(dissenting)—Patricia Harvey worked 5 years for an employer who rewarded her with a summary dismissal. The transgression: She failed to respond immediately to a directive to help fold tablecloths. The Department of Employment Security, having endorsed the dismissal by denying unemployment compensation, now asks this court to do likewise. I respectfully dissent.
When the Supreme Court articulated its test for "misconduct" in Macey v. Department of Empl. Sec., 110 Wn.2d 308, 319, 752 P.2d 372 (1988), it did not reject decades of jurisprudence on the subject. As the court observed in Gibson v. Department of Empl. Sec., 52 Wn. App. 211, 219, 758 P.2d 547 (1988), "Macey did not abandon those elements of Boynton [Cab Co. v. Neubeck, 237 Wis. 249, 296 N.W. 636 (1941)] that appear to be most relevant to this case." Indeed, while disapproving its formulation, Macey cites Boynton as supporting the conclusion that at some level unsatisfactory job performance does not *343constitute misconduct. Macey, at 318. Surely Macey does not provide a simple formula susceptible of mechanical application.
Macey requires that the employee's alleged misconduct be connected with the work. This inquiry requires consideration of "the legitimate interests and expectations of the employer ..." Macey, at 319. The conduct at issue must have "some significance", and some conduct may be "so trivial or so remote from the legitimate scope of an employer's concern that [it] would not amount to a substantial interference with the employer's interest". Macey, at 321 (quoting Miller Brewing Co. v. Department of Indus., Labor & Human Relations, 103 Wis. 2d 496, 504, 308 N.W.2d 922 (Ct. App. 1981)). That the conduct was of significance to the employer is recognized by the fact the employer has dismissed the employee. The essential question is whether the conduct was of such significance, objectively, as to deny unemployment compensation.
The majority misses the point in insisting Ms. Harvey's "work responsibility was not trivial and was necessary to the operation of her employer's business". I agree, although I am reluctant to join the court in passing on the relative worth of employees' responsibilities. The relevant focus here, as Macey observed at page 319, is on "the effect of the employee's conduct upon his work performance ..." Thus, we must decide, not whether folded tablecloths are important to the employer, but whether Ms. Harvey's failure to fold tablecloths under the circumstances was of "some significance".
I would hold that it was not, for three reasons. First, the record indicates Ms. Harvey intended to help with the tablecloths when she completed her responsibilities with the trays.3 The majority asserts Ms. Harvey's conduct *344"directly impact[ed]" her work performance, without acknowledging this unrebutted evidence. Nothing indicates the employer had a legitimate need to have the linen folded immediately. Further, there is no basis, in the record or in the ALJ's findings, for the majority's assertion Ms. Harvey's conduct had an impact on the "general work force". Second, Ms. Harvey could not have known her simple delay in folding tablecloths would bring about her dismissal. The majority rejects such a "foreseeability standard” despite Macey's recognition that some conduct is beyond the employer's legitimate concern. Surely the fact an employee could not reasonably expect dismissal is relevant in determining whether the violation was of more than trivial significance. Third, isolated instances of unsatisfactory job performance do not constitute misconduct. Macey, at 318. The majority focuses on Ms. Harvey's "intentional" conduct, indicating her behavior was more than mere inability to perform, error of judgment or ordinary negligence. Macey, at 318. Ms. Harvey's failure to fold tablecloths, with the intention of doing so when she finished her other work, can be characterized at worst as an error in judgment, certainly of such trivial consequence as to fall short of qualifying as misconduct, as that word is used in RCW 50.20.060(1).4
*345Denial of benefits in this case presents a stark view of the employment relationship. It cautions an employee to second guess a supervisor at his or her peril. It gives employers complete control over the behavior of the labor force, not just as to continued employment, but as to the right to collect unemployment benefits. Intentional conduct in violation of a supervisor's directive whether trivial or ill advised, will justify both dismissal and denial of benefits. The law apparently must countenance the former. We should not permit the latter.
The majority, like the administrative law judge, apparently discounts Ms. Harvey's testimony she intended to help fold the linen when she finished her other work. She testified she completed her other work in 25 minutes, and then attempted to help fold tablecloths, but found the door to the laundry room locked. She also testified she attempted to explain her reason for temporarily *344refusing, but her supervisor refused to let her say anything else. Nothing in the record refutes this testimony, which is entirely consistent with her argument she did not "unequivocally refuse to help with the linen". The administrative law judge's finding in this regard thus is unsupported by the evidence, see Leggerini v. Department of Unemployment Comp., 15 Wn.2d 618, 131 P.2d 729 (1942), and is "clearly erroneous". Franklin Cy. Sheriffs Office v. Sellers, 97 Wn.2d 317, 646 P.2d 113 (1982), cert. denied, 459 U.S. 1106, 74 L. Ed. 2d 954, 103 S. Ct. 730 (1983). The majority concedes the applicability of the "clearly erroneous" standard to review of an administrative law judge's factual findings, RCW 34.04-.130(6)(e), but inexplicably limits itself to the error of law standard. RCW 34.04.130(6)(d).
The majority quotes Mr. Hunot's testimony at length, apparently to indicate Ms. Harvey screamed her refusal. The record is far from clear that Mr. Hunot actually was present during the incident. The ALJ apparently was unconvinced by this testimony, as he failed to mention a scream in his findings.