Erik D. Peterson, Relator, vs. Certain-Teed Corporation, Respondent, Department of Employment and Economic Development, Respondent.

Erik D. Peterson, Relator, vs. Certain-Teed Corporation, Respondent, Department of Employment and Economic Development, Respondent. A05-367, Court of Appeals Unpublished, December 13, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-367

 

 

Erik D. Peterson,

Relator,

 

vs.

 

Certain-Teed Corporation,

Respondent,

 

Department of Employment and Economic Development,

Respondent.

 

 

Filed December 13, 2005

Affirmed

Toussaint, Chief Judge

 

Department of Employment and Economic Development

Agency File No. 14452 04

    Erik D. Peterson, 5122 Humming Bird Lane, Farmington, MN 55024 (pro se relator)

 

Certain-Teed Corporation, Div. #20, C/O Talx UCM Services, Inc., P.O. Box 283, St. Louis, MO 63166-0283 (respondent)

 

Linda Alison Holmes, Department of Employment and Economic Development, 332 Minnesota Street, Suite E200, St. Paul, MN 55101-1351 (for respondent DEED)

 

            Considered and decided by Toussaint, Chief Judge; Halbrooks, Judge; and Wright, Judge.

 

U N P U B L I S H E D   O P I N I O N

 

TOUSSAINT, Chief Judge

 

            Relator Erik Peterson challenges the determination of the senior unemployment review judge (SURJ) that relator was discharged from respondent Certain-Teed Corporation for misconduct.  Because the SURJ's determination that relator committed misconduct is supported by the evidence and not contrary to the statutory mandate, we affirm.

D E C I S I O N

            The issue is whether relator committed disqualifying misconduct when he walked off the job halfway through his 12-hour shift, in violation of an express policy of his employer, or whether relator's conduct falls within the statutory exception of a single incident with no significant adverse impact on the employer.

            Relator worked the 7:00 p.m. to 7:00 a.m. shift at respondent Certain-Teed Corporation.  About 12:40 a.m., on July 21, 2004, he noticed a cotter pin on the ground and assumed it came from an overhead crane.  This upset him because the crane, without the pin in place, could cause injury.  He went to his supervisor, who confirmed that the pin was missing and arranged to have it fixed.  Relator insisted on calling the plant manager himself, but his supervisor declined to provide relator with the phone number.  Relator was too angry to remain at work and punched out at 12:54 a.m. without permission.  He was discharged on July 23, 2004, for violation of the respondent's policies. 

            The adjudicator found that relator was discharged for misconduct and disqualified from receiving benefits. After a telephone hearing in which relator participated, the unemployment law judge determined that relator was discharged because of employment misconduct.  The SURJ reviewed the evidence, considered written arguments, and also determined that relator was discharged for misconduct. 

            "Whether an employee engaged in conduct that disqualifies the employee from unemployment benefits is a mixed question of fact and law."  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  Factual findings will not be reversed if there is evidence in the record reasonably supporting them.  Id.  But whether a particular act constitutes disqualifying misconduct is a question of law reviewed de novo.  Id.

            An employee who is discharged for employment misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4(1) (Supp. 2003).  The relevant statutory definition for employment misconduct provides:

                                    Employment misconduct means any intentional, negligent, or indifferent conduct, on the job or off the job (1) that evinces a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee, or (2) that demonstrates a substantial lack of concern for the employment.

 

                                    Inefficiency, inadvertence, simple unsatisfactory conduct, a single incident that does not have a significant adverse impact on the employer, conduct an average reasonable employee would have engaged in under the circumstances, poor performance because of inability or incapacity, good faith errors in judgment if judgment was required, or absence because of illness or injury with proper notice to the employer, are not employment misconduct.

 

Minn. Stat. § 268.095, subd. 6(a) (Supp. 2003).   

            Relator, pro se, argues that the alleged misconduct fell within the statutory exception of "a single incident that does not have a significant adverse impact on the employer."  In his defense, relator claims that he left because he could not take the stress of working with life-threatening unsafe conditions; that he had previously complained about unresolved safety  issues; that the company never mentioned any significant adverse impact; that the supervisor never said he could not leave; that it is virtually impossible to get fired in a union shop; and that his position was not required to keep production running.   

            This court must determine whether the conduct was a "serious violation" of a standard that "the employer had a right to reasonably expect" of its employees and whether the violation had "a significant adverse impact on the employer."   As the SURJ noted, respondent considered an employee leaving his job without permission as an act justifying suspension pending termination.  Employers have the right to create and enforce reasonable rules relating to absenteeism.  Jones v. Rosemount, Inc., 361 N.W.2d 118, 120 (Minn. App.1985).  Relator had a written copy of the rule.  Respondent characterized a violation of this rule as a "Group 1" violation, which meant it was considered one of the most serious rule violations and received the most severe penalty. 

            The SURJ found that relator's conduct was an incident with a "significant adverse impact" on respondent because (1) the rule indicated that leaving was a dischargeable act and (2) respondent had to find a replacement for relator in the middle of his shift.  It can reasonably be inferred that respondent's rule reflected its policy decision that it would not tolerate an employee leaving a shift without permission because it would adversely impact the workplace or production.  Clearly, there was an adverse impact on work at the plant when relator left his shift six hours early and his supervisor had to find a replacement in the middle of the night.

            Furthermore, an employee who does not give proper notice of his absence and fails to comply with company attendance policies demonstrates a lack of concern for the employment and commits disqualifying misconduct. See Edwards v. Yellow Freight Sys., 342 N.W.2d. 357, 359 (Minn. App.1984). Here, relator's supervisor did not receive proper notice that relator had left the premises.  The supervisor told relator that he would attend to the safety concern and immediately took action to remedy the problem.  While the supervisor was attending to the safety concern, relator told him he was leaving because he was not going to work in an unsafe place and was going to punch out.  Relator's supervisor first saw to remedying the problem; he then went to find relator.  Less than fifteen minutes after relator had notified his supervisor of the unsafe condition, relator had punched out.  Relator's notice was neither adequate nor "proper" under these circumstances. 

            Because substantial facts in the record demonstrate disqualifying misconduct and do not demonstrate that relator's conduct fell within an exception to the definition, we affirm the SURJ's determination that relator committed disqualifying misconduct.

            Affirmed.