{ "id": 8524606, "name": "AL URBACK, Petitioner-Appellee v. EAST CAROLINA UNIVERSITY, Respondent-Appellant", "name_abbreviation": "Urback v. East Carolina University", "decision_date": "1992-03-03", "docket_number": "No. 912SC385", "first_page": "605", "last_page": "609", "citations": [ { "type": "official", "cite": "105 N.C. App. 605" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "328 S.E.2d 43", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "44" } ], "opinion_index": 0 }, { "cite": "74 N.C. App. 314", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524356 ], "year": 1985, "pin_cites": [ { "page": "316" } ], "opinion_index": 0, "case_paths": [ "/nc-app/74/0314-01" ] }, { "cite": "289 S.E.2d 357", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "359" } ], "opinion_index": 0 }, { "cite": "305 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569932 ], "year": 1982, "pin_cites": [ { "page": "375" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0373-01" ] }, { "cite": "349 S.E.2d 842", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "851" } ], "opinion_index": 0 }, { "cite": "318 N.C. 441", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4739651 ], "year": 1986, "pin_cites": [ { "page": "456" } ], "opinion_index": 0, "case_paths": [ "/nc/318/0441-01" ] }, { "cite": "342 S.E.2d 910", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "914" }, { "page": "914" } ], "opinion_index": 0 }, { "cite": "80 N.C. App. 444", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524226 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "451" }, { "page": "451" } ], "opinion_index": 0, "case_paths": [ "/nc-app/80/0444-01" ] }, { "cite": "290 S.E.2d 616", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1982, "pin_cites": [ { "page": "624-625" }, { "page": "624-625" } ], "opinion_index": 0 }, { "cite": "305 N.C. 492", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571184 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "506" }, { "page": "506" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0492-01" ] }, { "cite": "310 S.E.2d 348", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "309 N.C. 819", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4761216, 4769123, 4760682, 4764526, 4768794 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/309/0819-04", "/nc/309/0819-01", "/nc/309/0819-05", "/nc/309/0819-02", "/nc/309/0819-03" ] }, { "cite": "303 S.E.2d 649", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "651" } ], "opinion_index": 0 }, { "cite": "63 N.C. App. 38", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523800 ], "year": 1983, "pin_cites": [ { "page": "41" } ], "opinion_index": 0, "case_paths": [ "/nc-app/63/0038-01" ] }, { "cite": "372 S.E.2d 887", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "890" }, { "page": "890" } ], "opinion_index": 0 }, { "cite": "91 N.C. App. 527", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526141 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "531" }, { "page": "535" } ], "opinion_index": 0, "case_paths": [ "/nc-app/91/0527-01" ] } ], "analysis": { "cardinality": 493, "char_count": 9238, "ocr_confidence": 0.725, "pagerank": { "raw": 2.6463113037134653e-07, "percentile": 0.8236265898127652 }, "sha256": "259bbea00fac259396d541bac49df952859dcc5f51059575e5b68aa95f898935", "simhash": "1:4f43e5bb0db32ece", "word_count": 1440 }, "last_updated": "2023-07-14T19:24:40.355340+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges ORR and WALKER concur." ], "parties": [ "AL URBACK, Petitioner-Appellee v. EAST CAROLINA UNIVERSITY, Respondent-Appellant" ], "opinions": [ { "text": "HEDRICK, Chief Judge.\nThe facts relevant to this appeal are undisputed by the parties. The Personnel Commission found that the petitioner had been an employee at E.C.U. for fourteen and one-half (14 V2) years at the time of his termination and had consistently received a rating of \u201cmore than satisfactory\u201d from his supervisors. During the last seven years of his employment, Urback was specifically classified as an air conditioning technician in the heating ventilation and air conditioning section of the utilities division of the physical plant department.\nDuring June 1987, E.C.U. hired outside contractors to install air conditioning in the basement of Fletcher Dormitory located on the university campus. In order to attach the ductwork for the air conditioning unit, material containing 25-30% asbestos had to be removed from the ceiling. On the morning of 30 June 1987, Urback\u2019s immediate supervisor instructed him to remove those asbestos patches. Urback refused to participate in the removal stating that he was concerned about the health hazards related to asbestos exposure. When petitioner continued to refuse the job assignment despite repeated orders to comply, he was suspended. Urback\u2019s employment was formally terminated the following day with the cause identified by E.C.U. as insubordination.\nThe Personnel Commission determined that a job assignment is reasonable and proper as long as it is within the mental capabilities of the employee and is not unsafe, illegal or a violation of professional/ethical standards. The Commission then specifically found that the petitioner \u201chad an actual, legitimate, genuine, and reasonable fear of asbestos and actual concern for his health after he received the job assignment on the morning of June 30,\u201d and that \u201che reasonably believed that exposure to asbestos would cause him serious injury.\u201d A further finding adopted by the Commission concedes that \u201cexposure to respirable asbestos at certain levels can increase the petitioner\u2019s risk of contracting a permanently disabling or fatal lung disease or cancer or both.\u201d\nDespite these findings, the Commission nevertheless concluded that Urback\u2019s refusal to perform the job assignment amounted to insubordination due to its conclusion that the assignment was both reasonable and safe. An investigator from the Department of Labor had testified at the administrative hearing that he had reviewed the job assignment following petitioner\u2019s dismissal and had determined that \u201cthe work practices [actually employed by the workers who completed the removal following Urback\u2019s dismissal] and duration of the job precluded employee exposure above the Permissible Exposure Limit.\u201d The Commission then concluded that further findings concerning the petitioner\u2019s perception of the safety of the job were irrelevant.\nRespondent E.C.U. argues that the Superior Court erred in reversing the Commission\u2019s decision by holding that petitioner\u2019s conduct did not amount to insubordination as a matter of law. Pursuant to G.S. 150B-5K4), the Superior Court may reverse an agency\u2019s decision if it finds that the agency\u2019s decision was affected by an error of law. Our consideration of the Superior Court\u2019s decision is limited to determining whether that court committed any error of law in the review of the agency decision. Henderson v. N.C. Dept. of Human Resources, 91 N.C. App. 527, 531, 372 S.E.2d 887, 890 (1988); American Nat'l Insurance v. Ingram, 63 N.C. App. 38, 41, 303 S.E.2d 649, 651, cert. denied, 309 N.C. 819, 310 S.E.2d 348 (1983).\nThe Superior Court held that the Commission\u2019s decision was based upon the erroneous conclusion that petitioner\u2019s perception of the safety of the job assignment was irrelevant, despite its finding that Urback\u2019s fear was \u201clegitimate, genuine and reasonable\u201d in light of the circumstances existing on the morning of 30 June 1987. The Commission found, and the respondent argues, that the testimony of the investigator from the Department of Labor indicating that the job was later found to pose no serious risk of harm to employees, supports the conclusion that Urback\u2019s conduct amounted to insubordination. We agree with the superior court\u2019s ruling that such a conclusion is erroneous as a matter of law.\nThe State Employee\u2019s Handbook defines insubordination as the refusal to accept a reasonable and proper assignment from an authorized supervisor. See Employment Security Commission v. Lachman, 305 N.C. 492, 506, 290 S.E.2d 616, 624-625 (1982). The refusal which is the basis of the offense must be a willful refusal, Id., Kandler v. Department of Correction, 80 N.C. App. 444, 451, 342 S.E.2d 910, 914 (1986), and the reasonableness of the assignment must be determined in light of the relative circumstances existing at the time of the incident, Lachman, 305 N.C. at 506, 290 S.E.2d at 624-625, and in light of the employee\u2019s reasonable perception of those circumstances. Kandler, 80 N.C. App. at 451, 342 S.E.2d at 914. The conduct of an employee cannot be termed willful misconduct, if it is determined that the employee\u2019s actions were reasonable and taken with good cause. See Williams v. Burlington Industries Inc., 318 N.C. 441, 456, 349 S.E.2d 842, 851 (1986); Intercraft v. Industries Corp. v. Morrison, 305 N.C. 373, 375, 289 S.E.2d 357, 359 (1982); In the matter of Helmandollar v. M.A.N. Truck & Bus Corp., 74 N.C. App. 314, 316, 328 S.E.2d 43, 44 (1985).\nWhile it is not within our scope of review to determine whether Urback acted reasonably in light of the conditions existing at the time he refused to remove the asbestos, Henderson, 91 N.C. App. at 535, 372 S.E.2d at 890, the Commission itself specifically found that Urback reasonably believed that the exposure to asbestos would cause him serious injury. A ruling that despite the reasonableness of an employee\u2019s fears, his refusal to act nevertheless amounted to insubordination is clearly erroneous as a matter of law.\nAs a finding that the Commission\u2019s decision was affected by an error of law is sufficient basis for the superior court\u2019s reversal of the agency decision pursuant to G.S. 150B-5K4), there is no need to address respondent\u2019s further assignments of error.\nAffirmed.\nJudges ORR and WALKER concur.", "type": "majority", "author": "HEDRICK, Chief Judge." } ], "attorneys": [ "Attorney General Lacy H. Thornburg, by Special Deputy Attorney General Thomas J. Ziko, for respondent, appellant.", "Gary B. Davis for petitioner, appellee." ], "corrections": "", "head_matter": "AL URBACK, Petitioner-Appellee v. EAST CAROLINA UNIVERSITY, Respondent-Appellant\nNo. 912SC385\n(Filed 3 March 1992)\nState \u00a7 12 (NCI3d)\u2014 state employee \u2014 refusal to work with asbestos \u2014 not insubordination\nThe Superior Court correctly reversed the Personnel Commission\u2019s decision that a state employee\u2019s dismissal be upheld where petitioner was terminated from his employment for insubordination when he refused to remove material containing asbestos from a ceiling; the Commission specifically found that petitioner had an actual, legitimate, genuine, and reasonable fear of asbestos and concern for his health; and the Commission nevertheless concluded that petitioner\u2019s refusal to perform the job assignment amounted to insubordination due to its conclusion following testimony from a Department of Labor investigator that the assignment was both reasonable and safe. While it is not within the Court of Appeals\u2019 scope of review to determine whether petitioner acted reasonably in light of the conditions existing at the time he refused to move the asbestos, a ruling that an employee\u2019s refusal to act amounted to insubordination despite the reasonableness of his fears was clearly erroneous as a matter of law.\nAm Jur 2d, Civil Service \u00a7\u00a7 61, 63.\nAPPEAL by respondent from Griffin (William C.), Judge. Order entered 21 February 1991 in Superior Court, BEAUFORT County. Heard in the Court of Appeals 17 February 1992.\nPetitioner A1 Urback was terminated from his employment by Respondent East Carolina University (hereinafter \u201cE.C.U.\u201d) on 1 July 1987. At the time of his termination, Urback was an employee subject to the State Personnel Act, G.S. 126-35, and could not be discharged without cause. Urback contested his termination and, after completing the E.C.U. grievance procedures which affirmed his dismissal, Urback filed a petition for a Contested Case Hearing pursuant to 6.S. 150B-23, et seq.\nAn administrative law judge conducted an evidentiary hearing on 19 and 20 April 1988 and thereafter issued extensive proposed Findings of Fact and Conclusions of Law and recommended that the State Personnel Commission order the reinstatement of Urback to his former position with back pay, front pay, attorney\u2019s fees and all other benefits of continuous state employment. The Personnel Commission adopted many of the Findings of Fact proposed by the administrative law judge, yet nevertheless rejected both the Conclusions of Law and the Recommended Decision and ordered that Urback\u2019s dismissal be upheld.\nUrback then filed a Petition for Judicial Review pursuant to G.S. 150B-43 et seq. which came on for hearing at the 4 January 1991 session of the Superior Court, Beaufort County. Judge William C. Griffin reversed the Commission\u2019s decision after finding it to be erroneous as a matter of law and ordered that Urback be reinstated to his former position.\nAttorney General Lacy H. Thornburg, by Special Deputy Attorney General Thomas J. Ziko, for respondent, appellant.\nGary B. Davis for petitioner, appellee." }, "file_name": "0605-01", "first_page_order": 633, "last_page_order": 637 }