Emp. of Edgewater Inn, In re

• Decision Date: 14 January 1974
• Docket Number: No. 1700--I,1700--I
• Citation: 517 P.2d 973,10 Wn.App. 437
• Parties: In re EMPLOYEES OF EDGEWATER INN, Petitioners. Adeline S. WILLARD et al., Appellants, v. EMPLOYMENT SECURITY DEPARTMENT of the State of Washington and Maxine E. Daly, Commissioner thereof, Respondents.
• Court: Washington Court of Appeals

Page 437

10 Wn.App. 437

517 P.2d 973

In re EMPLOYEES OF EDGEWATER INN, Petitioners Adeline S. WILLARD et al., Appellants, v. EMPLOYMENT SECURITY DEPARTMENT of the State of Washington and Maxine E. Daly, Commissioner thereof, Respondents.

No. 1700--I.

Court of Appeals of Washington, Division 1.

Jan. 14, 1974.

Hafer, Cassidy & Price, Mr. Lawrence Schwerin, Seattle, for appellants.

Slade Gorton, Atty. Gen., of Wash., Joseph M. Littlemore, Alan R. Krebs, Asst. Attys. Gen., Olympia, for respondents.

SWANSON, Chief Judge.

Appellants, formerly employed as maids at Edgewater Inn in Seattle, Washington, appeal from the trial court's affirmance of a decision by the commissioner of the state Employment Security Department which denied their claim for benefits under the Employment Security Act. The basic question presented is whether the refusal of appellants to obey their employer's order to clean 16 rooms, instead of 15 based on their former practice and their understanding of an oral agreement between the union and their employer which limited room assignments to a maximum of 15, constitutes 'misconduct' as that term is used in RCW 50.20.060 so as to disqualify appellants from any benefits under the Employment Security Act.

These basic facts are not in dispute: Appellants were employed as maids by Edgewater Inn, Pier 67, Seattle, Washington ('employer'), and each was a member of Local 551, Hotel & Motel Club Service Employees' Union ('union'). Between July 22 and July 25, 1969, the five appellants were discharged by the employer as a result of their refusal to obey their employer's directive to clean 16 rooms instead of 15. Each appellant applied for unemployment compensation benefits, as provided for in the Employment Security Act, and each was denied benefits in separate determination notices issued in August, 1969, which indicated that on the basis of available records the appellants were not eligible for benefits because they were discharged for misconduct. Accordingly, benefits were denied for the calender week ending July 26, 1969, and for the 5 calendar weeks which immediately followed, ending August 30, 1969, as provided for in RCW 50.20.060. ¹

On the basis of the record made in a subsequent arbitration proceeding between the union and the employer ² the appeal examiner, after making findings of fact and conclusions, affirmed the department's determination that each appellant was 'discharged for misconduct connected with the work,' and therefore disqualified for benefits. The examiner's findings of fact state in pertinent part as follows:

The union had an agreement with the employer covering the appellants' working conditions and was the bargaining agent for the appellants. This agreement provided that the maximum number of rooms which could be assigned to a maid was 16. The employer began operations in 1962. Although the agreement provided that the maximum number of rooms which could be assigned to any maid was 16, it had been the practice of the employer since it began business to assign no more than 15 rooms to a maid.

On May 31, 1969, the agreement between the union and the employer, which had been in effect since June 1, 1966, expired. Subsequently, a new agreement was negotiated to be effective as of June 1, 1969. This new agreement provided an increase of wages for the maids. The provision with respect to the maximum number of rooms that could be assigned remained at 16.

. . . However, after the new wage agreement went into effect, resulting in increased costs for the employer, Mr. Perry felt that it would be necessary to assign 16 rooms in those cases in which it was felt that the maid could properly handle a 16-room assignment.

. . . Because of the refusal of these maids to accept 16 rooms even if they had time to complete the assignment, they were discharged.

The examiner then concluded:

The question which we have in this matter is whether the appellants were discharged for 'misconduct,' as that term is used in the Act . . . A definition of the term 'misconduct' which has received considerable acceptance is that set forth by the Wisconsin Supreme Court in the case of Boynton Cab Co. v. Neubeck, 237 Wis. 249, 296 N.W. 636 (1941) . . .

There is nothing in the record which would justify a conclusion that the employer was violating the agreement with the union in asking the appellants to accept an assignment of 16 rooms. The union was aware of the fact that the employer was contemplating the assignment of 16 rooms. It would appear that if the assignment of 16 rooms was a violation of the agreement, the union would have advised its members that the employer would be in violation of the agreement by making such an assignment. . . . We do not feel that the employer was unreasonable in asking the appellants to make a commitment as to whether they would complete an assignment of 16 rooms if at all possible. By refusing to make such a commitment, the appellants, for all practical purposes, put the employer on notice that they would not perform the work that the employer felt it had the right to ask of them. The record does not contain and evidence which would justify a conclusion that an assignment of 16 rooms was unreasonable. . . . Nevertheless, it appears to us that the appellants were unwilling to accept the increased work assignment not so much because it was unreasonable, but simply because they had arbitrarily decided that a 15-room assignment was all they were going to be willing to accept.

We have consistently taken the position that an individual commits an act of misconduct when he refuses to comply with a reasonable order from his supervisor. We feel that the action on the part of each of the appellants was an 'intentional and substantial disregard . . . of the employee's duties and obligations to his employer.' Considering all of the circumstances in this case, we find it necessary to affirm the determinations from which the appeals were filed.

Thereafter, the decision of the appeal tribunal was appealed to the commissioner of the Employment Security Department, Maxine E. Daly. The commissioner adopted the appeal tribunal's findings of fact and conclusions in a decision dated June 29, 1970. The commissioner added some additional observations, but essentially concluded that there was nothing unreasonable in the action taken by the employer and that the appellants should have followed the employer's orders and then initiated grievance procedures to resolve any differences between the multi-employer agreement and the local oral agreement. The commissioner took the position that appellants had failed to obey a reasonable order of their employer and that such conduct amounted to insubordination, particularly when other avenues were readily available to resolve any misunderstanding.

The commissioner's decision was appealed to the superior court at a hearing on April 24, 1972. On May 5, 1972, the superior court adopted the findings of fact entered by the appeal tribunal on May 15, 1970 and affirmed by the commissioner on June 29, 1970, and entered a conclusion of law adopting the appeal tribunal's conclusions as affirmed by the commissioner. In addition, the trial court concluded that the commissioner of the Employment Security Department

acted within her power and has correctly construed the law, that she has not been arbitrary or capricious, and that the Commissioner's Findings of Fact are not clearly erroneous in view of the entire record as submitted and the public policy contained in the Employment Security Act.

Conclusion of law No. 2, in part. The trial court also entered judgment affirmeding the decision of the commissioner, and this appeal followed.

The six assignments of error may be summarized as follows: First, the superior court erred in adopting by reference certain conclusions of the appeal examiner that there is

nothing in the record which would justify a conclusion that the employer was violating the agreement with the union in asking the appellants to accept an assignment of 16 rooms,

that the employer was not 'unreasonable' in asking appellants to do 16 rooms, and that appellants' refusal to work 16 rooms was 'arbitrary.' Second, the superior court erred in adopting the conclusion of the appeal examiner and the commissioner that the actions of appellants constituted 'misconduct' as that term is used in the Employment Security Act. Third, the superior court erred in adopting by reference the commissioner's decision to the effect that by declining to act with 'prudence' and failing to accept their assignment subject to grievance procedures, appellants forfeited the right to unemployment compensation, and that 'an act of insubordination constitutes 'misconduct."

At the outset, we note that our review of the commissioner's decision, like that of the trial court, is governed by RCW 34.04.130 as amended by the 1967 legislature which change the standards for judicial review of administrative action to include the 'clearly erroneous' test and replaced the 'unsupported by material and substantial evidence' test. Thus, the limits of our review are broader in scope than a mere search to determine whether there is substantial evidence in the record to support the commissioner's decision. At the same time, the burden is on those attacking the findings of the commissioner to show that they are clearly erroneous in view of the entire record. See Ancheta v. Daly, 77 Wash.2d 255, 461 P.2d 531 (1969); Williams v. Young, 6 Wash.App. 494, 494 P.2d 508 (1972). In this regard, in Ancheta, our state Supreme Court said at 259 of 77 Wash.2d, at 534 of 461 P.2d The legislature clearly intended a broader review of all of the evidence. Perhaps the best description of the 'clearly erroneous' test was set forth by the United States Supreme Court in United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746, 766 (1948): 'A finding is 'clearly...