This opinion will be unpublished and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

C2-02-1370

 

Gerald L. Nelson,
Relator,

vs.

Leaf Industries, Inc.,
Respondent,

Commissioner of Economic Security,
Respondent.

 

Filed June 10, 2003

Affirmed

Wright, Judge

 

Department of Economic Security

File No. 1232001

 

 

Gerald Nelson, P.O. Box 162, South Haven, MN† 55382 (pro se relator)

 

Leaf Industries, Inc., 13310 Industrial Boulevard, Plymouth, MN† 55441 (respondent)

 

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

 

 

††††††††††† Considered and decided by Wright, Presiding Judge, Randall, Judge, and Shumaker, Judge.

 

U N P U B L I S H E D† O P I N I O N

 

WRIGHT, Judge

†††††††††††

Relator Gerald Nelson appeals from the Commissioner of Economic Securityís denial of unemployment benefits, arguing that he is entitled to unemployment benefits because he quit his employment for good reasons attributable to his employer.† We affirm.

FACTS

 

Leaf Industries, Inc. hired Nelson as a press brake operator on May 3, 1999.† In July 2000, Nelson informed management that his 12-month performance review was eight weeks late.† The performance review would result in a wage increase that would be effective on the date of review.† Nelson received his review 11 weeks late, but Leaf Industries did not make Nelsonís pay increase retroactive.† Nelson did not seek compensation for the lost pay.†

On June 22, 2001, Nelson told his supervisors that he believed his foreman was using illegal drugs to stay awake during his shift.† Nelson reported that his foreman would occasionally lose control and act in an unsafe manner.† The specific nature of the foremanís unsafe work practice was not disclosed.† Nelson repeated his concerns in July.† In response to Nelsonís complaints, a supervisor warned the foreman about his behavior and asked whether he was using drugs.† The foreman denied any drug use.† Over the next month, the foreman was observed closely by his supervisors, who did not detect any unusual behavior.† Leaf Industries did not ask Nelsonís foreman to undergo a drug test.†

On July 23, 2001, Nelson reported to his employer that his car had broken down and requested to take the day off.† Nelsonís request was approved by one of his managers. †The next day, another manager advised Nelson that he would have to make up the unexcused absence by working his regularly scheduled day off.† Nelson refused to comply with this requirement.† Instead of working as directed, Nelson spent the day remedying his car problems.†

Six months earlier, Leaf Industries changed its shift structure.† Prior to these changes, Nelson worked four ten-hour days, from 3:00 p.m. to 1:30 a.m. (the night shift).† Under the new shift structure, employees worked three twelve-hour days, from 6:00 a.m. to 6:30 p.m. (the day shift).† Nelson attended an employee meeting on August 20, 2001, during which Leaf Industries advised that it would resume the original night-shift schedule.† At this meeting, employees were provided a forum for questions and comments.† Nelson learned that he would return to the night shift.†

On August 22, the last day before the schedule change, Nelson notified his foreman that he would be quitting at the end of the day.† When called to his supervisorís office to discuss the matter, Nelson refused to meet with his supervisor.† Nelson did not return to work after August 22.†

Nelson filed a claim for unemployment benefits.† A department adjudicator determined that Nelson was disqualified from receiving unemployment benefits because he quit his job without a good reason caused by the employer.† Nelson appealed, and an unemployment law judge affirmed the denial of benefits.† On appeal to the commissionerís representative, the case was remanded for further evidentiary findings.[1]

At the hearing on remand, Nelson was asked how the foremanís alleged drug use threatened his safety.† Nelson testified that, from time to time, he was required to help operate the foremanís press brake, a machine that required two people to operate.† While Nelson held a metal piece in place by positioning his arms near the machineís ram area, the foreman activated the machine by stepping on a foot pedal.† Nelson testified that the foreman sometimes tripped the machine before his arms were in position, forcing him to quickly withdraw his arms from the machineís moving parts.† He testified that this procedure was a common practice.† The unemployment law judge again denied Nelsonís unemployment-benefits claim, finding that Nelson quit his employment and that no exception to disqualification applied.†

On his second appeal, the commissionerís representative affirmed the decision to deny unemployment benefits, specifically finding that (1) Nelson quit because he was unhappy about his shift reassignment, (2) Nelsonís complaints over the timing of his pay increase and lost vacation pay did not influence his decision to quit, and (3) Leaf Industries adequately responded to Nelsonís complaint about his foremanís drug use.† This appeal followed.†

 

D E C I S I O N

 

I.

 

Nelson argues that the commissioner erred in denying unemployment benefits because he quit for good reasons caused by Leaf Industries.† Specifically, he contends that the delayed performance review, the revoked paid-vacation day, the inadequate response to his foremanís drug use, and the shift change constitute good reasons to quit.

On appeal, we review the commissionerís findings, not those of the unemployment law judge.† Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).† We review findings of fact in the light most favorable to the commissionerís decision and will not disturb them if there is evidence that reasonably tends to sustain them.† Ress v. Abbott N.W. Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).† An employee who quits employment is disqualified from unemployment benefits unless the employee quits for a good reason caused by the employer.† Minn. Stat. ß 268.095, subd. 1(1) (2002).† On established facts, whether an employee had ďgood reasonĒ to quit is a question of law that we review de novo.† Ress, 448 N.W.2d at 523.†

A good reason to quit is ďdirectly related to the employment * * * for which the employer is responsibleĒ and so significant that it would ďcompel an average, reasonable worker to quit and become unemployed rather than remain[] in the employment.Ē† Minn. Stat. ß 268.095, subd. 3(a)(1), (2) (2002).† The test for reasonableness is as applied to the average man or woman, and not to the supersensitive.† Ferguson v. Depít of Employment Servs., 311 Minn. 34, 44 n.5, 247 N.W.2d 895, 900 n.5 (1976).† A good personal reason to quit, however, does not equate with a good reason caused by the employer.† Edward v. Sentinel Mgmt. Co., 611 N.W.2d 366, 368 (Minn. App. 2000) (citation omitted), review denied (Minn. Aug. 15, 2000).

A substantial adverse change in the terms of employment, including employee wages and hours, constitutes good reason for an employee to quit.† Minn. Stat. ß 268.095, subd. 3(c) (2002).† Adverse working conditions may also constitute good reason to quit, but the employee must make his or her employer aware of the adverse conditions, and the employer must have a reasonable opportunity to correct the situation.† Id., subd. 3(b) (2002).† If the employee fails to report adverse working conditions to his or her employer before quitting, the employee ďforecloses a finding of good cause attributable to the employer.Ē† Burtman v. Dealers Disc. Supply, 347 N.W.2d 292, 294 (Minn. App. 1984), review denied (Minn. July 26, 1984).††

Nelson argues that his delayed performance review and pay increase influenced his decision to quit.† The commissionerís representative rejected this claim.† Thus, we must determine whether there is evidence that reasonably tends to sustain the commissionerís representativeís findings.† Our review of the record establishes that, while Nelson lost pay because of Leaf Industriesí delay, he worked an additional 13 months without ever raising the issue of lost wages.† The evidence supports the commissionerís representativeís determination that the delayed performance review did not cause Nelson to quit his job.

††††††††††† Nelson next argues that the lost vacation pay caused him to quit.† The commissionerís representative also found facts contrary to this claim.† The record supports the commissionerís representativeís findings.†† After initially approving Nelsonís request, a manager advised him that he would have to make up the ďunexcused absence.Ē† Nelson failed to do so and was not paid for the missed hours.† Nelson quit his job nearly a month after this incident.† Likewise, this delay and Nelsonís failure to raise his complaint with his employer lead us to conclude that the commissionerís representativeís findings are supported by the evidence.††

Nelson next contends that he was subject to adverse working conditions.† He argues that the commissionerís representative erred in concluding that Leaf Industries adequately addressed his complaints about his foremanís drug use.† In response to Nelsonís complaint, the foreman was warned about his behavior and observed to detect any indication of drug use.† The foreman was also confronted about the allegations of his drug use, which the foreman denied.† Nelson argues that Leaf Industries should have given the foreman a drug test.† But without observing any of the unusual or unsafe behavior that Nelson described, we conclude that Leaf Industries took reasonable steps to address Nelsonís complaints.† Nelsonís claim that what he perceived[2] as inaction constituted good cause to quit lacks merit in light of the reasonable steps taken to address Nelsonís complaint.

When Nelson initially complained about the foremanís suspected drug use, Nelson also complained that the foreman created an unsafe work environment.† In cases involving safety, we examine whether the employeeís concerns were reasonable at the time of quitting.† Haskins v. Choice Auto Rental, Inc., 558 N.W.2d 507, 511 (Minn. App. 1997).† Even if the concerns are reasonable, an employeeís failure to complain about the problematic conditions before quitting forecloses an award of benefits.† Parnell v. River Bend Carriers, Inc., 484 N.W.2d 442, 445 (Minn. App. 1992).†

At the time of the complaint, Nelson offered a generalized complaint about the resulting lack of safety.† At the unemployment benefits hearing, Nelson stated for the first time that, on more than one occasion, the foreman had prematurely activated the press brake while Nelsonís arms were in the machineís ram area.† Despite opportunities to raise his concern about the foremanís operation of the press brake with the foremanís supervisor, Leaf Industriesí safety committee, or through an anonymous tip box, Nelson failed to do so.† Nelson testified that he never said anything because he considered the procedure ďcommon practice.Ē† The commissionerís representativeís determination that Leaf Industries adequately responded to Nelsonís complaints about his foreman is supported by substantial evidence.† During the observation period, the foremanís operation of the press brake was not observed to be unsafe.† Moreover, correction of the unsafe condition, if it existed, was hindered by Nelsonís failure to specify the nature of his safety concerns.

Finally, Nelson argues that the commissionerís representative erred in concluding that Nelson is not entitled to unemployment benefits because Nelson quit as a result of his reassignment to the night shift.† Nelson does not contest the factual findings as to this cause for quitting.† Thus, we review de novo whether the shift change constitutes a ďgood reasonĒ to quit.† Ress, 448 N.W.2d at 523.† An adverse change in work schedule, which results in a breach of the employment agreement, is a good reason for quitting caused by the employer.† Minn. Stat. ß 268.095, subd. 3(c); Krantz v. Loxtercamp Transp., Inc., 410 N.W.2d 24, 26-27 (Minn. App. 1987); Baker v. Fanny Farmer Candy Shops No. 154, 394 N.W.2d 564, 566 (Minn. App. 1986).† But the employee must first notify the employer that the change is unacceptable and give the employer an opportunity to correct the schedule.† Minn. Stat. ß 268.095, subd. 3(b); see, e.g., Krantz, 410 N.W.2d at 26-27 (finding good cause for quitting when truck driver quit after notifying employer he would only work the schedule promised to him when he was hired); Baker, 394 N.W.2d at 566 (finding salesperson, who was hired with the specific understanding that she would not have to work night shift, had good cause to quit when she was transferred to the night shift and complained to her supervisors).†

When Leaf Industries hired Nelson, he did not place specific limitations on the hours, shifts, or schedule that he agreed to work.† Nelson also did not object when the company reassigned him to the day shift.† Instead, he worked the day shift for approximately eight months.† When Leaf Industries reassigned Nelson to the night shift, he was scheduled to resume the shift he originally agreed to work.† But even if the shift change constituted a breach of the employment agreement, to be entitled to unemployment benefits, Nelson was obligated to raise his concerns with his employer before quitting.† See Krantz, 410 N.W.2d at 26-27.† Nelson did not raise his concerns at the employee meeting when Leaf Industries announced the shift change.† After learning of Nelsonís intentions to quit, Nelsonís supervisor attempted to discuss Nelsonís concerns, but Nelson refused.† Moreover, Leaf Industries attempted to accommodate Nelsonís shift preference by proposing to find another employee to switch shifts with Nelson.† On these facts, we conclude that the commissionerís representative correctly determined that the change in Nelsonís work schedule was not a good reason to quit.†

Because our review of the record establishes that Nelson quit his employment without good cause attributable to his employer, the denial of unemployment benefits was proper.†

††††††††††† Affirmed.†

 

 

 

 



[1]† Because Nelson had a problem with his telephone, he did not participate in the first evidentiary hearing.† The commissionerís representative remanded the matter to gather additional evidence.†

[2] Indeed, Nelson first learned of Leaf Industriesí investigation of the foreman from the recorded minutes of the first evidentiary hearing.