Gibson v. Department of Employment Sec.
| Citation | 758 P.2d 547,52 Wn.App. 211 |
| Decision Date | 15 August 1988 |
| Docket Number | No. 20599-4-I,20599-4-I |
| Parties | Kevin GIBSON, Walter G. Henrickson, Patty Marie Livsey, John W. Morgan, Leroy C. Scott, and Dana Stoneburner, Appellants, v. The DEPARTMENT OF EMPLOYMENT SECURITY, Respondent. |
| Court | Washington Court of Appeals |
Finley Young, Davies, Roberts, Reid & Wacker, Seattle, for appellants Kevin Gibson, et al.
Kenneth O. Eikenberry, Atty. Gen., and Thomas L. Anderson, Asst. Atty. Gen., Employment Sec. Div., Lacey, for respondent Com'r of Employment Sec. Dept. of State of Wash.
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Kevin Gibson, Walter Henrickson, Dana Stoneburner, Leroy C. Scott, Patty Marie Livsey, and John W. Morgan appeal a judgment of the trial court affirming a decision of the Commissioner of the Washington State Employment Security Department (Department). The Commissioner held that the claimants were discharged for "misconduct connected with [their] work" and therefore, pursuant to RCW 50.20.060, were disqualified from receiving unemployment compensation benefits. We reverse.
The six claimants were employed by Lockheed Shipbuilding & Construction Company in Seattle prior to their discharge on November 4, 1983, for failure to report to work.
Sometime in October 1983, Lockheed management became aware of a contract labor dispute between the Shipwrights Local 1184 and two subcontractors operating on Lockheed's premises. At 5:11 p.m. on Monday, October 31, 1983, a telegram was sent to the International Brotherhood of Boilermakers, Local 104, notifying them of the dispute and stating that due to an impending strike by the Shipwrights "subcontractor gates had been established" and that [a]ll other persons are required to use the main gate. You are requested to encourage your membership to report for work at Lockheed Shipbuilding in accordance with the meaning and intentions of Article 22 of the agreement. Those failing to do so will be subject to discharge.
Although it would have been possible for Lockheed to leaflet its employees regarding the possible strike, a procedure that had been utilized with regard to reporting on the status of contract negotiations, Lockheed did not use this leaflet process to advise its employees of the possibility of the subcontractor strike.
As they arrived for work on Wednesday morning of that week, November 2, 1983, the claimants observed pickets outside the main gate. Management representatives were inside the gate observing the activity. The signs being carried read "on strike," gave the Shipwrights local number, and had a handwritten portion stating "neutral gate observer." The claimants did not know what "neutral gate observer" meant, and talked to the pickets. The pickets told the claimants that they were a sanctioned picket line. The claimants realized that the dispute was between another union and the subcontractors, but felt they had both a duty and a right to honor what they believed to be a sanctioned picket line. 1
Some of the claimants spoke together outside the gate and at a restaurant across the street trying to decide the appropriate action to take in response to the pickets. They were confused and were unable to obtain definitive answers among themselves. They attempted to contact their union's business agent but were unable to do so. Each of them then called into Lockheed and informed the company that they would not be in that day because of the picket line. Several of them then proceeded to go to the union hall, but were again unable to obtain any definitive advice, so they went home. None of them knew about Lockheed's telegram to the union.
That afternoon, at around 1:30, the president of the local, Dan Mahoney, who was among those who had refused to cross the line, 2 received a telegram from the union's headquarters in Kansas City directing the Boilermakers to report for work. Some of the claimants returned to work that afternoon and others reported for work the following morning. 3 Upon arriving at work the next morning, all of them were called to a conference and put on indefinite suspension for violating the Lockheed Shipbuilding Code of Employee Performance and Conduct as well as Article 23.3 of the master labor agreement between the Boilermakers and Lockheed. Termination letters were issued on November 4, 1983.
The Employee Performance and Conduct Code reads in pertinent part as follows:
Discharge will also result for major or flagrant violations of Company regulations.... Some typical examples of behavior which normally will result in employee discharge are listed below.
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Actively creating, encouraging or participating in disorders, violence, work stoppages or any other activity with the intent to disrupt or interfere with the conduct of business by the company or the performance of working duties by company personnel.
Relevant sections from the master labor agreement read as follows:
22.1 (STRIKES AND LOCKOUTS BARRED) There shall be no lockouts on the part of the Company, nor suspension of work on the part of the employees. This Agreement is a guaranty that for its duration there will be neither strikes nor lockouts, and that all complaints, grievances, or disputes arising under its provisions will be settled pursuant to its grievance machinery, Article 23, "Grievances and Complaints" and Article 24, "Arbitration of Disputes."
23.3 (GRIEVANCES AND COMPLAINTS) No employee shall refuse to work or otherwise curtail production or engage in any slow down or interfere with Company's operation because of any complaint, dispute, or grievance which he may have.
The claimants, including a former chief shop steward, claimed no knowledge of the company code of conduct. 4 A management representative testified that the company code was implemented in December of 1982, and was posted on bulletin boards throughout the company.
An administrative law judge heard the claims and held that benefits should be allowed. The company petitioned for review and the Commissioner of the Department reversed the administrative law judge. The Commissioner held that the claimants were discharged for misconduct connected with their work and were therefore not entitled to unemployment benefits, pursuant to RCW 50.20.060. The claimants appealed that decision to the superior court, which affirmed the Commissioner.
Judicial review of decisions of the Commissioner of the Employment Security Department is to be in accordance with RCW 34.04.130 of the Administrative Procedure Act (APA). RCW 50.32.120. RCW 34.04.130(6) provides:
The court may affirm the decision of the agency or remand the case for further proceedings; or it may reverse the decision if the substantial rights of the petitioners may have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(a) in violation of constitutional provisions; or
(b) in excess of the statutory authority or jurisdiction of the agency; or (c) made upon unlawful procedure; or
(d) affected by other error of law; or
(e) clearly erroneous in view of the entire record as submitted and the public policy contained in the act of the legislature authorizing the decision or order; or
(f) arbitrary or capricious.
The duty of the reviewing court is to search the entire record for facts both supportive of and contrary to the agency's findings. Franklin Cy. Sheriff's Office v. Sellers, 97 Wash.2d 317, 324, 646 P.2d 113 (1982), cert. denied, 459 U.S. 1106, 103 S.Ct. 730, 74 L.Ed.2d 954 (1983) (citing Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951)). With regard to factual determinations, the APA's clearly erroneous standard of review governs. Franklin Cy. Sheriff's Office, 97 Wash.2d at 324, 646 P.2d 113. This clearly erroneous test replaced an earlier substantial evidence test, indicating the Legislature's intent to allow broader, more intensive review of an agency's factual determinations. Ancheta v. Daly, 77 Wash.2d 255, 259, 461 P.2d 531 (1969). A finding is "clearly erroneous"
when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.
The "error of law" standard of RCW 34.04.130(6)(d) is the standard to be applied to issues of law. Franklin Cy. Sheriff's Office, 97 Wash.2d at 325, 646 P.2d 113. Under this standard, the reviewing court essentially substitutes its judgment for that of the administrative agency, since issues of law are the responsibility of the judicial branch to resolve. Franklin Cy. Sheriff's Office, 97 Wash.2d at 325, 646 P.2d 113. Deference is to be given however, to the expertise of the administrative agency. Ancheta, 77 Wash.2d at 260, 461 P.2d 531. For example, "the agency's construction of statutory words and phrases and legislative intent should be accorded substantial weight". Overton v. Economic Assistance Auth., 96 Wash.2d 552, 555, 637 P.2d 652 (1981).
Mixed questions of law and fact, that is, issues that involve the propriety of inferences drawn by an agency, or the process of comparing and applying the correct law and the correct facts to determine legal consequences shall be reviewed de novo. Franklin Cy. Sheriff's Office, 97 Wash.2d at 329-30, 646 P.2d 113. De novo review in such situations is again based on the inherent authority of this court to determine the correct law. Franklin Cy. Sheriff's Office, 97 Wash.2d at 330, 646 P.2d 113.
The Legislature has declared that the unemployment compensation statute "shall be liberally construed for the purpose of reducing involuntary unemployment" and that funds are "to be used for the benefit of persons...
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