Shaw v. Employment Sec. Dept.

• Decision Date: 22 January 1987
• Docket Number: No. 7514-1-III,7514-1-III
• Citation: 731 P.2d 1121,46 Wn.App. 610
• Parties: William R. SHAW, III, Respondent, v. EMPLOYMENT SECURITY DEPARTMENT of the State of Washington, Appellant.
• Court: Washington Court of Appeals

Page 610

46 Wn.App. 610

731 P.2d 1121

William R. SHAW, III, Respondent, v. EMPLOYMENT SECURITY DEPARTMENT of the State of Washington, Appellant.

No. 7514-1-III.

Court of Appeals of Washington,

Division 3.

Jan. 22, 1987.

Kenneth O. Eikenberry, Atty. Gen., John M. Sells, Asst., Olympia, Duane M. Swinton, Witherspoon, Kelley, Davenport & Toole, Spokane, for appellant.

Kenneth Isserlis, Norman R. McNulty, Jr., Spokane Legal Services Center, Spokane, for respondent.

McINTURFF, Chief Judge.

The Employment Security Department (Department) appeals the Superior Court's reversal of its denial of unemployment benefits to William Shaw. RCW 50.20.060 disqualifies persons from benefits who are discharged "for misconduct connected with ... work." Mr. Shaw's conduct does not meet the definition of misconduct as adopted in this State. Thus, we affirm the Superior Court.

For purposes of appeal, Mr. Shaw does not challenge the findings of fact of the Department's commissioner. ¹ Those findings establish that Cowles Publishing Company (Company) employed Mr. Shaw as a truck driver from early 1980 until his discharge on August 18, 1984. The Company's schedule required that Mr. Shaw be at the loading dock with his truck ready to go by 12:45 a.m.

According to the written record maintained by his direct supervisor, Mr. Shaw was late to work 14 times during the 15 months from May 10, 1983, through August 17, 1984. The supervisor's record, which the commissioner found to be accurate, details the dates of Mr. Shaw's tardiness and his excuses, as follows:

1. May 10, 1983. Mr. Shaw is one half hour late

due to car problems.

2. June 11, 1983. Mr. Shaw does not report to

work at all due to car problems.

3. November 24, 1983. Mr. Shaw is unable to start car.

Supervisor picks him up.

4. November 30, 1983. Mr. Shaw is 20 minutes late

because a policeman stops him

on the way to work.

5. December 1, 1983. The log does not reflect a reason

for this tardiness.

6. December 2, 1983. He is late because he "did not

realize the time."

7. December 6, 1983. Mr. Shaw is late by

approximately 20 minutes.

8. January 21, 1984. He is late by approximately 30

minutes.

9. April 23, 1984. He is late by 15 minutes.

10. June 15, 1984. He is late by 15 minutes.

11. August 4, 1984. The log does not reflect how

late Mr. Shaw arrived at work,

nor the reason for his tardiness.

12. August 10, 1984. Again, Mr. Shaw's arrival time

and the reason for his tardiness

are not noted.

13. August 11, 1984. Mr. Shaw is approximately one

half hour late.

14. August 17, 1984. Mr. Shaw telephones at 1:10

a.m. and indicates he has just

awakened.

According to the log, his direct supervisor verbally warned Mr. Shaw on February 1, 1984, that his tardiness was considered excessive and that if it continued, his job would be in jeopardy. While not reflected in the log or in the commissioner's findings, both of his supervisors testified that they talked to Mr. Shaw "all the time" about his tardiness and that the last warning was given just days before he was terminated. The Company discharged him on August 18, 1984.

The findings further state that the last two instances of tardiness were beyond Mr. Shaw's control, i.e., a power failure had stopped his alarm clock. However, the commissioner found that overall, Mr. Shaw's reasons for his tardiness were not justifiable. The commissioner concluded:

The claimant's tardiness, in this case, was due to his own carelessness or negligence. That carelessness or negligence was of such a gross and repetitive degree as to evince a willful and wanton disregard of the best interests of the employer. We therefore conclude that the claimant's discharge was for misconduct within the meaning of the Employment Security Act.

Thus, the commissioner denied benefits pursuant to RCW 50.20.060.

Mr. Shaw appealed this decision to the superior court, which reversed; the department appeals.

Where the facts found by the commissioner are undisputed, as here, the "error of law" standard, RCW 34.04.130(6)(d), is the appropriate standard. Ciskie v. Department of Empl. Sec., 35 Wash.App. 72, 74, 664 P.2d 1318 (1983). "Whether these facts constitute 'misconduct' is properly viewed as a question of law." Ciskie, at 74, 664 P.2d 1318 (citing Daily Herald Co. v. Department of Empl. Sec., 91 Wash.2d 559, 588 P.2d 1157 (1979)). We apply the same standard to the commissioner's record as the superior court does and make our own independent determination. Rasmussen v. Department of Empl. Sec., 98 Wash.2d 846, 850, 658 P.2d 1240 (1983); Franklin Cy. Sheriff's Office v. Sellers, 97 Wash.2d 317, 323-24, 646 P.2d 113 (1982).

"Misconduct" is not defined in the Employment Security Act. In deciding what constitutes misconduct, our courts have utilized the definition set forth in Boynton Cab Co. v. Neubeck, 237 Wis. 249, 296 N.W. 636, 640 (1941):

[T]he intended meaning of the term "misconduct," ... is 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 reccurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good faith errors in judgment or discretion are not to be deemed "misconduct" within the meaning of the statute.

See Ciskie, 35 Wash.App. at 75, 664 P.2d 1318; Durham v. Department of Empl. Sec., 31 Wash.App. 675, 678-79, 644 P.2d 154 (1982); and Willard v. Employment Sec. Dep't, 10 Wash.App. 437, 444, 517 P.2d 973 (1974).

In Ciskie, 35 Wash.App. at 76, 664 P.2d 1318, the court held:

Not every deviation from the reasonable demands of an employer bars unemployment benefits. For example, ordinary negligence and good faith errors in judgment are not misconduct. Boynton Cab. Co. v. Neubeck, supra. The deviation must be such as to evince a willful or wanton disregard of the employer's interest. Willard v. Employment Sec. Dep't, supra [10 Wash.App.] at 445 .

"[P]ersistent or chronic ... tardiness, at least where ... without reasonable excuse ... or ... continued in the face of warnings by the employer, constitutes willful misconduct within the meaning of the statutes." See Annot., Discharge for Absenteeism or Tardiness as Affecting Right to Unemployment Compensation, 58 A.L.R.3d 674, § 3 at 685 (1974), and cases cited therein. For example, courts have found misconduct where the employee was late approximately 24 times in a 12-week period and where the employee was late approximately 50 percent of the time. American Process Lettering, Inc. v. Unemployment Comp. Bd., 50 Pa.Commw.Ct. 272, 412 A.2d 1123 (1980); Langlois v. Administrator, Unempl. Comp. Act, 24 Conn.Sup. 177, 188 A.2d 507 (1963). However, there are no general guidelines or "rules of thumb" that define when tardiness becomes chronic or excessive so as to fit within the definition of misconduct; each case must be judged on its own facts and circumstances. Cf. Anderson Motor Serv., Inc. v. Review Bd., 247 N.E.2d 541, 543 (Ind.App.1969) (making the same observation with regard to absenteeism).

Unquestionably, Mr. Shaw's record...