William R. Schreiner, Relator, vs. Belair Builders, Inc., Respondent, Commissioner of Economic Security, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1998).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-99-1683

 

William R. Schreiner,

Relator,

 

vs.

 

Belair Builders, Inc.,

Respondent,

 

Commissioner of Economic Security,

Respondent.

 

Filed May 16, 2000

Affirmed Willis, Judge

 

Department of Economic Security

File No. 77599

 

William R. Schreiner, 6417 Rath Drive, Woodbury, MN  55125 (pro se relator)

 

Belair Builders, Inc., 2200 Old Highway 8, New Brighton, MN  55112 (respondent)

 

Kent E. Todd, Minnesota Department of Economic Security, 390 North Robert Street, St. Paul, MN  55101 (for respondent Commissioner)

 

            Considered and decided by Toussaint, Chief Judge, Willis, Judge, and Huspeni, Judge.*

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

Pro se relator William R. Schreiner challenges the denial of reemployment-insurance benefits, arguing that he quit his employment because (1) the hourly wage was lower than that paid by previous employers; (2) the job site was unsafe; (3) he was required to document his attendance at safety meetings that he was unable to attend; and (4) the work was unsuitable.  Because Schreiner has not demonstrated a good reason caused by his employer for quitting his employment, we affirm.

FACTS

            Schreiner worked for respondent Belair Builders, Inc. (Belair), as a compactor operator from November 11, 1998, through December 3, 1998.  Schreiner was a union member with experience as a compactor operator, and Belair obtained his services through the union hall.  Schreiner testified that he assumed that he would be paid $22.02 per hour, as in his previous employment as a compactor operator.

            When Schreiner received his first paycheck, he discovered that he was being paid $17.77 per hour and asked his field supervisor, Robert Thibault, why he was not being paid at the higher hourly rate.  On the morning of December 3, 1998, Thibault told Schreiner that $17.77 was the union pay scale for compactor operators.  In response, Schreiner told Thibault that if Thibault could not "fix the pay scale," he could "find somebody else" to operate the compactor.  Schreiner worked until the end of the day and did not return.

            Schreiner testified that he also quit, in part, because Belair violated Occupational Safety and Health Administration (OSHA) regulations by allowing unqualified workers to operate heavy equipment and by requiring him to sign an attendance sheet each week indicating his attendance at mandatory safety meetings that his work schedule precluded him from attending. 

D E C I S I O N

            This court reviews the factual findings of the commissioner's representative in the light most favorable to the decision and will not disturb those findings if there is evidence in the record that reasonably tends to sustain them.  Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996).

An employee who quits his job is disqualified from receiving reemployment insurance benefits unless he quit for a good reason caused by his employer.  Minn. Stat. § 268.095, subd. 1(1) (1998). 

A good reason caused by the employer for quitting is a reason:

(1) that is directly related to the employment and for which the employer is responsible; and

(2) that is significant and would compel an average, reasonable worker to quit.

 

Minn. Stat. § 268.095, subd. 3(a) (1998).  Whether an employee had a good reason to quit caused by the employer is a question of law, which this court reviews de novo.  Kehoe v. Minnesota Dep't of Econ. Sec., 568 N.W.2d 889, 890 (Minn. App. 1997).  The burden is on the employee to show good reason for quitting caused by the employer.  Zepp v. Arthur Treacher Fish & Chips, Inc., 272 N.W.2d 262, 263 (Minn. 1978).

Schreiner argues that because Belair paid him only $17.77 per hour, rather than the $22.02 per hour paid by his previous employer, the lower wage provided a good reason caused by his employer for quitting.  But because Schreiner admitted that $17.77 per hour was the union pay scale for a compactor operator and also admitted that he had not been promised $22.02 per hour, the record supports the determination of the commissioner's representative that the wage received did not provide Schreiner with a good reason caused by the employer for quitting. 

Schreiner also argues that Belair's alleged violations of OSHA regulations qualify as good reasons caused by the employer for quitting.  But even if an employee's concerns with unsatisfactory working conditions were reasonable at the time of quitting, to be eligible for reemployment-insurance benefits, the employee must have brought his concerns to the attention of the employer before quitting, to give the employer an opportunity to correct the situation.  Larson v. Department of Econ. Sec., 281 N.W.2d 667, 669 (Minn. 1979); see Haskins v. Choice Auto Rental, Inc., 558 N.W.2d 507, 511 (Minn. App. 1997).  If the employee did not notify the employer of the concerns, the resulting unemployment is not the result of quitting for a good reason caused by the employer.  Larson, 281 N.W.2d at 669.

Schreiner admitted that he did not personally bring his concerns to the attention of Belair, but asserts that under his union contract, a union representative has the authority to act as a direct representative of an employee and that his union representative notified Belair of Schreiner's concerns.  But although Schreiner testified that he "called in the union," he also testified that, as of the afternoon of the day he quit, he had not yet spoken with the union representative.  Accordingly, the record supports the determination of the commissioner's representative that Schreiner did not bring his concerns about alleged OSHA violations to the attention of his employer before quitting to give Belair an opportunity to correct the situation.  Therefore, those concerns were not a good reason to quit caused by Schreiner's employer.

            Schreiner also contends that he quit because the work was unsuitable.  See generally Minn. Stat. § 268.095, subd. 1(3) (1998) (allowing claimant to quit without good reason caused by the employer where within 30 calendar days of beginning employment that was unsuitable).  Because Schreiner testified that he had operated identical equipment and performed similar work during his previous employment, the record supports the determination of the commissioner's representative that the work at Belair was suitable for Schreiner.

            On appeal, Schreiner asserts that he meets the criteria for the exception to disqualification in Minn. Stat. § 268.095, subd. 1(5) (1998), and is therefore entitled to reemployment-insurance benefits.  But Schreiner did not raise this argument in the prior proceedings and, therefore, it is waived on appeal.  See Jaakola v. Duluth/Superior Area Educ. Television Corp., 374 N.W.2d 215, 217 (Minn. App. 1985). 

            The record reasonably supports the factual findings of the commissioner's representative, and it was not error to conclude that Schreiner did not adequately demonstrate that he quit for a good reason caused by his employer. 

            Affirmed.

           

                * Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.