Nielsen v. Employment Sec. Dept. of State

• Decision Date: 05 November 1998
• Docket Number: 16408-0-II,Nos. 16407-1-II,16409-8-III,s. 16407-1-II
• Citation: 966 P.2d 399,93 Wn.App. 21
• Court: Washington Court of Appeals
• Parties: Erik H. NIELSEN, Janet K. Becker, Sharon A. Rasp, Appellants. v. EMPLOYMENT SECURITY DEPARTMENT OF The STATE of Washington, Westinghouse Hanford Company, Respondents.

Page 21

93 Wn.App. 21

966 P.2d 399

Erik H. NIELSEN, Janet K. Becker, Sharon A. Rasp, Appellants. v. EMPLOYMENT SECURITY DEPARTMENT OF The STATE of Washington Westinghouse Hanford Company, Respondents.

Nos. 16407-1-III, 16408-0-III, 16409-8-III.

Court of Appeals of Washington,

Division 3,

Panel Eight.

Nov. 5, 1998.

William B. Knowles, Matthew J. Bean, Law Offices of William B. Knowles P.S., Seattle, for Petitioners

Michael J. Killeen, Harry J. Korrell Iii, Davis Wright Tremaine, Derek

Edwards, Seattle, for Respondents

SWEENEY, Judge.

This is the consolidation of three appeals ¹ filed by Westinghouse Hanford Company workers who participated in an employer-sponsored Special Voluntary Reduction of Force program (SVROF), after Westinghouse announced 4,800 jobs would be eliminated at the Hanford Nuclear Reservation. Westinghouse offered the SVROF to satisfy a United States Department of Energy (DOE) mandated reduction in force. All of these claimants were denied unemployment compensation benefits because their participation in the SVROF was deemed a disqualifying voluntary quit under RCW 50.20.050. The question here is whether they "left work voluntarily without good cause" when they accepted the SVROF. We conclude that the Westinghouse SVROF fell within the Department of Employment Compensation's employer-initiated reduction-in-force exception to RCW 50.20.050, and that quits under such a program are not "voluntary." WAC 192-16-070.

FACTS

The National Defense Authorization Act of 1993, 42 U.S.C. sec. s7274h, authorized the DOE, in consultation with the responsible contractors, to develop a work force restructuring plan for operation of the DOE's Hanford Nuclear Reservation. In response, Westinghouse, the primary Phase I (December 1994)--an early retirement program;

contractor, developed a three-phase plan to eliminate 4,800 jobs:

Phase II (January 1995)--the first SVROF;

Phase III (April 1995)--the second round of SVROF and involuntary layoffs.

A third round of SVROF was implemented in January 1996. DOE approved the plan.

The SVROF offered employees several severance packages, including cash payouts based on length of service, relocation costs, and educational stipends. Westinghouse retained the right to select which employees would be accepted for SVROF.

John Wagoner, DOE's site manager, announced the second phase of the restructuring plan, the SVROF, on January 18, 1995:

We have today received approval from DOE Headquarters to begin the second phase of the program designed to reduce the Hanford work force to a level compatible with Fiscal Year 1995 budget authorizations. Therefore I am today authorizing the Hanford contractors to begin a voluntary separation program under which selected categories of contractor employees may volunteer to be separated from the rolls in exchange for an incentive package.

We anticipate that about 500 employees sitewide will take advantage of this offer.... The bulk of the separations will come from Westinghouse Hanford Company and its subcontractors....

Each contractor is notifying its employees in sitewide messages later today of which categories of employees are being offered the voluntary separation program and details of the program itself.

....

This is the second phase of a program designed to reduce the Hanford work force by up to 2,500 employees to meet the ....

FY 1995 budget levels. During the first phase completed in December, 843 of your colleagues took a voluntary early retirement program. The next phase, an involuntary separation program, is expected to begin shortly after the completion of the voluntary separation program....

... We appreciate the cooperation of the contractors and you, the Hanford staff members, in reducing the size of our staffs to meet budget limitations and our needs.

Rasp Commissioner's Record at 61-62 (emphasis added).

On the same day, LaMar Trego, Westinghouse's president, made the following announcement:

It is with mixed emotions that I announce that ... we were given DOE approval to offer a Special Voluntary Reduction of Force (SVROF) to Westinghouse Hanford, BCS Richland and ICF Kaiser Hanford employees.

....

Based on a thorough staffing and skills mix analysis, we have determined which specific job categories we must cut back on, and how many of those jobs we can eliminate....

Every volunteer will reduce the number of employees that might otherwise be laid off involuntarily. Of course, I cannot guarantee that there will be no involuntary layoffs; nor should you infer that you are exempted from future involuntary reductions or transfers to other departments if your current job category is not one of those being targeted for reduction.

The general provisions of the SVROF and request forms will be provided in a separate message to follow later today....

Requests to participate in the program can be submitted starting Monday, January 23, through Tuesday, January 31, on a first-come, first-served basis. If you think you might want to take advantage of this program, please carefully weigh all of your options so that the decisions you make about your future will be the best for you.

Rasp Commissioner's Record at 63-64 (emphasis added).

Erik H. Neilsen, ² a senior engineer, started at Westinghouse in July 1989. The number of workers in his department was reduced from 20 to about 18 in the first two rounds of layoffs. Mr. Neilsen took part in the third and final round of the SVROF, which was announced in January 1996. Westinghouse approved his application and auhorized his release. His last day of work was February 9, 1996. After Mr. Neilsen left, his position was eliminated. Neilsen Commissioner's Record at 31.

He applied for unemployment benefits in April 1996. Benefits were denied, on the ground he had quit voluntarily without good cause because the employer had not announced an involuntary reduction-in-force pursuant to WAC 192-16-070(1). Neilsen Commissioner's Record at 43. The denial was upheld by both the Administrative Law Judge (ALJ) and the Commissioner's Delegate.

Sharon A. Rasp started at Hanford in 1989. From April 1993 to April 1994, she supervised 15 to 17 employees as manager of public affairs. In April 1994, her position was eliminated, and she accepted temporary "special assignment" as a staff manager at the same rate of pay but with no supervisory duties. Her primary job was drafting communications to employees about the impending reduction-in-force. She perceived her new position as temporary and a loss of status.

Ms. Rasp applied for the January 1995 SVROF, opting for a cash payout based on length of service. At Westinghouse's request she extended her service twice, finally leaving on May 31, 1995, after the second SVROF and involuntary layoffs had commenced. Her total severance package equaled what she would have received had she been involuntarily terminated.

Ms. Rasp filed for unemployment benefits a year later, on March 27, 1996. The Tri-Cities Job Service Center also denied her benefits concluding that WAC 192-16-070 was inapplicable. The ALJ reversed, finding Ms. Rasp had good Janet K. Becker started with Westinghouse in March 1989. When she left, she was an administrative assistant with the Quality Assurance Central Support Group. She became concerned about her prospects with Westinghouse when she saw a proposed organization chart of her work group, which would cut it from 157 employees to 12 and eliminate her position. The organization char was not final. But Ms. Becker was told by her team leader, who prepared the budget information for the manager, that her hours would be reduced to part time as soon as a new budget was authorized, probably within two weeks. Ms. Becker's job was eliminated.

cause for a voluntary quit under RCW 50.20.050 independently of the WAC, because her position was eliminated, many of her responsibilities taken away, and her job security uncertain. The Commissioner's Delegate reversed the ALJ, concluding the quit was voluntary.

Ms. Becker did not ask the manager of Quality Assurance about the chart, the reduction in hours, or the prospects for continued employment in another department. She believed the team leader would get into trouble for giving her this information. Westinghouse took the position that reassignment within the company was available, and that nobody in Quality Assurance was involuntarily terminated.

Ms. Becker inferred from the proposed organization chart and her lack of an advanced degree that her termination was inevitable. She applied for the final SVROF in January 1996. Her application was approved. She took the $15,000 cash payout and left on February 9, 1996.

Ms. Becker applied for unemployment benefits on February 14, 1996. The Tri-Cities Job Service Center denied eligibility for voluntarily quitting without good cause because Westinghouse did not announce an involuntary reduction-in-force. This determination was upheld by both the ALJ and the Commissioner.

All three employees timely appealed the denial of

benefits. And the Benton County Superior Court certified the cases to this court.

DISCUSSION

We first review the issue common to all three appeals--whether the Employment Security Department Commissioner correctly characterized the unemployment of these claimants as voluntary and without cause.

A. Standard of Review. Our review is governed by RCW 34.05, the Administrative Procedure Act (APA). We review the findings and decision of the commissioner, not the underlying ALJ order. RCW 34.05.464(4); Tapper v. Employment Sec. Dep't, 122 Wash.2d 397, 405-06, 858 P.2d 494 (1993). The commissioner's decision is a conclusion of law reviewed de novo. Safeco Ins. Cos. v. Meyering, 102 Wash.2d 385, 390, 687 P.2d 195 (1984). While we give deference to the agency's interpretation of its own regulations, this court has the ultimate responsibility to see the rules are applied consistently with the policy underlying the statute. Id....