                                                                                                                      FILED
                                                                                                          CUE T OF APPEALS
                                                                                                              DIVISION 11

                                                                                                        20Pi SEP 23       A    9: 33
                                                                                                             r   '
                                                                                                        Sim- -                  TON

                                                                                                        BY
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTO

                                                    DIVISION II


JON C. JAMES,


                                      Appellant.                                     No. 44714 -2 -II


         v.

                                                                           UNPUBLISHED OPINION
STATE OF WASHINGTON EMPLOYMENT
SECURITY DEPARTMENT,


                                       Respondent.


         MELNICK, J. —            Jon James appeals the trial court' s order affirming the Employment

Security      Department'   s(   Department) denial        of unemployment      benefits.      None of the errors he


alleges require reversal.          The agency' s findings are supported by substantial facts in the record

and it correctly applied the law to the facts. We affirm.

                                                          FACTS


         James    quit   his job   with a    landscaping    company.      He applied for unemployment benefits.


The Department denied James benefits because he voluntarily quit without good cause.

         James    appealed       the denial to   an administrative     law judge ( ALJ). He argued that he quit


with good cause      for two      reasons:   illegal   activities on   the jobsite   and   safety   concerns.    The ALJ


heard testimony from both James               and   the   employer.     James alleged that his employer did not


allow employees to take statutorily required breaks and that his employer failed to address safety

issues, such as employees riding in the bucket of a bobcat and installing the wrong backflow

valve.     The   employer        testified that James      never   mentioned    concerns      about    safety    or   breaks
44714 - -II
      2




before he quit and that the employer addressed the bobcat and backflow valve issues when they

arose.



         The ALJ found the employer more credible than James. He also found that James did not

report   his   concerns about    breaks    or   safety issues to the        employer      before quitting.         Accordingly,

the ALJ    concluded    that James failed to            show good cause           for quitting.      The ALJ affirmed the


Department' s denial of benefits.


         James     appealed      the    ALJ'     s    decision       to   the    Department' s       commissioner.         The


commissioner adopted the ALJ' s findings of facts and conclusions of law and entered the


following augmented findings of fact:

          N] one of claimant' s job duties required continuous labor, that is, there was
          significant down time, ten to fifteen minutes five times a day, to change tools or
         tasks.   The employer contends that the landscaping industry is not subject to the
          statutory   scheduled    break     requirement       because      of   the   nature   of   the   work.    The

         project claimant worked on for the employer was supervised by a general
         contractor, who notified the employer of safety issues, which the employer
         corrected immediately.  The employer was aware that the project was subject to
         Occupation Health and Safety Administration rules and strove to abide by them to
         keep the job.

Administrative Record      at    148.    The commissioner concluded that James failed to establish good


cause for quitting because he did not notify the employer of any alleged problems or give the

employer reasonable       time to      correct       them.   Additionally, the commissioner determined that the

safety issues James raised were immediately addressed and the nature of the work provided for

adequate breaks. James petitioned for reconsideration. The commissioner denied the petition.

          James appealed to the superior court. The court reviewed the commissioner' s record and


heard    argument     from the    parties.       The court upheld the commissioner' s findings of fact and


conclusions of law and affirmed the commissioner' s decision. James appeals.




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44714 -2 -II




                                                       ANALYSIS


         The Administrative Procedure Act ( APA), chapter 34. 05 RCW, governs judicial review


of   the final decision    of   the Department'    s commissioner.       RCW 50. 32. 120; Verizon Nw., Inc. v.


Emp' t   Sec.    Dep' t,   164 Wn.2d 909, 915,          194 P. 3d 255 ( 2008).       We review de novo the


commissioner' s findings and decision, not the superior court' s decision or the underlying ALJ

order. Engbrecht v. Emp' t Sec. Dep' t, 132 Wn. App. 423, 427, 132 P. 3d 1099 ( 2006).

         The commissioner' s decision is prima facie correct and the burden is on the challenging

party to   show    otherwise.      RCW 50. 32. 150.       RCW 34. 05. 570( 3) lists the circumstances under


which    this   court can grant relief    from    an   agency   order.   James appears to argue that the order


exceeded the agency' s statutory authority, the agency engaged in unlawful procedures, the

agency erroneously interpreted the law, and the order is not supported by substantial evidence.

RCW 34. 05. 570( 3)( b) -(e).       Issues not raised before the agency may not be raised on appeal.

RCW 34. 05. 554( 1).


         First, James argues that the Department erred when it failed to grant him conditional

benefits   under    WAC 192 -120 -050.          James did not raise this issue before the agency and he

cannot raise it now on appeal. RCW 34. 05. 554( 1).


         James next argues that the Department erred by, conducting a labor standards

investigation     and   granting   a " meal and rest period variance."       Appellant'   s   Br.   at   6.   There is no


evidence in the record that the Department engaged in a labor standards investigation or granted

a " variance"     regarding     meal   times   and rest periods.    The Department' s review was limited to


determining whether James qualified for unemployment benefits.




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44714 -2 -II



           Next, James    alleges   deficiencies in the agency'          s procedures.    He contends that the record


of   his   hearing   was erased and   that certain " Expert Fact           Finding "1 documents were not disclosed

to the ALJ     or commissioner.       Appellant'   s   Br.   at   7.   Neither of these issues entitles him to relief.


James is correct that there was a problem with the recording of his first hearing before the ALJ.

However, he      was granted another      hearing de     novo.         Additionally, contrary to James' s assertions,

the " Expert Fact Finding" documents were included in the commissioner' s record.

            The majority of James' s remaining arguments involve challenges to the commissioner' s

findings of fact. We review the commissioner' s findings of fact for substantial evidence in light


of   the   whole record.    RCW 34. 05. 570( 3)( e);         Smith v. Emp' t Sec. Dep' t, 155 Wn. App. 24, 32,

226 P. 3d 263 ( 2010). "        Substantial evidence is evidence that would persuade a fair -
                                                                                            minded


person of     the truth   or correctness of   the matter."         Smith, 155 Wn.     App.   at      33.
                                                                                                  32 -     Unchallenged


findings     are verities on appeal..   Tapper v. Emp' t Sec. Dep' t, 122 Wn.2d 397, 407, 858 P. 2d 494

 1993).      We defer to the agency' s judgment regarding witness credibility and the weight of

evidence.      Affordable Cabs, Inc. v. Emp' t Sec. Dep' t, 124 Wn. App. 361, 367, 101 P. 3d 440

 2004).       We determine de novo whether the agency correctly applied the law to the factual

findings. Affordable Cabs, Inc.,         124 Wn. App. at 367.

            Generally, an employee cannot receive unemployment benefits if he voluntarily quits

without good cause.        RCW 50. 20. 050( 2)(    a).   But an employee may still be eligible for benefits if

he quit because of illegal activities on the jobsite or because a lack of safety in the workplace.

RCW 50. 20. 050( 2)( b)( viii), (ix); WAC 192 -150- 130( 2), - 135( 2).                  These exceptions require the


employee to report his concerns to the employer and allow a reasonable period of time for the




1 These documents include interviews with the employer during the Department' s initial
investigation of James' s claim.



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      2



employer     to   correct     the   problem        before quitting.          RCW 50. 20. 050( 2)( b)( viii), (ix); WAC 192-


150- 130( 2), - 135( 2).


          James appears to challenge the commissioner' s findings that ( 1) the nature of the work


allowed for breaks throughout the day and ( 2) the employer immediately corrected safety issues.

These findings       are supported           by    substantial evidence        in the   record.      The employer testified that,


because of the nature of the work, there are at least five 10 -15 minute breaks throughout the


workday.      James      asserts    that these       facts   are not   true.    But the commissioner determined that the


employer     had    more      credibility than James.           We defer to the commissioner' s judgment regarding

witness     credibility.      Affordable Cabs, Inc., 124 Wn.                   App.     at   367.    The employer also testified


that safety concerns James referenced at the hearing were corrected immediately after they

occurred.     This   evidence          is   not contradicted     in the      record.    The agency' s findings are supported

by substantial evidence.

          Moreover, even if James had shown that the findings were not supported by substantial

evidence,    the agency        still   correctly     applied   the   law to the remaining findings. The commissioner


found James did not report his concerns about breaks or safety issues to his employer before

quitting.      RCW         50. 20. 050( 2)( b)( viii)        and (     ix)   require    that,    in order to be             eligible for


unemployment benefits, the employee must report his concerns to the employer before quitting.

James did     not   do   so   here.     Therefore, the commissioner correctly determined that he did not quit

for good cause and he is not entitled to unemployment benefits. 2

          Finally, James contends that WAC 192 -150 -130 and 192- 150 -135 are unconstitutional.

He does not provide any meaningful argument or citation to authority in support of this


2 James urged both this court and the agency to determine whether his employer in fact violated
regulations                                  and   break times.        But this is     outside      the   scope of   this   case.   At all
                  regarding safety
levels, this review was limited to whether the Department properly denied James unemployment
benefits.



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44714 -2 -II



contention.    Accordingly,     we   do not   address   this   argument.   RAP 10. 3(   a)(   6); Cowiche Canyon


Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P. 2d 549 ( 1992).

        We affirm.


        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 in accordance with RCW


2. 06. 040, it is so ordered.




We concur:




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