DO NOT CITE. SEE RAP 10.4(h).
Court of Appeals Division I
State of Washington
Opinion Information Sheet
Docket Number: 43805-1-I
Title of Case: In RE Debbie Griswold: Albertsons, Inc., Appellant
v.
Employment Security, St of Wa, et al, Respondents
File Date: 05/22/2000
SOURCE OF APPEAL
----------------
Appeal from Superior Court of King County
Docket No: 97-2-29871-7
Judgment or order under review
Date filed: 11/16/1998
Judge signing: Hon. Michael S. Spearman
JUDGES
------
Authored by Ann L. Ellington
Concurring: Mary K. Becker
Marlin J Appelwick
COUNSEL OF RECORD
-----------------
Counsel for Appellant(s)
Patrick M. Madden
Bogle & Gates Pllc
701 5th Ave Ste 5000
Seattle, WA 98104-7078
Stephanie W. Pickett
701 5th Ave Ste 5000
Seattle, WA 98104-7078
Counsel for Respondent(s)
Gwendolyn Howard
Asst Attorney General Licensing Division
Office of the Atty Gen.
900 4th Ave., Ste 2000
Seattle, WA 98164-1001
Howard K. Todd
5508 35th Ave NE Ste 102
Seattle, WA 98105-2312
IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
In re: Debbie Griswold, )
ALBERTSON'S, INC., ) No. 43805-1-I
)
Petitioner, ) DIVISION ONE
)
v. )
)
EMPLOYMENT SECURITY DEPARTMENT ) UNPUBLISHED OPINION
OF THE STATE OF WASHINGTON, )
) FILED:
Respondent. )
)
ELLINGTON, J. -- Debbie Griswold was fired from her job as a meat wrapper
at Albertson's, Inc. because she purchased outdated meat at a marked down
price. When Griswold applied for unemployment compensation benefits under
the Employment Security Act (ESA), Albertson's contested her eligibility,
arguing she was terminated for disqualifying misconduct. The commissioner
disagreed, but denied benefits on the ground that Griswold's search for
work outside the grocery business was such that she was not 'available for
work.'
We hold that Griswold's purchase of the meat did not constitute
disqualifying misconduct because Albertson's written policies suggested
such purchases were appropriate with proper authorization, and the purchase
of past pull-date meat by employees was routinely authorized and encouraged
by Griswold's immediate supervisor. Her conduct was thus not in willful
disregard of her employer's interest. We further hold that Griswold was
available for work because she was seeking suitable work and had placed no
restrictions on her search that seriously affected her chances of becoming
employed. Accordingly, we affirm the commissioner's decision as to
misconduct, reverse the decision as to Griswold's availability for work,
and reinstate Griswold's unemployment benefits.
FACTS
Debbie Griswold worked for Albertson's for five years as a meat wrapper.
After she purchased past pull-date meat at a marked down price, Albertson's
terminated her. Griswold applied for unemployment benefits and the
Employment Security Department (ESD) awarded benefits. Albertson's
appealed, alleging Griswold violated company policy against unauthorized
possession of merchandise and thereby committed willful misconduct.
The administrative law judge (ALJ) found that the purchase of meat made
openly by Griswold on March 28, 1997 was common practice ('meat had been
purchased in this manner many times before by the claimant and other
employees in the store'), and that no objection had previously been lodged
against the practice. The ALJ further found as follows:
4. As a meat department worker, the claimant took direction from the
meat department managers. Throughout her period of employment, she had
been instructed by various meat department managers including Mr. Les
Varga, the meat department manager until February 1997, to price meat for
substantially reduced amounts for sale to Albertson's employees only. The
claimant and others purchased the deeply discounted meat on a routine
basis. Mr. Varga was replaced by Mr. Fred Lamuth.
5. The interested employer policy prohibits the purchase of past pull-
date meat at discounts by employees. However, meat department managers
allowed such purchases to increase their monthly sales total. The claimant
had received no prior warnings for violations of this policy. At the time
she purchased the deeply discounted meat in March 1997, she believed she
was following the established practice which allowed such purchases.
Following the claimant's discharge, Albertson's specifically instructed
meat market managers to discontinue this practice.
6. The testimony of the parties conflicted on material points. The
undersigned, having carefully considered and weighed all the evidence,
including the demeanor and motivation of the parties, the reasonableness of
the testimony, and the totality of the circumstances presented resolves
conflicting testimony in favor of the claimant. The testimony of Mr. Fred
Lamuth was not credible.
7. During the weeks at issue, the claimant was able to, available for and
actively seeking work. She refrained from seeking work in the grocery
industry due to the events which had resulted in her job separation.
Griswold has worked in bookkeeping and accounting and has sought work in
this field. She contacted approximately three employers per week by
resume. She received no specific direction from the Department with regard
to her job search.
The ALJ concluded Griswold had not been terminated for misconduct and was
available for work.
Albertson's appealed to the ESD commissioner. The commissioner adopted the
ALJ's first six findings and her conclusion that Griswold was not fired for
disqualifying misconduct. Instead of adopting the ALJ's finding regarding
Griswold's work search, however, the commissioner entered the following
additional finding:
Over the past ten years, the claimant's employment has consisted of working
as a meat wrapper in meat delicatessens. Prior to that period, she was a
grocery buyer and ran a general store. In her current work search, the
claimant is not seeking work in the grocery industry. The claimant is
seeking work in the accounting and bookkeeping field. It is not indicated
on the record that she has any training or experience in the accounting or
bookkeeping fields.
The commissioner concluded Griswold was ineligible to receive unemployment
benefits because she did not seek employment in the grocery industry,
rendering herself not 'available for work.'
Both Albertson's and Griswold sought judicial review of the commissioner's
decision. The two actions were consolidated. The superior court affirmed
the commissioner's conclusion that Griswold did not engage in disqualifying
misconduct, reversed the commissioner's conclusion that Griswold was not
available for work, reinstated Griswold's unemployment benefits, and
awarded Griswold attorney fees and costs.
DISCUSSION
The purpose of the Employment Security Act (ESA) is to set aside funds for
an unemployment reserve 'to be used for the benefit of persons unemployed
through no fault of their own.'1 The ESA is 'to be liberally construed for
the purposes of reducing involuntary unemployment and the suffering caused
thereby to the minimum.'2
In an appeal from an ESD decision, this court applies the appropriate
standards of review directly to the agency record under the Administrative
Procedure Act (APA).3 We grant relief from such decisions when an agency
erroneously interpreted or applied the law, the decision was not supported
by substantial evidence, or the decision was arbitrary or capricious.4 The
burden of proving that the agency action was invalid for any of these
reasons lies with the party challenging the action.5 'Because we review
the record and the administrative findings and conclusions on the same
basis as the Superior Court, findings of fact and conclusions of law
entered by the Superior Court are superfluous.6
The APA also describes the procedures by which agencies conduct internal
review of lower officials' adjudicative decisions. Upon petition for
internal review, agency heads may substitute their own findings for those
made by the hearing officers, as the commissioner did here.7 To the extent
the ALJ's findings are modified or replaced by those of the commissioner,
it is the commissioner's findings that are relevant to our review.8 Here,
except for the substitute finding and additional conclusion entered by the
commissioner as indicated above, the ALJ's findings were adopted by the
commissioner. Only one of the adopted findings is challenged, as discussed
below.
Misconduct
Whether an employee's actions constitute misconduct is a mixed question of
law and fact.9 'On mixed questions of law and fact, we determine the law
independently and then apply the law to the facts as found by the agency.'10
Factual findings are
reviewed for substantial evidence sufficient to persuade a reasonable
person that the declared premise is true.11 This court gives great
deference to the commissioner's factual findings and substantial weight to
the agency's interpretation of the law.12
Griswold assigns error to part of one finding of the ALJ (adopted in its
entirety by the commissioner), that the 'interested employer policy
prohibits the purchase of past pull-date meat at discounts by employees.'
Griswold did not cross-appeal because she prevailed in the trial court.
This procedure is consistent with RAP 10.3(h). Albertson's challenges only
the commissioner's conclusion that Griswold's actions did not constitute
disqualifying misconduct.
Under the ESA, an individual who is discharged for 'misconduct connected
with his or her work' is disqualified from receiving unemployment benefits.13
Misconduct is defined as 'an employee's act or failure to act in willful
disregard of his or her employer's interest where the effect of the
employee's act or failure to act is to harm the employer's business.'14 In
adopting that definition, the Legislature intended to ensure that benefits
would be denied only where the employee's conduct was both willful and
harmful to the employer.15 An employee acts with willful disregard 'when he
{or she} (1) is aware of his {or her} employer's interest; (2) knows or
should have known that certain conduct jeopardizes that interest; but (3)
nonetheless intentionally performs the act, willfully disregarding its
probable consequences.''16 Mere incompetence, bad judgment, or negligence
does not constitute disqualifying misconduct.17
Albertson's bases its argument on several written policies, which it claims
clearly prohibit employee purchases of past pull-date meat. First, new
employees are required to read and sign a form acknowledging causes for
immediate dismissal without prior warning. One such cause is 'unauthorized
possession of or willful destruction or damage to Company funds, property
or merchandise.' Griswold signed this form in 1992.
Second, Albertson's employee handbook contains a provision regarding
employee purchases of merchandise, which reads in relevant part:
Employees must pay the same purchase price for merchandise as our
customers. We do not permit employee discounts.
. . . .
Employees may mark down distressed and out-of-code product only if they
have received prior approval by the department manager. In no event may an
employee or department manager mark down any type of product at any time
for his or her purchase or the purchase of other employees, friends and/or
relatives. Department managers must receive the approval of the store
director or person in charge of the store prior to marking down distressed
or out-of-code product for employees, friends and/or relatives.
Griswold acknowledged receipt of the handbook by her signature.
Third, a November 18, 1996 memorandum to meat department managers and
employees explained Albertson's policy for dating, pulling, and selling
fresh meat. After a certain time, depending on the type of meat, employees
are instructed to 'pull {it} from display and throw it out. It is waste,
it cannot be sold in any form to our retail customers.' Griswold signed
her understanding of and agreement to comply with the policy. Albertson's
particularly focuses on this memorandum, arguing it is 'unambiguous' and
clearly establishes Albertson's policy that past pull-date meat must be
thrown away and cannot be marked down for retail customers or purchased by
employees at a markdown.
Finally, Griswold signed her understanding of Albertson's 'Food Safety and
Sanitation Training Update #3, Food-Borne Illness' in which three types of
food contamination are explained, as well as methods for preventing
hepatitis A.
In addition to these documents, Albertson's relies on the testimony of
Griswold's store director and meat manager. While store director Peter
Carley testified that the policy prohibits sale of past pull-date meat to
employees, he also testified that the handbook entitles employees to
properly authorized markdowns on past pull-date products not available to
retail customers, and that he is aware his statement as to the meat policy
is in conflict with the handbook.
Griswold's meat manager, Fred Lamuth, testified he never discounted past
pull-date meat for his employees, and never authorized the discount of past
pull-date meat. But the unchallenged finding was that the 'testimony of
Fred Lamuth was not credible.'18 Albertson's reliance on Lamuth's testimony
is thus misplaced.
We first observe that the policies appear to permit, not prohibit,
purchases of past pull-date meat by employees where authorized by the
department manager. The employee handbook contains a general statement
that employees must pay the same price as retail customers, that employee
discounts are not permitted. But it then specifically provides that
markdown of 'distressed and out-of-code product for employees' may be
authorized by the department manager with approval of the store director.19
The apparent meaning of these two sections is that there is no automatic
employee discount, but products that cannot be marketed to the public
because they are past their 'pull dates' may be marked down for employees.
The unchallenged finding is that Griswold's department managers routinely
authorized employee purchases of past pull-date meat, and that many
employees made such purchases.
Albertson's argues that even if Griswold's manager authorized the purchase,
'all that can be said is that both the manager and Griswold violated the
{c}ode {d}ating {p}olicy.' While the handbook requires that the department
manager first obtain approval of the store director, the individual
employee is unlikely to be a party to such communication, and there was no
evidence that Griswold had notice of any lack of authority on the part of
her department manager. Albertson's does not explain how the employee is
to discern whether the manager has followed the handbook procedures, or why
the employee should not be able to rely on the handbook without making
further inquiries.
As to the code dating policy, which is the memorandum requiring past pull-
date meat be thrown out and not sold to retail customers, its meaning is
uncertain. At least two employees testified that 'thrown out' in the
memorandum meant the product could not be sold to retail customers. At
least one employee testified that he purchased discounted past pull-date
meat from store director Carley at Carley's checkstand. Carley testified,
however, that the term 'retail customers' includes employees. If so, it is
unclear why the handbook treats them differently.
Relying on Galvin v. Employment Sec. Dep't,20 Albertson's argues that even
assuming Griswold's manager had authorized her purchases, Griswold was not
entitled to rely on such authorization in the face of company policy to the
contrary. Galvin does not stand for the proposition Albertson's believes.
In Galvin, an employee's immediate supervisor told his work crew that, in
his opinion, it was not necessary to obtain advance approval of all
vacations, as the employer's policies required. Galvin argued that her
failure to obtain advance approval thus did not constitute misconduct. We
rejected her argument because she had a long history of absenteeism, had
been repeatedly warned about unscheduled vacations, and had been required
to attend monthly reviews of her attendance with her supervisor's superior
as a condition of continued employment. Her supervisor's superiors had
'repeatedly, clearly, . . . . and unequivocally' communicated to her
personally that she must schedule her vacations in advance as a condition
of continued employment.21 In the face of such personally communicated
insistence that Galvin herself must comply with the notice requirements, we
held she could not rely on her immediate supervisor's willingness to forego
it for his crew. Galvin did not address whether an employee could ever
rely on a manager's decision made in apparent contradiction to the formal
policies of the employer.
In any event, the facts here are not similar. Griswold had not been
subject to disciplinary action and had received no prior warnings. Nor had
her supervisor authorized a practice that appeared to depart from company
policy. Rather, her supervisor instructed her to price the meat at
substantial discounts for Albertson's employees, in part to increase the
department's sales figures. In doing so, her supervisor appeared to be
acting within company policy, not outside it.
Albertson's also relies on City of Picayune v. Mississippi Empl. Sec.
Comm'n, in which the Mississippi Supreme Court held an employee engaged in
disqualifying work-connected misconduct when she accepted $700 worth of
collect telephone calls at work, allegedly with permission from her
supervisors.22 Albertson's reliance here is also misplaced. Even assuming
Mississippi unemployment compensation law resembles Washington law, the
employer in City of Picayune issued numerous directives unequivocally
prohibiting the conduct in which the employee engaged.23
The ALJ and the commissioner both found that Albertson's policy prohibited
employee purchase of past pull-date discounted meat. Griswold assigns
error to this part of the findings. As discussed, the clarity of
Albertson's policies is highly debatable, but we need not determine that
the finding is in error because, made as it was in the context of a
conclusion that no misconduct occurred, it is in effect a finding of
corporate policy and not a finding that the policy was known to employees
or enforced by managers -- quite the contrary, especially when read with
the other findings regarding routinely authorized purchases.
Finally, even if corporate policy were clear in this regard, Griswold's
violation of the policy would be willful misconduct only if she knew her
violation jeopardized her employer's interests.24 Regarding the company's
interests, Albertson's points to its potential liability to those consuming
the meat should it be no longer fit for consumption, and describes
Griswold's purchase of the meat as callous disregard for the safety of
others constituting gross negligence. Albertson's argument assumes too
much. The record does not establish the relationship between pull dates
and spoilage, nor, given the long history of these purchases, why the
dangers described by Albertson's have never materialized in the form of
injury. Albertson's does not explain why an employee observing the
frequency of these authorized purchases should conclude the company's
interests were violated by a practice which benefited the company's sales
figures.
In sum, Albertson's written corporate policies were at best unclear, and
were inconsistent with company practice. Because the written directives
appear to authorize a manager to permit the employee's conduct, the
commissioner did not err in refusing to fault the employee for engaging in
a common practice encouraged and authorized by the manager. Such conduct
does not constitute willful disregard of the employer's interests so as to
disqualify Griswold from unemployment benefits. The ALJ, the commissioner,
and the superior court all found no misconduct here, and we agree.
Availability for Work
Under the ESA, an unemployed individual is eligible for benefits if:
He or she is able to work, and is available for work in any trade,
occupation, profession, or business for which he or she is reasonably
fitted. To be available for work an individual must be ready, able, and
willing, immediately to accept any suitable work which may be offered to
him or her and must be actively seeking work pursuant to customary trade
practices and through other methods when so directed by the commissioner or
the commissioner's agents.25
'Suitable work' is defined as:
{E}mployment in keeping with the individual's prior work experience,
education, or training. If the individual lacks such prior work
experience, education, or training or such employment is not available in
the general area{,} suitable work shall include any employment which the
individual would have the physical and mental ability to perform.26
The question is whether, given Griswold's prior work experience, she was
seeking 'suitable work' and therefore was 'available for work' as required
by the ESA.
The ALJ found that Griswold was available for and actively seeking suitable
work, but the commissioner found to the contrary because, 'It is not
indicated on the record that she has any training or experience in the
accounting or bookkeeping fields.'
Griswold challenges the commissioner's finding regarding her lack of
experience in accounting or bookkeeping. The only evidence on this point
came from Griswold, who testified that she ran a general store for seven
years and did its books. She testified she was seeking similar work, in
part because she doubted she could find work in the grocery industry after
her termination by Albertson's.
Griswold's concerns about finding work in the local grocery business appear
to have a basis in fact. After discharging Griswold, Albertson's contacted
the police. In Griswold's 'Statement on Discharge from Work' submitted to
the ESD, Griswold wrote that her former boss thought she had been fired for
theft. At least one Albertson's employee testified before the ALJ that he
had been told Griswold had been fired for stealing, and when he asked meat
manager Lamuth about it, Lamuth replied, '{I}t depends {on} what you call
stealing.'
The commissioner apparently disregarded Griswold's previous work experience
because it did not rise to the level of professional accounting. This was
not the gist of the testimony, however. The term 'accounting' was not used
by Griswold in that narrow sense, but rather to describe her work keeping
books for a general store. Because the commissioner's additional finding
is not supported by substantial evidence and the vacated finding of the ALJ
is so supported, we vacate the commissioner's finding and reinstate the
ALJ's finding of fact 7. We hold that Griswold was seeking suitable work.
The remaining issue is whether the findings support the commissioner's
conclusion that Griswold was not available for work. Both the ALJ and the
commissioner based their decisions on Jacobs v. Office of Unemployment
Compensation and Placement, in which the Supreme Court held that a claimant
was unavailable for work because she restricted her job search to daytime
employment, failed to meet her burden of showing she had transportation if
work were offered, and failed to show that she actively sought work as
required under the statute.27 In reaching its decision, the court reviewed
nationwide authority, which generally denied benefits to claimants who
placed geographic and specific shift restrictions on their searches.28
Griswold did not restrict her search in this manner, however, so Jacobs is
not particularly helpful.
The commissioner also relied on Arima v. Employment Sec. Dep't, where this
court held that an academic year (nine-month) school district employee was
ineligible for unemployment benefits during the summer months because she
limited her job search to those months.29 The court noted that in such a
case, 'granting such benefits would be inconsistent with the fundamental
concept of a program which is designed to act as a buffer or hedge against
the ravages of sudden and unexpected loss of one's livelihood.30 Again,
this case is not particularly helpful.
As the ALJ and commissioner both recognized, the question is whether
Griswold placed restrictions on her availability for work that would
seriously affect her chance of becoming employed. We hold she did not.
She requested assistance from her union in obtaining reinstatement at
Albertson's or employment in other grocery stores, declared her eligibility
for work as a meat wrapper, and otherwise applied for bookkeeping positions
commensurate with her experience. She did not place geographic or time
constraints on her search for employment, never refused offers of
employment, and did not refuse job referrals. At no time did she indicate
she would refuse a job in the grocery field -- she indicated merely that
she expected a cold reception in the industry, for which expectation she
had a reasonable basis. Finally, she received no specific direction from
the ESD regarding her job search.
Griswold's job search satisfied the statutory requirements. The
commissioner's additional conclusion of law is not supported by the
evidence and erroneously states the law, and it is therefore vacated. We
reinstate the ALJ's conclusion of law 8, and hold Griswold is eligible for
benefits under RCW 50.20.010(3).
Attorney Fees
Albertson's petitioned for judicial review of the commissioner's conclusion
that Griswold did not engage in misconduct. Griswold cross-petitioned for
judicial review of the commissioner's conclusion that she was not
'available for work.' The petitions were consolidated as a result of an
uncontested motion by ESD. The superior court reversed the commissioner's
ruling as to availability for work and affirmed the ruling as to
misconduct, a result entirely favoring Griswold on both issues. The court
granted Griswold's request for attorney fees under RCW 50.32.160 in the
amount of $13,132. Albertson's challenges the award of fees to the extent
it compensates Griswold's attorney for responding to Albertson's appeal of
the commissioner's decision on the misconduct issue, arguing such fees are
not authorized by RCW 50.32.160.
Whether a statute authorizes attorney fees is a question of law subject to
de novo review.31 Once entitlement to attorney fees is established, a trial
court has broad discretion in determining the amount of attorney fees to be
awarded, so long as the award is reasonable.32 Reasonableness of the amount
is reviewed for an abuse of discretion.
Under RCW 50.32.160, a claimant for unemployment benefits is entitled to
reasonable attorney fees and costs if the decision of the commissioner is
reversed or modified on appeal to the courts:
It shall be unlawful for any attorney engaged in any appeal to the courts
on behalf of an individual involving the individual's application for
initial determination, or claim for waiting period credit, or claim for
benefits to charge or receive any fee therein in excess of a reasonable fee
to be fixed by the superior court in respect to the services performed in
connection with the appeal taken thereto and to be fixed by the supreme
court or the court of appeals in the event of appellate review, and if the
decision of the commissioner shall be reversed or modified, such fee and
the costs shall be payable out of the unemployment compensation
administration fund. In the allowance of fees the court shall give
consideration to the provisions of this title in respect to fees pertaining
to proceedings involving an individual's application for initial
determination, claim for waiting period credit, or claim for benefits. In
other respects the practice in civil cases shall apply.33
The purpose of this provision, when read with RCW 50.32.100 and RCW
50.32.110,34 is 'to provide for regulation of attorney fees incurred in
relation to administrative or court proceedings.'35 '{W}hen the
commissioner erroneously denies unemployment compensation, the subsequent
fees and costs incurred in court proceedings are compensable from state
funds.'36
The language of the statute is not a model of clarity, but it casts a broad
net. Albertson's was seeking to reverse the commissioner's decision that
no disqualifying misconduct occurred. In responding on her behalf,
Griswold's attorney was engaged in an appeal involving her claim for
benefits.
The real thrust of Albertson's argument is that because Albertson's did not
obtain a reversal or modification of the commissioner's decision on the
misconduct issue, no fees are awardable for Griswold's attorney's work on
that issue. This argument makes sense only if the statute contemplates
that where a claimant is partially successful and partially unsuccessful
and both parties appeal, fees incurred defending the employer's appeal must
be considered separately from fees incurred prosecuting the claimant's
appeal. The statute contains no such requirement. It plainly provides for
fees on appeal if the commissioner's decision is reversed. It was. A fee
determination under the statute is not made by parsing the commissioner's
decision and the parties' issues to determine which issue each argued and
upon which each prevailed. The plain intent of the Legislature is that a
successful claimant appellant shall have fees on appeal.37 Griswold was
successful because she prevailed on her appeal and successfully defended
against Albertson's appeal. Albertson's argument not only contravenes
legislative intent, it would discourage consolidated appeals, burden
judicial resources, and create confusion. Griswold was entitled to
reasonable fees incurred in superior court.
Albertson's also argues that Griswold's attorney was, at least as to
Albertson's appeal on the misconduct issue, a 'mere volunteer,' and
therefore an award of fees for his work on the issue is not reasonable.
Whether fees are awarded for particular services is a indeed a
reasonableness question, and thus lies within the trial court's sound
discretion.38 It was for the superior court to determine whether and to
what extent Griswold's attorney added value to the debate by his work on
her behalf. Albertson's has pointed to nothing in the record suggesting
that Griswold's attorney merely offered cumulative argument, and relies
instead on the general proposition that fees were inappropriate because
another party also defended the commissioner's decision on that issue. But
it is not self-evident that an individual's attorney could have nothing by
way of additional argument to add to the work of the assistant attorney
general, whose client is the commissioner and whose objective is affirmance
of the agency decision, not to ensure benefits are awarded.39 Albertson's
has not shown the trial court abused its discretion, and we decline to
disturb the fee award.
In light of our decision, we grant Griswold's request for fees and costs on
appeal under RCW 50.32.160.40 Griswold is instructed to comply with RAP
18.1(d).
CONCLUSION
We affirm the commissioner's decision that Griswold did not engage in
disqualifying misconduct but reverse the commissioner's decision that
Griswold is
ineligible for benefits because she was unavailable for work. We thus hold
Griswold is eligible for benefits and affirm the superior court's decision
to that effect, as well as its award of attorney fees. Finally, Griswold's
request for attorney fees on appeal is granted.
WE CONCUR:
1 RCW 50.01.010.
2 RCW 50.01.010.
3 RCW 34.05.570; Dermond v. Employment Sec. Dep't, 89 Wn. App. 128, 132,
947 P.2d 1271 (1997).
4 RCW 34.05.570(3).
5 RCW 50.32.150; RCW 34.05.570(1)(a).
6 Valentine v. Department of Licensing, 77 Wn. App. 838, 844, 894 P.2d 1352
(1995) (citing Durham v. Employment Sec. Dept, 31 Wn. App. 675, 676, 644
P.2d 154 (1982)). Albertson's assigns error to the findings of fact and
conclusions of law entered by the trial court, in addition to the
commissioner's conclusions. We confine our review of these issues to the
agency's findings and conclusions. Valentine, 77 Wn. App. at 844 n.2
(citations omitted).
7 RCW 34.05.464; Valentine, 77 Wn. App. at 844.
8 Valentine, 77 Wn. App. at 844.
9 Dermond, 89 Wn. App. at 132.
10 Hamel v. Employment Sec. Dep't, 93 Wn. App. 140, 145, 966 P.2d 1282
(1998), review denied, 137 Wn.2d 1036 (1999).
11 Galvin v. Employment Sec. Dep't, 87 Wn. App. 634, 640-41, 942 P.2d 1040
(1997).
12 Wilson v. Employment Sec. Dep't, 87 Wn. App. 197, 201, 940 P.2d 269
(1997).
13 RCW 50.20.060.
14 RCW 50.04.293.
15 Dermond, 89 Wn. App. at 133 (quoting Galvin, 87 Wn. App. at 641-43).
16 Haney v. Employment Sec. Dep't, 96 Wn. App. 129, 139, 978 P.2d 543 (1999)
(alterations in original) (quoting Hamel, 93 Wn. App. at 146-47). Although
the ALJ and the commissioner considered Griswold's case before this test
had been enunciated, knowledge would necessarily have been an implicit
consideration of both the ALJ's and commissioner's decisions.
17 Haney, 96 Wn. App. at 139-40 (citing Dermond, 89 Wn. App. at 133).
18 We treat unchallenged findings as verities on appeal. See Tapper v.
Employment Sec. Dep't, 122 Wn.2d 397, 407, 858 P.2d 494 (1993).
19 Albertson's brief quotes the handbook but omits the portion that
authorizes employees to mark down products with the approval of their
department manager and requires department managers to receive prior
approval of the store director.
20 Galvin v. Employment Sec. Dep't, 87 Wn. App. 634, 942 P.2d 1040 (1997).
21 Galvin, 87 Wn. App. at 645-46.
22 City of Picayune v. Mississippi Empl. Sec. Comm'n, 525 So. 2d 1330 (Miss.
1988).
23 We also note that no court, including a Mississippi court, has cited City
of Picayune.
24 See Haney v. Employment Sec. Dep't, 96 Wn. App. 129, 139, 978 P.2d 543
(1999).
25 RCW 50.20.010(3).
26 WAC 192-16-021(1)(a).
27 Jacobs v. Office of Unemployment Compensation and Placement, 27 Wn.2d
641, 660, 179 P.2d 707 (1947). Jacobs was based on almost identical
language in the unemployment compensation act. See Jacobs, 27 Wn.2d at 645
(discussing Rem. Supp. 9988-206(c) (1945)).
28 Jacobs, 27 Wn.2d at 652-60.
29 Arima v. Employment Sec. Dep't, 29 Wn. App. 344, 351, 628 P.2d 500
(1981).
30 Arima, 29 Wn. App. at 351.
31 Tradewell Group, Inc. v. Mavis, 71 Wn. App. 120, 126, 857 P.2d 1053
(1993).
32 American Nat'l. Fire Ins. Co. v. B & L Trucking & Constr. Co., 82 Wn.
App. 646, 669, 920 P.2d 192 (1996), affirmed, 134 Wn.2d 413 (1998).
33 RCW 50.32.160.
34 RCW 50.32.100 provides:
In all proceedings provided by this title prior to court review involving
dispute of an individual's initial determination, or claim for waiting
period credit, or for benefits, the fees of all witnesses attending such
proceedings pursuant to subpoena shall be paid at the rate fixed by such
regulation as the commissioner shall prescribe and such fees and all costs
of such proceedings otherwise chargeable to such individual, except charges
for services rendered by counsel or other agent representing such
individual, shall be paid out of the unemployment compensation
administration fund. In all other respects and in all other proceedings
under this title the rule in civil cases as to costs and attorney fees
shall apply: PROVIDED, That cost bills may be served and filed and costs
shall be taxed in accordance with such regulation as the commissioner shall
prescribe.
RCW 50.32.110 provides:
No individual shall be charged fees of any kind in any proceeding involving
the individual's application for initial determination, or claim for
waiting period credit, or claim for benefits, under this title by the
commissioner or his representatives, or by an appeal tribunal, or any
court, or any officer thereof. Any individual in any such proceeding
before the commissioner or any appeal tribunal may be represented by
counsel or other duly authorized agent who shall neither charge nor receive
a fee for such services in excess of an amount found reasonable by the
officer conducting such proceeding.
35 Ancheta v. Daly, Comm'r, Employment Sec. Dep't, 77 Wn.2d 255, 266, 461
P.2d 531 (1969).
36 Ancheta, 77 Wn.2d at 266.
37 Ancheta, 77 Wn.2d at 266.
38 See American Nat'l Fire Ins., 82 Wn. App. at 669.
39 See RCW 50.32.090 ('The commissioner shall be deemed to be a party to any
judicial action involving any such decision and shall be represented in any
such judicial action by the attorney general.').
40 See e.g., Nielsen v. Employment Sec. Dep't, 93 Wn. App. 21, 43, 966 P.2d
399 (1998).