McIntyre v. Fort Vancouver Plywood Co., Inc., 2983-II
| Decision Date | 05 September 1979 |
| Docket Number | No. 2983-II,2983-II |
| Citation | 24 Wn.App. 120,600 P.2d 619 |
| Parties | Ralph E. McINTYRE, Appellant, v. FORT VANCOUVER PLYWOOD COMPANY, INC., Respondent. |
| Court | Washington Court of Appeals |
William C. Klein, Vancouver, for appellant.
James C. Hanken, Seattle, for respondent.
The plaintiff, Ralph E. McIntyre, appeals from a judgment dismissing his suit against Fort Vancouver Plywood Company, Inc. (hereinafter the Company) for breach of an employment contract. We affirm the dismissal.
The Company is a Washington business corporation which functions as a cooperative under its articles of incorporation and bylaws. In the spring of 1974, plaintiff applied to the Company and was approved for employment as a prospective shareholder. After successfully completing a probationary period, plaintiff was accepted for worker-shareholder status. He paid $26,500 for his stock in the Company. In February of 1975, he bid for, and was awarded, a position off-bearing veneer from the dryer. While in this position he was repeatedly admonished for his lack of effort and poor performance. He received two warning slips in May of 1975. They stated:
May 16, 1975. Reason for Warning: Unsatisfactory stacking of dry veneer on dry belt.
May 29, 1975. Reason for Warning: Incapable of offbearing dry belt. Being removed from job.
Both "pink slips" stated "3rd Warning Subject to Reprimand." Following the second slip, McIntyre was removed from his bid job and assigned to feeding veneer into the dryer. While in that position, he was further admonished for lack of effort and poor performance, including his performance on cleanup assignments. In November of 1975, McIntyre was assigned to offbearing clipped veneer. For 3 days he was admonished by his foreman for lack of effort. On the third day he received his third warning slip which stated:
Nov. 6, 1975. Reason for Warning: "encapable (Sic ) of offbearing 8' green chain. Putting forth little effort. Being referred to Board of directors. Off work until decission (Sic ) of Board.
Plaintiff was suspended from work. On November 11, 1975, the Board met and heard recommendations by two supervisors to terminate McIntyre. After interviewing McIntyre and considering the matter, the Board removed him from worker-shareholder status.
For the purposes of this decision we assume the validity of plaintiff's theory that because of the nature of the employment relationship, it was not terminable at will or without cause and that defendant had the burden of proving breach or failure of a condition of the employment contract. Morris v. Rosenberg, 64 Wash.2d 404, 391 P.2d 975 (1964). Cf. State ex rel. Schoblom v. Anacortes Veneer, Inc., 42 Wash.2d 338, 255 P.2d 379 (1953).
Plaintiff assigns 10 errors to the proceedings in the trial court, but there are only three basic issues: (1) whether McIntyre "refused" to work as that term is used in the Company's bylaw 21 and work rule 13.5; (2) whether he received fair notice of the lack of effort for which he was terminated; and (3) whether proper grounds for termination existed independently of the grounds set forth in the Company's bylaws and work rules.
Before proceeding to the issues as we see them, we wish to comment on the scope of our review as it is affected by the content of the assignments of error.
No single finding of fact is assigned as error and separately identified and set forth as required by RAP 10.3(g) and 10.4(c). Therefore, the findings are accepted as verities. 1 Bignold v. King County, 65 Wash.2d 817, 399 P.2d 611 (1965). The issues on review are therefore limited to whether the findings support the conclusions of law. Browning v. Browning,46 Wash.2d 538, 283 P.2d 125 (1955). Further, assignment of error No. 1 challenges conclusion of law Nos. 2, 3, 4 and 5, together with the judgment of dismissal as derived from the trial court's memorandum opinion. An assignment of error directed to a memorandum opinion is not a proper assignment of error. Sorrel v. Haight, 71 Wash.2d 390, 429 P.2d 212 (1967). An assignment directed to a conclusion of law does not bring up for review the facts upon which it is founded. Becwar v. Bear, 41 Wash.2d 37, 246 P.2d 1110 (1952).
Bylaw 21 of the shareholder's manual issued by the Company provides:
The board of directors at any regular or special meeting shall have the power by a majority vote to remove from working status any shareholder-worker whom they shall find to be physically or mentally unfit for such work, or Who refuses to do his work As outlined by the management.
(Italics ours.) Work rule 13.5 provides:
Any worker Who refuses to perform his job as outlined by the foreman, superintendent, or management Shall be given by the superintendent one week off work for the first offense, two weeks off work for the second offense, and one month off for the third offense.
(Italics ours.)
Plaintiff's basic contention is that his inactivity did not constitute refusal to work under bylaw 21, and alternatively, if it did constitute refusal, the Company failed to follow the procedure of graduated penalties set forth in work rule 13.5 for employees who refuse to work.
As to the first argument, plaintiff seems to discount anything but a verbal refusal to work. Under this interpretation, plaintiff could simply walk away from his job (which he did, according to the testimony of dryer supervisor Mark Johnson) without subjecting himself to sanctions for "refusal." Where one construction would make a contract unreasonable, and another equally consistent with the language would make it reasonable, the latter must be adopted. Patterson v. Bixby, 58 Wash.2d 454, 364 P.2d 10 (1961). See also Spahn v. Pierce County Medical Bureau, Inc., 7 Wash.App. 718, 502 P.2d 1029 (1972). The more reasonable construction of "refusal" to work includes refusal by conduct, as in the present case. There is ample evidence in the record that plaintiff stood around idly, wandered away from his assigned tasks, and put an unfair burden on his fellow workers.
Joseph Creull, a shift foreman for the Company, testified as follows:
Q Calling your attention to Mr. McIntyre's work on off bearing the dry belt, did you form any opinion as to his effort and capacity as an employee for Fort Vancouver?
A Yes, I reprimanded Ralph.
Q Do you have an opinion?
A Yes.
Q What is your opinion?
A Well Ralph actually would not try to do the job he was capable of doing. But I don't believe he would try to do it. Many times the feeds were not to par not up to standards.
Q Did you discuss this with Mr. McIntyre?
A I had many discussions with Ralph on that.
The time period of these discussions was from September of 1974 through May of 1975.
Myron Combelic, a shareholder and member of the Board of Directors, testified as follows:
Q Are you familiar with the events that led into the first warning slip?
A Yes I am.
Q Would you explain what happened?
A Somebody come to me and brought to my attention there was some real bad stacking being done on the dry belt. I should go take a look at that.
Q Were you familiar with the events that are involved in the second warning slip?
A Yes I am.
Q Just exactly what was taking place?
A If I may explain, the man up front is if he doesn't have any wood to off bear, it's his responsibility to pull the wood into the different piles as a grader markman which gives a man behind a better chance to off bearing, getting it straight. So he was just kind of standing there watching the wood go by. And what he did stack was not straight.
As the witness expressed it:
Well, he never seemed to really put forth the effort. I kind of phrase (it) like he was never hungry. He didn't appear as really ever had to work for a living. He just kind of was drifting along taking things as they came.
Mark Johnson, the dryer tender, testified that McIntyre never did his share of the work on the dryers, and would wander away from clean-up jobs to which he was assigned.
Mike Ball, green end foreman, testified as follows:
Q Would you tell what took place that caused the issuance of the third warning slip?
A Well, he was placed on the 8-foot green chain during the three days. I observed his work habits and they were very poor. And I received numerous complaints from the other green chain workers. And so I told Mr. McIntyre two or three times he was going to have to improve, work harder, just show more initiative. The following two days I didn't see any initiative at all. The other four guys had to do all the work. And I had gone to the superintendent on a couple of times and asked him to come down and watch and see what kind of problems I had. So he did come down and observed his work habits a couple times before we decided on the pink slip.
Richard Grenier, Jr., superintendent, testified concerning the same incident:
Q Do you recall the third warning slip?
A Yes I do.
Q Okay, what happened at that time?
A Mike Ball had called me down to the green end to observe Mr. McIntyre, and which I did. Mr. Ball and I stood down there for a lengthy time. I asked Mr. Ball at that time to go over and have a talk with Mr. McIntyre.
Q Did he?
A Yes, he said he did.
Q While you were present, did you issue a pink slip at that time?
A The first time, no.
Q How much longer before did you observe him a second time?
A Yes I did. Mr. Ball called me down again on the second time calling me down there. I watched him again at that time, is when I decided that the to issue a third pink slip.
A Because he was just standing there and not doing anything. He wasn't trying.
The foregoing testimony is substantial evidence that plaintiff, by his conduct, "refused" to work under bylaw 21. Its existence sustains defendant's burden to demonstrate cause for the discharge. Morris v. Rosenberg, supra.
As to the second prong of plaintiff's argument, it is uncontroverted that plaintiff was not penalized by graduated layoff...
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