DO NOT CITE. SEE RAP 10.4(h).
Court of Appeals Division II
State of Washington
Opinion Information Sheet
Docket Number: 28285-2-II
Title of Case: M & M Road Recycle Inc., Appellant v. Employment
Security Department, Respondent
File Date: 01/10/2003
SOURCE OF APPEAL
----------------
Appeal from Superior Court of Thurston County
Docket No: 01-2-00549-6
Judgment or order under review
Date filed: 12/14/2001
JUDGES
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Authored by C C Bridgewater
Concurring: David H Armstrong
Karen G Seinfeld
COUNSEL OF RECORD
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Counsel for Appellant(s)
David Paul Williams
The Williams Law Firm
PO Box 1455
Bellevue, WA 98009-1455
Counsel for Respondent(s)
Jonathon Aurel Gurish
Office of the Atty General
PO Box 40110
Olympia, WA 98504-0110
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
M & M ROAD RECYCLE, INC., No. 28285-2-II
Appellant,
v.
EMPLOYMENT SECURITY DEPARTMENT UNPUBLISHED OPINION
OF THE STATE OF WASHINGTON,
Respondent.
BRIDGEWATER, J. -- M & M Road Recycle, Inc. (M & M) appeals the
Employment Security Department's (ESD) decision granting Douglas Chappell
unemployment compensation benefits. We affirm.
In September 2000, a motorist complained that Chappell, while driving M &
M's truck, had tailgated him and flashed his headlights, trying to get the
motorist to move out of his way. M & M's operations manager discussed the
complaint with Chappell and considered their discussion a warning.
Chappell denied the tailgating and claimed that he flashed his headlights
only after the motorist gave him the finger.
In November 2000, Boyce Sturrock complained that Chappell had cut him
off while approaching a stoplight on Highway 167, forcing Sturrock to
"aggressively step on the {brake pedal} a little bit harder."
Administrative Record (AR) at 22. Sturrock estimated that he and Chappell
were traveling at 40 to 45 miles per hour. In response to this complaint,
M & M terminated Chappell for "{u}nsafe {o}peration of a heavy truck on a
public road." AR at 46. Chappell denied any wrongdoing and filed for
unemployment benefits.
ESD decided that Chappell had committed disqualifying misconduct and
denied his benefits request.1 Chappell appealed ESD's decision.
An administrative law judge (ALJ) affirmed ESD's decision. The ALJ
concluded that the second complaint showed that Chappell "drove in a
reckless and hazardous manner" in violation of M & M's safety manual, which
Chappell had agreed to obey. AR at 54. Chappell petitioned the ESD
commissioner for review of the ALJ's decision.2
The commissioner adopted most of the ALJ's findings and conclusions,
including that Chappell was available for work, a condition of eligibility.3
But the commissioner concluded that the evidence did not support that
Chappell committed misconduct. Consequently, Chappell was entitled to
receive benefits. M & M appealed to the superior court, which affirmed the
commissioner's decision and dismissed the appeal.
I. Standard of Review
The Administrative Procedure Act (APA), chapter 34.05 RCW, governs
judicial review of the commissioner's final decision.4 In reviewing
administrative decisions, we stand in the same position as the superior
court, applying the standards from RCW 34.05.570 directly to the
administrative record.5 To the extent that the commissioner modified the
ALJ's findings, we review the commissioner's findings.6 The commissioner's
decision is prima facie correct and the party attacking it must prove
otherwise.7
M & M contends that (1) ESD failed to follow prescribed procedure, (2)
erroneously interpreted or applied the law, (3) substantial evidence does
not support the decision, and (4) the decision is inconsistent with an
agency rule.8 This court grants relief only if the party seeking review
"has been substantially prejudiced by the action complained of."9
We review factual issues under the substantial evidence standard.10
Substantial evidence is of sufficient quantity "to persuade a fair-minded
person of the truth or correctness of the {agency} order."11 The
substantial evidence standard is deferential; we view "the evidence and any
reasonable inferences in the light most favorable to the party that
prevailed in the highest forum exercising fact-finding authority."12 We
review questions of law or the application of the law to the facts de novo,13
according "substantial weight" to the agency's view of the law it
administers.14
II. Availability for Work
Under the Washington Employment Security Act, claimants must be able
and available to work in order to receive benefits.15 To be "available" for
work, a claimant "must be ready, able, and willing, immediately to accept
any suitable work which may be offered to him . . . and must be actively
seeking work pursuant to customary trade practices{.}"16 A claimant must
establish his rights to benefits, including that he was available for work.17
Availability depends on the particular facts of the case.18
WAC 192-180-01519 requires that claimants keep a log of their job search
activities. During the administrative hearing, the ALJ instructed Chappell
to send his job search log to her and to M & M. Though Chappell never
produced his log, the ALJ issued her decision the day after the hearing.
M & M argues that the record contains no substantial evidence to
support the availability finding, but only Chappell's claim that he was
making "about three" job search contacts each week. AR at 4. M & M
further argues that Chappell's failure to provide his job search log
deprived M & M of the opportunity to cross-examine Chappell as to his
availability. M & M points out that a claimant's failure to provide
details of his work search, as directed, creates a presumption that he is
not actively seeking work.20
Nevertheless, M & M did not raise these issues before the agency. At
the hearing, M & M did not complain that it was unable to contest
Chappell's availability. In fact, M & M never attempted to cross-examine
Chappell about his availability. Therefore, we will not review the issue.21
III. Failure to follow a proscribed procedure
Chappell's petition for review included the statutory form, four
handwritten pages, and seven photographs that were not part of the
adjudicative record. The photographs show the stretch of highway where
Chappell allegedly cut-off Sturrock and the posted speed limit, 60 miles
per hour.
A petition for review, including attachments, may not exceed five
pages.22 Pages exceeding the limit will not be considered but, rather,
returned to the petitioner.23
The ALJ found that Chappell "was driving at a high rate of speed for
existing conditions" when he allegedly cut off Sturrock. AR at 53. The
commissioner rejected this finding and noted that Chappell, "according to
the evidence was not exceeding the speed limit; in fact, the evidence
indicates that {his} speed was below the speed limit." AR at 64-65. M & M
points out that the record is silent on the posted speed limit and
concludes that the commissioner based his finding on the photographs.
M & M contends that (1) the commissioner should not have considered
the photographs, which were outside the record,24 but returned them to
Chappell; and (2) M & M suffered substantial prejudice because it never had
the opportunity to contest the photographs. These arguments fail.
First, the record supports a reasonable inference that Chappell did
not exceed the speed limit; Chappell was traveling on a highway at 40 to 45
miles per hour, which is less than normal highway speeds. Second, there
was no factual dispute as to Chappell's speed. Furthermore, M & M did not
terminate Chappell for speeding but for the manner in which he changed
lanes. Thus, the posted speed limit was irrelevant. Finally, the
commissioner, in his decision, stated definitively that he made his
findings after reviewing the "entire record{.}" AR at 64. In light of the
commissioner's statement and no conclusive evidence that he relied on the
photographs, we cannot find that he relied on materials outside the record.
IV. Misconduct
M & M argues that the commissioner erred in concluding that Chappell's
driving (changing lanes in front of Sturrock) was not misconduct.
Employees discharged for employment-related misconduct cannot receive
unemployment compensation benefits.25
"Misconduct" is an employee's act in willful disregard of his
employer's interest where the effect of the act is to harm the employer's
business.26 Whether an employee's behavior constitutes misconduct is a
mixed question of law and fact.27 We note that the commissioner is not
bound by the ALJ's findings of fact; instead, the commissioner may make
findings or ignore findings so long as substantial evidence supports them.28
"{A}n employee acts with willful disregard when he (1) is aware of his
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."29 "{A}n employer's
previous warnings to avoid certain behavior may provide strong evidence . .
. that the conduct is inconsistent with the employer's interest."30 "Mere
incompetence, inefficiency, erroneous judgment, or ordinary negligence does
not constitute misconduct for purposes of denying unemployment
compensation."31
Chappell was aware of M & M's interest in safety. M & M's safety
manual, which Chappell had agreed to obey, required that employees operate
company vehicles in a safe and legal manner.
M & M argues that Chappell knew that reckless driving would jeopardize
its interest in safety. But this argument requires us to accept M & M's
view of the facts, that Chappell drove recklessly and that he considered
his driving reckless. Although the evidence indicates that Chappell
changed lanes in front of Sturrock as Sturrock approached a stop light,
forcing Sturrock to apply his brakes, that is not conclusive proof of
reckless driving. Given our deferential standard of review regarding fact
finding and the requirement that we view the commissioner's ruling as prima
facie correct, M & M has failed to meet its burden of showing error.
Although M & M requires the safe and reasonable operation of its vehicles,
the evidence is sufficient to support the inference that Chappell's driving
was within a reasonable interpretation of that requirement.
M & M also argues that it had warned Chappell about his driving. M &
M managers told Chappell to "cool it" after the tailgating complaint. AR
at 16. But there was no warning, written or otherwise, about changing
lanes, reckless driving, or possible termination on a second complaint.32
Thus, again, the evidence did not conclusively establish that M & M warned
Chappell that his driving was inconsistent with its interests.
Further, even if Chappell's driving was sufficient to justify his
termination, it did not necessarily constitute misconduct. The
commissioner noted that although Chappell "may be a truck driver of
marginal abilities, . . . his behavior does not constitute disqualifying
misconduct{.}" AR at 65.
In sum, there is a reasonable inference from the evidence that
Chappell did not change lanes in a manner that he knew or should have known
was unsafe or grossly negligent. The complaining witness and Chappell both
indicated that three vehicles were traveling at approximately the same
speed -- Chappell in the left lane, a car in the right, and the
complaining witness merging onto the highway. Chappell's sudden lane
change could have been negligent without being reckless. Thus, the
commissioner did not err in concluding that Chappell's driving did not
constitute misconduct.
Because the law permits the commissioner to substitute his own
findings and conclusions for those of the ALJ without first showing that
there was a lack of substantial evidence to support the ALJ's findings, we
consider only33 whether the commissioner's findings are supported by
substantial evidence and whether those findings support the conclusions of
law.34 We hold that there is substantial evidence to support the
commissioner's findings. Thus, we are constrained to affirm the
commissioner's findings.
V. Attorney Fees
M & M seeks its attorney fees on appeal.35 But because M & M did not
prevail, it is not entitled to fees.36
Affirmed.
A majority of the panel having determined that this opinion will not
be printed in the Washington Appellate Reports, but will be filed for
public record pursuant to RCW 2.06.040, it is so ordered.
Bridgewater, J.
We concur:
Seinfeld, P.J.
Armstrong, J.
1 RCW 50.20.060 (Disqualification from benefits due to misconduct).
2 WAC 192-04-170.
3 RCW 50.20.010(3).
4 Tapper v. Employment Sec. Dep't, 122 Wn.2d 397, 402, 858 P.2d 494 (1993).
5 RCW 50.32.120; Tapper, 122 Wn.2d at 402.
6 Tapper, 122 Wn.2d at 406.
7 RCW 50.32.150; see also RCW 34.05.570(1)(a).
8 RCW 34.05.570(3).
9 RCW 34.05.570(1)(d).
10 Wilson v. Employment Sec. Dep't, 87 Wn. App. 197, 201, 940 P.2d 269
(1997).
11 Callecod v. Wash. State Patrol, 84 Wn. App. 663, 673, 929 P.2d 510,
review denied, 132 Wn.2d 1004 (1997).
12 Schofield v. Spokane County, 96 Wn. App. 581, 586, 980 P.2d 277 (1999).
13 Tapper, 122 Wn.2d at 403.
14 Franklin County Sheriff's Office v. Sellers, 97 Wn.2d 317, 325, 646 P.2d
113 (1982), cert. denied, 459 U.S. 1106 (1983).
15 RCW 50.20.010(3).
16 RCW 50.20.010(3).
17 Jacobs v. Office of Unemployment Comp. & Placement, 27 Wn.2d 641, 651,
179 P.2d 707 (1947).
18 Brandley v. Dep't of Employment Sec., 23 Wn. App. 339, 343, 595 P.2d 565
(1979).
19 See also WAC 192-23-015.
20 WAC 192-23-015 ("If a claimant . . . fails to provide complete work
search details . . . as directed and fails to respond to provide details
relating to work search activity, the individual will be presumed to be not
actively seeking work and will be subject to denial pursuant to RCW
50.20.010(3).").
21 See RCW 34.05.554 (On judicial review of administrative action, "{i}ssues
not raised before the agency may not be raised on appeal{.}").
22 WAC 192-04-170(4)(b); AR at 56.
23 WAC 192-04-170(6); AR at 56.
24 See RCW 34.05.461(4) ("Findings of fact shall be based exclusively on the
evidence of record in the adjudicative proceeding and on matters officially
noticed in that proceeding.").
25 RCW 50.20.060.
26 RCW 50.04.293; Haney v. Employment Sec. Dep't, 96 Wn. App. 129, 134, 978
P.2d 543 (1999).
27 Tapper, 122 Wn.2d at 402.
28 See N.W. Steelhead & Salmon Council of Trout Unlimited v. Dep't of
Fisheries, 78 Wn. App. 778, 785-86, 896 P.2d 1292 (1995) (citing RCW
34.05.464(4); RCW 34.05.570(3)(e)).
29 Hamel v. Employment Sec. Dep't, 93 Wn. App. 140, 146-47, 966 P.2d 1282
(1998), review denied, 137 Wn.2d 1036 (1999).
30 Hamel, 93 Wn. App. at 148.
31 Dermond v. Employment Sec. Dep't, 89 Wn. App. 128, 133, 947 P.2d 1271
(1997).
32 See, e.g., Haney, 96 Wn. App. at 140 (employee given written warnings
that "any further personal attacks on her co-workers or management would
result in her immediate discharge").
33 See N.W. Steelhead, 78 Wn. App. at 785 (citing RCW 34.05.464(4)).
34 See N.W. Steelhead, 78 Wn. App. at 785-86 (citing RCW 34.05.570(3)(e)).
35 See RAP 18.
36 See RAP 14.2