Moore v. Unemployment Ins. Appeals Bd.

• Decision Date: 13 June 1985
• Citation: 215 Cal.Rptr. 316,169 Cal.App.3d 235
• Court: California Court of Appeals Court of Appeals
• Parties: Lawrence V. MOORE, et al., Plaintiffs and Appellants, v. UNEMPLOYMENT INSURANCE APPEALS BOARD, Defendant and Respondent, BECHTEL POWER CORP., Real Party in Interest. D001757.

Page 316

215 Cal.Rptr. 316

169 Cal.App.3d 235

Lawrence V. MOORE, et al., Plaintiffs and Appellants, v. UNEMPLOYMENT INSURANCE APPEALS BOARD, Defendant and Respondent BECHTEL POWER CORP., Real Party in Interest.

D001757.

Court of Appeal, Fourth District, Division 1, California.

June 13, 1985.

Review Denied Sept. 11, 1985.

[169 Cal.App.3d 238] Stephen A. Munkelt, San Diego, for plaintiffs and appellants.

John K. Van de Kamp, Atty. Gen., Henry Torres, Jr. and Laurie R. Pearlman, Deputy Attys. Gen., for defendant and respondent.

No appearance for real party in interest.

WORK, Associate Justice.

Lawrence V. Moore and Walter F. Whelan, Jr., appeal from an order denying their petition for a peremptory writ of mandamus to set aside a decision of the California Unemployment Insurance Appeals Board (Board) denying them unemployment compensation benefits on the ground they were discharged for misconduct under UNEMPLOYMENT INSURANCE CODE SECTION 1256¹. They contend the evidentiary record does not support the trial court's findings of misconduct, but shows their refusal to work was based upon a good-faith, reasonable fear for their safety within the work place. They also urge they were denied a fair hearing by the administrative law judge discouraging their use of the subpoena power. For the reasons which follow, we conclude the record does not support the trial court's findings of misconduct. We reverse the order.

FACTUAL AND PROCEDURAL BACKGROUND

Moore and Whelan are electrician members of Local 569 of the International Brotherhood of Electrical Workers. In July 1982, their names came up on the union hall waiting list, assigning them to Bechtel Power Corporation (Bechtel) at the San Onofre nuclear generating plant. They accepted the referral. Had they refused the assignment, they would have been placed at the bottom of the union hall list and would have faced approximately 6 to 12 weeks of unemployment before reassignment. ² Each man signed the union hall, job referral card stating: "I understand that I may be required to work in a radiation area at the Plant." Both men had worked for Bechtel at San Onofre on previous occasions and were familiar with the nature of the work, the various levels of radioactivity, and the risk of harm involved. They had received training to prepare them for radiation assignments. However, neither wanted to work within radioactive areas and accepted employment hoping to avoid assignments in such areas.

Both men were concerned about exposure to radiation or contamination, harboring substantial doubts regarding the safety and reliability of the employer's radiation monitoring system upon which they were required to rely. Through the news media and reports of coworkers, they learned of alleged safety violations and improper safety procedures relating to radiation exposure. The employer knew their concerns. In mid-August, each was advised the employer intended to terminate any employee who refused to work within radiation areas. Both continued to work outside radiation exposure areas until August 20, 1982, when Moore was reassigned to "red waste," a radiation area.

After determining the precise location of his assigned job, Moore told his supervisor he was afraid to work within the "red waste" area. When confronted by superintendent On August 24, Whelan also was reassigned to a radiation area within the chemistry lab. ⁴ He was ordered to sign a radiation exposure permit. After reading the permit, he asked the health physics personnel "what the story was on radiation contamination within the lab." A health physics man responded: " 'Well, at this time, there is no radiation or no contamination. But we really don't know what's in there because there's engineers and physicists coming in all the time making tests and we don't really know what the level is at any specific time.' So, he says, 'Well,' he says, 'you have to sign this before you go in.' " ⁵ Whelan then told his foreman what the health physics man stated, requested another assignment, but was refused. Superintendent Miller, being informed of the situation, told Whelan if he refused to go in there he would be fired. Whelan stressed he would do any other electrical work, but was told there was none. He was then terminated.

Miller, the building and trades representative and the foreman, he was told he was terminated for refusing to go in the work area. Moore replied: "Well, I want to make something very clear here. I'm not refusing to do the work. I can't go in the radioactive waste area because I'm afraid of the radiation." ³

The State Division of Labor Standards Enforcement investigated the discharges and found no real or apparent hazard within the work-assigned areas.

When Moore and Whelan filed for unemployment compensation benefits, the employment development department ruled they were not eligible for benefits because they had been terminated for misconduct for refusing assigned work. An appeal was heard by an administrative law judge, who considered documentary evidence and the testimony of electrical superintendent Bob Miller, Moore and Whelan. The judge sustained the department's conclusion, noting that benefit disqualification results from discharge for misconduct and that such misconduct exists where there is a substantial breach of duty owed to the employer with action showing a deliberate disregard for the employer's interests. The administrative law judge thus reasoned:

"If the claimants had not known that the work involved radiation, an assignment to such work would have provided the claimants with a valid reason for refusing such work. The issue is not whether the claimants have good cause for objecting to the work but whether they shall receive compensation for refusing to do something that they knew could occur at any time during their period of employment with the employer. They signed agreements at the time of the job referral that they would accept work that would be near radiation. The employer exercised its prerogative of assigning either of the claimants or any other employee to work that would be The Board adopted the findings and affirmed the decision of the administrative law judge. It made no additional findings of fact. Exercising its independent judgment on the administrative evidentiary record, the trial court denied Moore's and Whelan's petition for a peremptory administrative writ of mandamus pursuant to Code of Civil Procedure section 1094.5.

                near radiation.  In effect, the employer's request to do the work was reasonable and the claimants had, by their acceptance of the employment, waived any objection to doing that type of work.   By refusing to do the work in question, their refusal constituted a substantial disregard of the standards of [169 Cal.App.3d 241] behavior which the employer had the right to expect of them.  The discharges were for misconduct connected with work within the meaning of Sections 1256 and 1030 of the Code."  (Italics added.)
                

STANDARD OF REVIEW

We review the trial court's ruling denying the peremptory writ of mandate asking only whether its decision is supported by " 'substantial, credible and competent evidence.' " (Amador v. Unemployment Ins. Appeals Bd., 35 Cal.3d 671, 679, 200 Cal.Rptr. 298, 677 P.2d 224, quoting Lozano v. Unemployment Ins. Appeals Bd., 130 Cal.App.3d 749, 754, 182 Cal.Rptr. 6; accord Lacy v. California Unemployment Ins. Appeals Bd., 17 Cal.App.3d 1128, 1134, 95 Cal.Rptr. 566.) "However, 'where the probative facts are not in dispute, and those facts clearly require a conclusion different from that reached by the trial court, ... the latter's conclusions may be disregarded.' " (Amador v. Unemployment Ins. Appeals Bd., supra, at p. 679, 200 Cal.Rptr. 298, 677 P.2d 224; quoting General Motors Corp. v. Cal. Unemployment Ins. Appeals Bd., 253 Cal.App.2d 540, 545, 61 Cal.Rptr. 483; Lozano v. Unemployment Ins. Appeals Bd., supra, at p. 754, 182 Cal.Rptr. 6.)

THE TRIAL COURT'S DECISION MOORE AND WHELAN WERE NOT ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS IS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE

Moore and Whelan acknowledge the central issue here is whether they were guilty of "misconduct" within the meaning of section 1256 when they refused assignment to a radioactive work area. They contend the undisputed administrative evidentiary record establishes they entertained a good-faith, reasonable fear for their safety in refusing to work within the radioactive areas and thus were not guilty of misconduct. In other words, they assert the record demonstrates their good-faith, subjective belief there existed a substantial risk to their life and health in accepting the assignments in dispute. They concede their refusal of the assignments may have been sufficient basis for termination of employment, but urge there was an adequate basis to support their health concerns to establish good cause and satisfy the eligibility requirements for unemployment insurance benefits.

Section 1256 pertinently provides: "An individual is disqualified for unemployment compensation benefits if ... he or she left his or her most recent work voluntarily without good cause or ... he or she has been discharged for misconduct connected with his or her most recent work." The Supreme Court recently in Amador v. Unemployment Ins. Appeals Bd., supra, 35 Cal.3d 671, 678, 200 Cal.Rptr. 298, 677 P.2d 224, defined the term "misconduct" within the meaning of the Unemployment Insurance Code as being

"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 the employee's duties and obligations to his employer. On...