when considered in the light of the particular situation presented." Jacobs v. Office of Unemployment Compensation and Placement, 27 Wash.2d 641, 652, 179 P.2d 707, 713 (1947).

In re Blixt, 1 Employment Security Commissioner's Decision 108 (1954), is enlightening on the construction of the phrase "immediately available." That case involved a professional researcher who had gone to California to take an examination for a position there (admittedly not on a vacation).

The standard by which we weigh the word "immediately" is a flexible standard, and the rule must be determined by a consideration of the location of, and employment practices for, the particular occupation involved. It would seem proper to expect an individual seeking work as an assistant in a research department, by the very nature of the position, to search for work in distant states, and to explore each apparently bona fide employment opportunity. If the Employment Security Department had referred the appellant to the prospective job opportunity, a refusal by the appellant to make a proper investigation, and perhaps a trip to California, would not have been lightly considered.

The willingness of the subject to immediately accept work was within the meaning of "immediacy" as it relates to the type of work which he was seeking. Openings in the research field are not ruled by the urgency found in industrial operations.

The Commissioner concludes that an individual seeking employment in a professional occupation in which opportunities are not numerous and then to be found perhaps in relatively distant locations, will not be subject to ineligibility as being not ready, able, and willing, immediately to accept suitable work under this Act when such individual responds to a bona fide employment opportunity, and does not unreasonably delay his return to local office area.

(Italics ours.)

Here, the evidence indicated that it is customary in the forestry profession to send out letters of application and resumes in which the prospective employer would then send a letter of inquiry giving the applicant 2 weeks to rely. Ms. Brandley's former employer was asked to forward her mail or to phone her if there were such letters; in fact, he did forward one letter. The local employment office had advised her to contact 2 to 4 employers per week and had no objection to a search by letter. Ms. Brandley stated that job openings in her field did not become available within 24 to 48 hours and she would have been ready and willing to leave Kansas at any time if an opening or request for an interview had occurred. ⁴ It was only after the period in question that the department issued a directive to her to seek work outside her field; she apparently complied.

Under these circumstances and applying the standard of the commissioner defined in Blixt, Ms. Brandley was as immediately available as possible, given the type of work she was seeking. Ms. Brandley's distance during her absence from the state did not affect her availability since her job search was a national one; she was closer to some states to which she had sent letters while she was in Kansas than if she...