Court: Washington Supreme Court; September 20, 1985; Washington; State Supreme Court
The case involves Noel Ballinger and others (respondents) against the Department of Social and Health Services (DSHS) (petitioner), reviewed by the Supreme Court of Washington on August 22, 1985. DSHS contested a trial court ruling that reversed a decision by the State Personnel Board, which had upheld the dismissal of 27 correctional officers at the Washington State Penitentiary for refusing to work due to unsafe conditions. The penitentiary experienced significant violence, including multiple deaths, leading to a new administration's efforts to enhance security through various measures, such as increased lockdowns and infrastructure improvements.
During a lockdown initiated after a correctional sergeant's murder in June 1979, riots occurred, prompting additional security responses, including the deployment of the National Guard. The prison's conditions were deemed "intolerable" by the American Correctional Association, which provided 116 recommendations for improvement. Despite these issues, the officers did not file a complaint under the Washington Industrial Safety and Health Act (WISHA). On July 29 and 30, 1979, the officers refused to take their posts, asserting concerns over inadequate training, excessive shifts, low staffing ratios, poor lighting, and lack of management communication. Notably, their refusal was not officially supported by their union. The Supreme Court ultimately reversed the trial court's decision, reinstating the State Personnel Board's ruling.
Plaintiff Coy Grainger claimed medical issues exempted him from assigned work, leading to his immediate termination alongside other plaintiffs without concurrent termination letters, which were later sent via certified mail on July 30, 1979. The Board upheld the terminations, citing that (1) conditions at the penitentiary were not significantly unsafe, (2) plaintiffs did not exhaust their legal remedies, and (3) their refusal to work constituted neglect and insubordination. The Superior Court reversed this decision, finding that (1) the situation at Walla Walla was an emergency requiring immediate action, (2) plaintiffs were not obligated to file a complaint with the Department of Labor and Industries before refusing work, (3) the Board's decision contradicted the evidence, and (4) the environment posed a substantial danger to the guards. The court ordered reinstatement with back pay and benefits. DSHS sought discretionary review, resulting in a stay of the order and accelerated review by the Court of Appeals. Four issues were presented for review: (1) the application of the preponderance of the evidence standard by the trial court, (2) justification for plaintiffs' refusal to work due to dangerous conditions, (3) the requirement of exhausting administrative remedies before refusal, and (4) the validity of notice of termination via certified mail for insubordination. The trial court's ruling was challenged, particularly regarding the standard of review applicable to the Personnel Board's decisions, with precedent indicating that superior courts should assume the correctness of the Board's findings unless substantial evidence suggests otherwise.
The court established that for the superior court to overturn the findings of the personnel board, it must be evident from the entire record that the evidence supporting the board’s findings was insufficient and the opposing evidence overwhelmingly contradicted them. The standard of review articulated in Gogerty remains applicable, despite the repeal of the Personnel Board statute (RCW 41.06.200(1)), as its successor (RCW 41.64.130) contains similar language. The trial court erred by conducting a de novo review under the preponderance of the evidence standard.
Additionally, the document discusses employees' rights regarding refusing unsafe work. It cites Lowry v. Board of Industrial Insurance Appeals, affirming that an employee can disobey an order if they reasonably believe it would violate the law or be unsafe. Washington law (WISHA) mandates that employers provide a safe workplace, and workers may refuse work under dangerous conditions. The principles of the right not to work are also recognized in federal labor law, with the Supreme Court rulings establishing that employees acting in good faith during ‘concerted activity’ can refuse unsafe work, as seen in NLRB v. Washington Aluminum Co. and Gateway Coal Co. v. United Mine Workers of America. The latter requires proof of an imminent and abnormal danger, and subsequent cases have maintained that usual occupational hazards are typically accepted risks compensated through salary. The scope of the right to refuse work is highlighted in Whirlpool Corp. v. Marshall, which upholds regulations allowing employees to choose between unsafe work and potential injury or death.
An employee who, faced with a dangerous condition and having no reasonable alternative, refuses in good faith to engage in unsafe work is protected from subsequent discrimination. The dangerous condition must pose a real threat of death or serious injury, and the employee must have insufficient time to address the danger through standard enforcement channels. Additionally, the employee should have attempted to seek correction from the employer but was unsuccessful. The legal context includes references to relevant case law.
The appellate court reviews the administrative record similarly to the trial court, which did not conduct hearings. Although evidence indicates that the prison was dangerous in the spring and summer of 1979, specific conditions at the time of the employees' walkout showed that prisoners were secured, management maintained a high officer-to-inmate ratio, and various safety measures were being implemented. There was ongoing communication between prison administration and union representatives.
While the record suggests that the prison could have operated more safely, the evidence regarding imminent danger was conflicting. The administrative agency's decision, which conducted extensive hearings, should be given substantial weight. The National Labor Relations Board stated that work recognized as inherently dangerous does not become 'abnormally dangerous' simply due to employee dissatisfaction with conditions.
Plaintiff Coy Grainger claimed his refusal to work was justified by his medical disabilities; however, the Board found no significant evidence to separate his case from those of other plaintiffs. The trial court noted that Grainger's disability made his case stronger, but overall evidence did not substantiate a unique justification for his refusal to work.
Grainger's medical disabilities limited his ability to interact with inmates, yet he had been working two days a week in the admissions department, which involved potential inmate contact, without objection prior to the walkout. When the walkout occurred, Grainger was not assigned any duties beyond those in admissions, providing little evidence that conditions were more hazardous for him compared to his co-plaintiffs. Substantial evidence supported the Board's conclusion that conditions at Walla Walla were not abnormally unsafe. Even if the plaintiffs' fears of imminent danger were valid, they had alternatives to abandoning their jobs. The trial court's rejection of the Personnel Board's ruling, which stated that plaintiffs should have exhausted their administrative remedies before walking off, was disputed. A refusal to work must be made in good faith, which includes requesting the employer to address hazards and considering the urgency of the situation. The record did not show that the safety laws available could not provide the necessary relief, as the plaintiffs' grievances had been ongoing since early spring 1979. The relevant statutes outline emergency procedures for reporting labor code violations and protect employees from retaliation. The plaintiffs' failure to utilize these remedies indicated bad faith in their walkout. Public policy dictates that critical workers should only refuse work as a last resort, and their actions were inconsistent with state law and the operational integrity of the facility. Furthermore, their refusal to work lacked protection under federal labor law due to the absence of concerted activity, as the union did not support the walkout or assist in filing a grievance. Additionally, while the plaintiffs received their termination notices by certified mail the day after dismissal, they contended that this method rendered the notices defective, as specified in WAC 356-34-040, which requires written charges to be provided at least 15 days before termination.
Notification of termination must be delivered directly to an employee during working hours, or if that is not feasible due to the employee's absence or remote location, it may be sent via certified mail to their last known address. In this case, the plaintiffs, who were present at work during a walkout but refused to work, argued they should have received personal notice of termination while on the job. They contended that their presence at work meant they were not absent on a scheduled workday and thus required personal service.
However, the cases cited by the plaintiffs, Stewart and Johnson, were found to be distinguishable. In Stewart, the employee was sick and unable to work, which justified the mailing of the termination notice the following day. In Johnson, personal service was possible since the employee was told to report the next day, a non-scheduled workday. Conversely, the plaintiffs' refusal to work was insubordinate, and their employer could not have reasonably served them with notice during their insubordinate act.
The argument that their refusal did not constitute being 'absent' was rejected, as the regulation WAC 356-34-040 implies that an employee becomes constructively absent when they refuse to work. The ruling affirmed that the employer acted reasonably and in accordance with merit system rules by mailing the termination notices after the insubordination occurred. The interpretation of the Personnel Board's rules was upheld, emphasizing that the Board's understanding of its regulations carries significant weight.
Interpretation of WAC 356-34-040 is reinforced by WAC 356-34-060, which outlines that employees absent for three consecutive working days are presumed to have abandoned their positions and can be notified of termination via certified mail. In this case, actual abandonment occurred, confirming that the plaintiffs were absent under WAC 356-34-040, making the certified mail notice reasonable. The ruling stands despite the plaintiffs returning on the day the termination notice was mailed, as their refusal to work constituted constructive absence. The argument that termination notices could not be served on a day off is dismissed, as an employee cannot have a day off immediately following a certified termination notice. Additionally, the plaintiffs’ claims regarding defective notice due to timing are rejected. The court found substantial evidence that conditions at Walla Walla were not dangerously abnormal, and the plaintiffs did not exhaust their administrative remedies under the Washington Industrial Safety and Health Act. The Personnel Board's decision that all plaintiffs received valid termination notices is upheld. The trial court's decision is reversed, and the Personnel Board's decision is reinstated. Reconsideration was denied on October 22, 1985.
