Crain v. Employment Sec. Dept. of State of Wash.

• Decision Date: 13 April 1992
• Docket Number: No. 27826-6-I
• Citation: Crain v. Employment Sec. Dept. of State of Wash., 827 P.2d 344, 65 Wn.App. 51 (Wash. App. 1992)
• Parties: Larry B. CRAIN, Appellant, v. EMPLOYMENT SECURITY DEPARTMENT OF the STATE OF WASHINGTON, Respondent.
• Court: Washington Court of Appeals

Page 51

65 Wn.App. 51

827 P.2d 344

Larry B. CRAIN, Appellant, v. EMPLOYMENT SECURITY DEPARTMENT OF the STATE OF WASHINGTON, Respondent.

No. 27826-6-I.

Court of Appeals of Washington Division 1.

April 13, 1992.

William B. Knowles and Mary Lynn Greiner, Seattle, for appellant.

Kenneth O. Eikenberry, Atty. Gen., and Kathy L. Nolan, Olympia, for respondent.

COLEMAN, Judge.

Larry Crain appeals the Superior Court's order affirming the determination of the Employment Security Department Commissioner that Crain's work-related misconduct disqualified him from unemployment compensation benefits. We affirm.

Crain was employed as a production worker for approximately 9 years by Kenworth, a subsidiary of PACCAR, Inc., but was suspended on April 6, 1987 after testing positive for cocaine and marijuana. Subsequently, Kenworth stipulated that Crain could return to work if he entered a drug rehabilitation program and tested negative for drugs and alcohol. Crain was reinstated after meeting these conditions and signing a re-entry contract in which he agreed

to take a substance abuse test at the request of the company if there is a reasonable cause to believe that substance abuse exists or to validate that you are adhering to being drug and alcohol free while at work [and] to adhere to ... company rules of conduct[.]

Nonfulfillment of these or other conditions of the re-entry contract could "result in immediate termination."

Soon after Crain returned to work, a series of incidents occurred which led to Crain's ultimate discharge. On September 17, October 2, and October 3, 1987, Crain received verbal warnings for following improper procedures. On these occasions Crain had used the wrong stock to make parts, made defective parts, or failed to remove an unneeded part from an upper die, causing concerns about safety and damage to the machinery. Finally, on October 8, 1987 Crain failed to properly clamp the top die in the 200 ton bliss machine, and "the top die fell on to the bottom die causing considerable damage."

The Kenworth employee investigating the accident asked Crain "if he had been involved again in substance abuse," and Crain stated he had not. However, because Crain had made an unusually large number of errors from mid-September on, the employer sent Crain to Swedish Hospital for a urinalysis test. Crain tested positive for marijuana. Crain was discharged for violating the re-entry contract which prohibited drug use and for his acts of negligence. Subsequently, the Employment Security Department determined that Crain was discharged for misconduct connected with his work and denied unemployment compensation benefits. Crain appeals.

On December 10, 1987 an Administrative Law Judge reversed the Department decision. The ALJ's findings of fact stated that Crain was terminated for the positive results on his drug test and for his acts of negligence. However, the ALJ determined that the drug test results did not amount to disqualifying misconduct because department policy prohibited using such results to establish that an employee was "under the influence." In addition, the ALJ determined that Crain's acts of negligence had not been established to be willful and could not be disqualifying misconduct under Darneille v. Department of Empl. Sec., 49 Wash.App. 575, 744 P.2d 1091 (1987). ¹ Kenworth appealed to the Commissioner of the Employment Security Department.

The Commissioner received the agency record containing the cassette tapes of the ALJ hearing, the exhibits received into evidence, and the ALJ's findings of fact and conclusions of law. However, a portion of the oral record was inaudible. The Commissioner remanded the matter back to the Office of Administrative Hearings with instructions to conduct another hearing or to reconstruct the missing testimony. Instead, the parties stipulated to the facts as found by the ALJ.

After reviewing the record below along with the stipulated facts, the Commissioner reversed the decision of the ALJ. The Commissioner found that Crain was discharged for the acts of negligence and for violation of his re-entry agreement. The Commissioner did not determine whether the acts of negligence constituted disqualifying misconduct but concluded that Crain's violation of the re-entry agreement constituted disqualifying misconduct under Macey v. Department of Empl. Sec., 110 Wash.2d 308, 752 P.2d 372 (1988). The King County Superior Court affirmed the Commissioner's decision. Crain appeals.

The sole issue on appeal is whether the Superior Court erred by upholding the Commissioner's decision denying Crain unemployment compensation benefits. RCW 50.20.060(1) provides that an employee shall be disqualified from unemployment compensation benefits if "he or she has been discharged ... for misconduct connected with" their work. Misconduct must be established by a preponderance of the evidence. Employment Security Department Unemployment Procedures and Methods Handbook at 483.315, Rev. No. 39, October 30, 1986. For an employee's misconduct to be disqualifying, the employee must violate a reasonable employer rule. See Macey, at 319, 752 P.2d 372.

Crain first assigns error to the Commissioner's denial of benefits, alleging that the Commissioner improperly considered facts not stipulated by the parties to augment the ALJ's findings. Although the parties stipulated to the ALJ's findings of fact after a portion of the oral record was found inaudible, the Commissioner reviewed the ALJ's findings in light of the entire record received. ² The Commissioner then augmented the ALJ's findings of fact by noting that Crain violated his re-entry agreement by failing to remain "drug and alcohol free while at work." Crain contends that this amounted to error.

We disagree. In finding that Crain violated the re-entry agreement by failing the drug test, the Commissioner merely drew a conclusion from the undisputed facts already stipulated to by the parties. Both the ALJ and the Commissioner found that Crain had tested positive for marijuana, that the drug test "played a pivotal role in the employer's decision to discharge", and that Crain's termination notice stated he had "violated [the] terms of [the] re-entry agreement"....