This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ß 480A.08, subd. 3 (2000).
IN COURT OF APPEALS
James D. Parker,
IND School District #831,
Commissioner of Economic Security,
Department of Economic Security
File No. 575900
James Parker, 1732 S.E. Beach Drive, Forest Lake, MN 55025 (pro se relator)
Kent E. Todd, 390 North Robert Street, St. Paul, MN 55101 (for respondent Commissioner of Economic Security)
††††††††††† Considered and decided by Schumacher, Presiding Judge, Shumaker, Judge, and Lindberg, Judge.
U N P U B L I S H E D†† O P I N I O N
Pro se relator James Parker appeals the Commissioner of Economic Securityís decision that he is ineligible for unemployment compensation, arguing that (1) he was not reasonably assured of employment that was not substantially less favorable than his previous yearís employment and (2) the commissionerís representative improperly vacated his initial decision and remanded the matter for a second evidentiary hearing.† Parker also contends that the transcripts of the evidentiary hearings are inaccurate and that the record is incomplete.† We affirm.
James Parker is a regular-route bus driver with Independent School District No. 831.† The parties do not dispute that Parker is a school district employee under the terms of a collective bargaining agreement between Parkerís union and the school district.† The agreement provides that school bus drivers remain employees of the district during the period between school years.† Shortly before a new school year, regular-route drivers bid on the bus routes available for that year.† The routes must provide at least five hours of driving per day and are awarded on the basis of driver seniority.
††††††††††† Parker drove a regular route during the 1999-2000 school year, working approximately six and one-half hours per day.† After the school year ended, Parker sought unemployment benefits on the ground that he would not know whether he would receive a route for the following school year until the end of August, after route bidding was completed.
The Department of Economic Security determined that Parker was ineligible for unemployment benefits because he was given a reasonable assurance of continued employment during the next school year.† Parker appealed and, after a hearing at which the school district was not present, an unemployment law judge reversed the determination, finding that Parker had only been given the opportunity to bid and that no route was assured.† The school district appealed.† The commissionerís representative affirmed the decision of the unemployment law judge but vacated the affirmance 13 days later and remanded the matter for an evidentiary hearing.† After the second hearing, a different unemployment law judge affirmed the departmentís initial determination.† Parker appealed, and the commissionerís representative affirmed.† Parker now seeks certiorari review of the commissionerís decision.
D E C I S I O N
Generally, a school employee is ineligible for unemployment benefits if the employee has a reasonable assurance that the employee will have employment during the following school year that is not substantially less favorable than the employment of the prior school year.† Minn. Stat. ß 268.085, subd. 7 (2000).† Parkerís primary argument on appeal concerns the meanings of the terms ďreasonable assuranceĒ and ďsubstantially less favorableĒ in this statute.† The construction of a statute is a question of law.† Lolling v. Midwest Patrol, 545 N.W.2d 372, 375 (Minn. 1996).† This court is not bound by the commissionerís representativeís conclusions of law.† Ress v. Abbott N.W. Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).
††††††††††† The commissionerís representative concluded that Parker had a reasonable assurance of employment for the 2000-2001 school year because ď[t]he evidence shows that during the past 10 years, the [school district] has provided work for every regular bus driver who has bid on a position for the regular school year.Ē† Parker argues that because the number of drivers who bid for a route may exceed the number of available routes, there is no guarantee that every driver will receive a route.† And because the bidding process does not provide a guarantee of a regular route, Parker continues, he did not have a reasonable assurance of employment.
††††††††††† But the statute does not require that employment be guaranteed.† The school district considered Parker a continuing employee and expected him to return for the 2000-2001 school year.† Parker was never told that he might not receive a route if he participated in the bidding process.† Parkerís supervisor testified at the second evidentiary hearing that there were 83 routes available for that year, and Parkerís seniority number was 82 out of 96 regular-route drivers.† These facts demonstrate that Parker had reasonable assurance of employment.
††††††††††† The commissionerís representative also concluded that Parkerís employment for the 2000-2001 school year would not be substantially less favorable than his employment during the previous year.† Parker contends that, because the minimum route guarantee of five hours provided by the collective bargaining agreement is one and one-half hours less than the six and one-half hours of his 1999-2000 route, he could have received employment that was substantially less favorable.
††††††††††† But Parker overlooks the nature of regular-route employment and the intent of the minimum-hours guarantee in the collective bargaining agreement.† The school district has the authority to determine the number of routes and the hours of each route.† The collective bargaining agreement is intended to provide some stability to the school districtís regular-route drivers by requiring a minimum number of hours for each route.† Above that minimum, any specific route and its associated hours may change, at the discretion of the school district.
††††††††††† This fluctuating nature of regular-route employment is analogous to that of a substitute teacher.† In Ykovchick v. Pub. Sch. of Minneapolis, 312 Minn. 139, 251 N.W.2d 626 (1977), the supreme court considered a substitute teacherís claim that, because he worked on an on-call basis, he could not determine when his services would again be required and was therefore eligible for unemployment benefits.† The court rejected this argument, noting that ď[t]he position * * * sought was that of a substitute teacher, which by its very nature involves sporadic employment.Ē† 312 Minn. at 142, 251 N.W.2d at 628.† Similarly, above the minimum-hours guarantee of the collective bargaining agreement, the nature of Parkerís employment involved uncertain and potentially sporadic hours.
††††††††††† Further, because the collective bargaining agreement in effect during Parkerís August 2000 bid was also in effect during the 1999-2000 school year, Parker was guaranteed the same five-hour minimum route for the 2000-2001 school year.† Parkerís employment for the 2000-2001 school year would have been substantially similar to his employment in the previous year.
††††††††††† Parker questions whether the commissionerís representative followed proper procedure remanding the matter after he had already made an initial decision.† The commissionerís representative, on November 7, 2000, affirmed the decision of the first unemployment law judge, but issued an order on November 20, 2000, vacating the affirmance and remanding for an evidentiary hearing.† Although the record is unclear, the commissionerís representative apparently did so because the school district did not receive notice of the first hearing and thus did not have the opportunity to present evidence.
††††††††††† Until jurisdiction is lost by appeal or until expiration of the time allowed by statute for review, an administrative agency has inherent authority to correct an adjudication that appears to be erroneous.† Stearns-Hotzfield v. Farmers Ins. Exch., 360 N.W.2d 384, 389 (Minn. App. 1985).† The commissionerís representative vacated the affirmance within the 30-day review period provided for by statute.† See Minn. Stat. ß 268.105, subd. 2 (2000).† Parker received notice of the new hearing, and he presented evidence and argument at the hearing.
††††††††††† Parker also asserts that the commissionerís representative allowed written argument from the school district but not from him.† Parker is evidently referring to a three-page letter brief faxed by the school district to the departmentís appeals office on September 11, 2000.† But there is no record that the commissionerís representative asked the school district to submit written argument, and in any event, the November 7, 2000, decision for which the letter brief would have been considered was vacated.
††††††††††† Parker claims that the transcript of the evidentiary hearings is inaccurate and that the record is incomplete.† These claims are not significant.† First, the two errors in the transcript cited by Parker are clearly insubstantial, and a complete reading of the transcript demonstrates that it is sufficiently accurate for this court to conduct a meaningful review of the issues on appeal.
Second, Parker asserts that a document from the department is not included in the record.† Parker is referring to the initial determination letter from the department, and it is included in the record as an exhibit.
*† Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, ß 10.