This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ß 480A.08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-02-1680

 

James J. Koski,

Relator,

 

vs.

 

Interstate Energy, LLC,

Respondent,

 

Commissioner of Economic Security,

Respondent.

 

Filed May 13, 2003

Affirmed

Harten, Judge

Dissenting, Minge, Judge

 

Department of Economic Security

Agency File No. 4207-02

 

James J. Koski, 124 Onion River Road, Tofte, MN 55615 (pro se relator)

 

Interstate Energy, LLC, 11 Superior Street, Suite 508, Duluth, MN 55802 (respondent)

 

Lee B. Nelson, M. Kate Chaffee, Department of Economic Security, 390 North Robert Street, St. Paul, MN 55101 (for respondent Commissioner of Economic Security)

 

††††††††††† Considered and decided by Harten, Presiding Judge, Stoneburner, Judge, and Minge, Judge.

 

U N P U B L I S H E D†† O P I N I O N

 

HARTEN, Judge

†††††††††††

Relator, acting pro se, challenges the determination that he is not entitled to unemployment benefits in that he quit his job without good reason caused by his employer.† Because the commissionerís representativeís findings underlying that determination have the requisite evidentiary support, we affirm.

FACTS

 

††††††††††† In 1992 or 1993, relator James Koski began to work as a service technician for respondent Interstate Energy (IE), a propane and fuel oil distributor.† When relator was hired, he was informed of and agreed to IEís practice of requiring service technicians to be† on call every fourth week.† When on call, they received non-business-hour phone calls from customers.† They determined whether the appropriate response was having a fuel truck deliver immediately, making an immediate service call, or scheduling a service call during the next business day.† Service technicians were not paid for taking the phone calls, but for every service call they made, they were paid a minimum of three hours at their time-and-a-half rate.† Service calls often took much less than three hours.

††††††††††† Relator worked for IE for seven or eight years, during which he complied with these practices.† In 2000, he left to take a better job with another company, where he was not required to answer phone calls during off-duty hours. That company subsequently merged with IE, and, in May 2001, relator was rehired by IE and was again required to take phone calls during off-duty hours every fourth week.

††††††††††† On 16 January 2002, relator told an IE manager that he wanted compensation for taking phone calls.† The manager told him that if he did not want to conform to the existing policy he should turn in his keys, and offered to discuss the matter the following Monday.† Later that day, relator turned in his keys to the assistant manager.

Relator applied for unemployment benefits, and a department adjudicator determined that he was entitled to them because he was discharged for reasons other than misconduct.† IE appealed; after a hearing, an unemployment law judge (ULJ) determined that relator was entitled to benefits because he quit for a good reason caused by IE.† IE again appealed, and the commissionerís representative determined that relator quit without a good reason caused by IE and was not entitled to benefits.† Relator, acting pro se, challenges this determination.

 

D E C I S I O N

 

††††††††††† On appeal, a reviewing court must examine the decision of the commissionerís representative, rather than that of the unemployment law judge.† Kalberg v. Park & Recreation Bd., 563 N.W.2d 275, 276 (Minn. App. 1997).† Decisions of the commissionerís representative are accorded particular deference.† Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).† In the instant case, the commissionerís representative determined that relator quit without good reason attributable to his employer.† The determination that an employee quit without good reason attributable to the employer is a legal conclusion, but must be based on findings that have the requisite evidentiary support.† See Zepp v. Arthur Treacher Fish & Chips, Inc., 272 N.W.2d 262, 263 (Minn. 1978) (interpreting predecessor statute, requiring ďgood causeĒ attributable to employer).

††††††††††† The commissionerís representative found that, when relator became reemployed by IE, he was aware of IEís policies providing that when on call, service technicians: (1) were responsible for answering telephone calls to their homes after hours and on weekends; (2) were not paid for answering the phone; and (3) were paid a three hour minimum at time and a half for any service calls.† As a reason for his decision, the commissionerís representative noted that,

††††††††††† [relator] quit because he felt it was not fair to have to answer the telephones and not be paid for it.† However, he was paid a minimum of three hours [for] each service call he went on as a result of these telephone calls.† Although he would be paid for three hours of work on each call many of the calls would require less than three hours of service.† [Relator] was aware of [IEís] policies regarding after hours telephone calls when he became reemployed in May of 2001.† The factors which caused [relator] to quit this job would not have caused a reasonable employee to quit.

 

Relator testified that, during the period when he first worked for IE, he had answered phones during off-duty hours without pay.† He also testified that he decided to raise the issue because he was dissatisfied with a change in policy about the use of company vehicles and that he raised it by telling his manager,

††††††††††† I am still on call, you can call me if you wish, if I need to go but I donít feel as if I can honestly take responsibilities to answer the office telephone at my home on my own time and not get paid for these actions.

The manager testified that:

[Relator] came in the office and requested to be paid for answering phones to be on call after hours.† And I told him that company policy was, part of his job was to answer the calls after hours, policy.† And he felt he should be paid for it for answering the phones and I said itís not company policy and I canít pay you for it, and he said if youíre not gonna pay me for it Iím gonna sue yah.† I said * * * this is the third time weíve had the discussion on not following company policy.† If you feel you canít work here then itís time for probably you to leave, you probably need to turn your keys in.† At that time [relator] started to hand me the keys and then he changed his mind and I said, did you change your mind and he said I need to think about this for a while.† I said okay.† Iím gonna have to leave and go on a trip, Iíll talk to you Monday.† Anyway the next morning I called into the office and [the] assistant manager said that [relator] had turned in his keys later that day around four oíclock.

 

This testimony provides the requisite evidentiary support for the commissionerís representativeís findings underlying the determination that relator quit without a good reason caused by his employer.[1]

††††††††††† Affirmed.††††††

 

 


MINGE, Judge (dissenting)

††††††††††† I respectfully dissent.† I would remand this proceeding for reconsideration in light of the apparent determination by the U.S. Department of Labor that the Fair Labor Standards Act requires payment for time spent answering telephone calls such as those at issue in this case.† Since this Department of Labor ruling was not part of the record below, we cannot consider this issue on this appeal.† However, the fact that the appellant left employment because his employer refused to pay for time spent answering telephone calls raises important policy issues.† Was this Department of Labor ruling the law at the time the relator left employment?† If the policy was not yet announced by the time relator left employment but was the policy at the time of this appeal, does the newly announced policy apply retroactively?† If it is the federal law, would not an employeeís quit actually be a quit for good reason?† Can state unemployment benefit proceedings be conducted without regard to federal wage and hour law unless properly raised by the parties?† The commissioner should consider these matters, and if appealed, this court should rule on them after we have the benefit of the commissionerís position.

 

 



[1] With his brief, relator included documents not part of the record before the department adjudicator, the ULJ, and the commissionerís representative.† These documents show that, about four months after relator left IE, IE compensated technicians for answering the phone on their off-duty hours because of an unspecified Department of Labor decision.† We do not consider these documents because they are not properly before us.† See Minn. R. Civ. App. P. 110.01 (papers filed in the district court, exhibits and transcripts constitute the record on appeal); Minn. Stat. ß 268.105, subd. 2(c) (2002) (commissionerís decision made ďon the basis of that evidence submitted at the hearingĒ before the ULJ).†