Durham v. Department of Employment Sec. of State of Wash., 4897-3-II

• Decision Date: 27 April 1982
• Docket Number: No. 4897-3-II,4897-3-II
• Citation: 31 Wn.App. 675,644 P.2d 154
• Parties: James W. DURHAM, Patrick J. Hurley and David W. Krona, Respondents, v. The DEPARTMENT OF EMPLOYMENT SECURITY OF the STATE OF WASHINGTON, Appellant, and Asarco, Inc., Appellant.
• Court: Washington Court of Appeals

Page 675

31 Wn.App. 675

644 P.2d 154

James W. DURHAM, Patrick J. Hurley and David W. Krona, Respondents, v. The DEPARTMENT OF EMPLOYMENT SECURITY OF the STATE OF WASHINGTON, Appellant and Asarco, Inc., Appellant.

No. 4897-3-II.

Court of Appeals of Washington, Division 2.

April 27, 1982.

Matthew J. Coyle, Asst. Atty. Gen., Olympia, Bruce M. Cross, Russell L. Perisho, Seattle, for appellants.

Clark D. Silliman, Seattle, for respondents.

WORSWICK, Judge.

The Department of Employment Security and Asarco, Inc., appeal a superior court judgment reversing a decision by the Commissioner of the Department of Employment Security that the respondent employees engaged in work-connected misconduct within the terms of RCW 50.20.060 disqualifying them from receiving unemployment compensation following their discharge by Asarco. We reverse the judgment and reinstate the Commissioner's decision.

Our review is governed by the following principles:

(1) Because we review the same record on the same basis as did the superior court, we do so without reference to the conclusions reached by that court.

(2) For the same reason, findings of fact and conclusions of law entered by the superior court are superfluous to our review. Andreas v. Bates, 14 Wash.2d 322, 128 P.2d 300 (1942).

(3) The Commissioner's decision is prima facie correct and the burden of proof is upon the party attacking it. In re All-State Constr. Co., 70 Wash.2d 657, 425 P.2d 16 (1967).

(4) It may be reversed only if "clearly erroneous in view of the entire record as submitted and the public policy contained in the act ..." Schuffenhauer v. The Department of Empl. Sec., 86 Wash.2d 233, 543 P.2d 343 (1975); Ancheta v. Daly, 77 Wash.2d 255, 461 P.2d 531 (1969); Willard v. Employment Sec. Dept., 10 Wash..App. 437, 517 P.2d 973 (1974); RCW 34.04.130(6) (e).

(5) It is clearly erroneous if, although there is evidence to support it, this court is left with the definite and firm conviction that a mistake has been committed. Schuffenhauer v. The Department of Empl. Sec., supra; Ancheta v. Daly, supra; Willard v. Employment Sec. Dept., supra.

In September, 1978, respondents were employed in the anode department of Asarco's Tacoma smelter. They worked the day shift from 7:00 a. m. to 3:00 p. m. Toward the end of their shift, respondents routinely drained molten copper from a 300-ton capacity furnace and cleaned the "tap hole." This was done so when the furnace was refilled, or "charged," the plug that fits in the tap hole would not fail and allow tons of molten copper to escape. ¹ After finishing this work, the crew customarily washed up between 2:40 p. m. and 3:00 p. m. before leaving the plant.

On September 26, 1978, respondent Hurley notified his foreman four times between 9:00 a. m. and 2:15 p. m. that he did not want to work past 2:40 p. m.

At 2:15 p. m., the foreman informed all respondents that if they did not stay until the furnace was drained, they would be discharged. At 2:40 p. m., the furnace was not totally drained, but respondents nevertheless left. Substitute workers were brought in and completed the work in 5 minutes. The next day Asarco discharged respondents.

The Department denied respondents' claim for unemployment compensation, the appeal tribunal recommended that the denial be affirmed and the Commissioner did affirm, all on the basis that respondents engaged in work-connected misconduct within the terms of RCW 50.20.060. ² The policy of the act is announced in RCW 50.01.010 which declares the legislative intent to provide for those who become unemployed through no fault of their own. Read in light of this policy, it is clear that RCW 50.20.060 is intended to disqualify from benefits those whose own behavior is the cause of their unemployment. It provides:

An individual shall be disqualified from benefits beginning with the first day of the calendar week in which he or she has been discharged or suspended for misconduct connected with his or her work ...

Because of the infinite variety of work and the enormous potential for disputes about what constitutes misconduct and when it is connected with work, the Commissioner must be allowed a reasonable latitude to decide on a case by case basis whether this statute applies. ³ In doing so, the Commissioner must, of course, stay within the interpretations of the statute made by the courts of this state.

The only previous case to attempt such an interpretation on facts analogous to this case is Willard v. Employment Sec. Dept., supra, which adopted the following general statement from Boynton Cab. Co. v. Neubeck, 237 Wis. 249, 296 N.W. 636 (1941):

the intended meaning of the term "misconduct," ... is limited to conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, 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 and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed "misconduct" within the meaning of the statute.

Willard, 10 Wash.App. at 444, 517 P.2d 973.

In deciding the case before it, the Willard court was required to refine and simplify these concepts. A thorough reading of Willard and our own consideration of the statute lead us to conclude that the following guidelines are appropriate in applying RCW 50.20.060 to this and similar cases:

(1) The employer's...