may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
Commissioner of Employment and Economic Development,
Department of Employment and Economic Development
File No. 824703
Roger D. Simonson, 1330 Independence Avenue South, St. Louis Park, MN 55426-1866 (pro se relator)
Lee B. Nelson, M. Kate Chaffee, Minnesota Department of Employment and Economic Development, 390 Robert Street North, St. Paul, MN 55101 (for respondent commissioner)
Considered and decided by Lansing, Presiding Judge; Peterson, Judge; and Halbrooks, Judge.
U N P U B L I S H E D O P I N I O N
In this appeal from a decision by a representative of respondent Commissioner of Employment and Economic Development, relator challenges the determination that he is not eligible to receive special temporary extended unemployment compensation benefits for displaced airline related workers. We affirm.
Relator Roger D. Simonson was employed by Van Bergen & Markson, Inc. (VBM) from November 2000 through July 15, 2002. VBM is a distributor of pumps and filters that supplied equipment to construction contractors for Metropolitan Airport Commission projects and for the Hubert Humphrey Airport Terminal project.
Relator performed services for VBM and its sister company, PFC Equipment. PFC paid VBM for the services performed by relator, and VBM paid relator his salary. PFC is an industrial distributor of pumps, filters, and controls. Northwest Airlines is one of PFC’s customers. PFC acted as a manufacturer’s representative for various firms, which means that PFC made sales to customers and was paid a commission by the manufacturer for making the sale. Renee Bongiovani, an accounting specialist for PFC, testified that Northwest Airlines accounts for a very small percentage of PFC’s business.
In July 2002, relator established an unemployment benefit account with the Minnesota Department of Employment and Economic Development. On April 27, 2003, after exhausting his eligibility for regular unemployment benefits and for temporary extended unemployment compensation (TEUC) benefits, relator applied for additional TEUC benefits for displaced airline related workers (TEUC-A).
To determine relator’s eligibility for TEUC-A benefits, the department sent VBM a request for employer information regarding the nature of VBM’s business and the reason for relator’s separation from employment. The request for employer information was completed by VBM’s vice president, B.J. DeGroy. DeGroy indicated that relator did not work near an airport in services integrally connected to airport operations; VBM did not provide value-added production processes, component parts of other articles, or contract services directly to an airline or to a direct supplier of an airline for the airline’s use; and relator was not laid off due to a loss in business, in whole or in part, because of reductions in airline service or closure of an airport following the terrorist attacks of September 11, 2001, or resulting security measures. A department adjudicator determined that relator was not eligible to receive TEUC-A benefits, and relator appealed to an unemployment law judge.
At relator’s request, the department issued a subpoena compelling VBM to produce project tracking sheets for Metropolitan Airport Commission projects and a contract for the Hubert Humphrey Airport Terminal project. VBM did not produce the documents. The unemployment law judge found that the requested documents were irrelevant because VBM was a supplier for an airport project, not for an airline. Following an evidentiary hearing, the unemployment law judge affirmed the department adjudicator’s determination. Relator appealed to respondent Commissioner of Employment and Economic Development.
The commissioner’s representative found:
[VBM] was not a certified Air Carrier with a certificate issued under Chapter 411 of Title 49 of the United States Code. [Relator] did not work for the employer on-site at an airport. [Relator] did not work for the employer near an airport in services integrally connected to operations at the airport. The employer did not provide value-added processes, component parts of other articles, or contract services directly to an airline or to a direct supplier of an airline for an airline’s use. [Relator] did not have qualifying employment for TEUC-A purposes . . . .
[Relator] was not separated from employment because of a loss of business related to a reduction in services by an air carrier, the closure of an airport in the United States, or the military conflict with Iraq.
Based on those findings, the commissioner’s representative concluded that relator was ineligible for TEUC-A benefits and affirmed the unemployment law judge’s decision. Relator filed this certiorari appeal, seeking review of the commissioner’s representative’s decision.
An applicant’s entitlement to unemployment benefits shall be determined based upon that information available without regard to any common law burden of proof, and any agreement between an applicant and an employer shall not be binding on the commissioner in determining an applicant’s entitlement. There shall be no presumption of entitlement or nonentitlement to unemployment benefits.
Minn. Stat. § 268.069, subd. 2 (2002). Issues of fact are determined by a preponderance of the evidence. Minn. Stat. § 268.03, subd. 2 (2002). The factual findings of the commissioner’s representative are “viewed in the light most favorable to the decision, and if there is evidence reasonably tending to sustain them, they will not be disturbed.” White v. Metro. Med. Ctr., 332 N.W.2d 25, 26 (Minn. 1983). “When reviewing questions of law, this court is not bound by the [c]ommissioner’s conclusions of law but is free to exercise its own independent judgment.” Markel v. City of Circle Pines, 479 N.W.2d 382, 384 (Minn. 1992). A person’s eligibility for unemployment benefits is a question of law. See id. (whether an applicant is disqualified from receiving benefits is a question of law); see also O’Malley v. Ulland Bros., 549 N.W.2d 889, 892 (Minn. 1996) (application of a statute to the undisputed facts of a case involves a question of law subject to de novo review).
The construction of a statute is a question of law fully reviewable by an appellate court. Hibbing Educ. Ass’n v. Pub. Employment Relations Bd., 369 N.W.2d 527, 529 (Minn. 1985). A reviewing court is not bound by an agency’s interpretation of a statute. Arvig Tel. Co. v. Northwestern Bell Tel. Co., 270 N.W.2d 111, 114 (Minn. 1978). But an agency interpretation is entitled to some deference “where (1) the statutory language is technical in nature, and (2) the agency’s interpretation is one of long standing application.” Id. Statutory terms “generally should be construed according to their plain and ordinary meaning.” Nadeau v. Austin Mut. Ins. Co., 350 N.W.2d 368, 373 (Minn. 1984).
The statute governing TEUC-A benefits defines an “eligible individual” as:
an individual whose eligibility for temporary extended unemployment compensation under the Temporary Extended unemployment Compensation Act . . . is or would be based on the exhaustion of regular compensation under State law, entitlement to which was based in whole or in part on qualifying employment performed during such individual’s base period;
(1) The term “qualifying employment,” with respect to an eligible individual, means employment –
(A) with an air carrier, employment at a facility at an airport, or with an upstream producer or supplier for an air carrier; and
(B) as determined by the Secretary, separation from which was due, in whole or in part, to –
(i) reductions in service by an air carrier as a result of a terrorist action or security measure;
(ii) a closure of an airport in the United States as a result of a terrorist action or security measure; or
(iii) a military conflict with Iraq that has been authorized by Congress;
(2) the term “air carrier” means an air carrier that holds a certificate issued under chapter 411 of title 49, United States Code;
(3) the term “upstream producer” means a firm that performs additional, value-added production processes, including firms that perform final assembly, finishing, or packaging of articles, for another firm;
(4) the term “supplier” means a firm that produces component parts for, or articles and contract services considered to be a part of the production process or services for, another firm;
(5) the term “Secretary” means the Secretary of Labor; and
(6) the term “terrorist action or security measure” means a terrorist attack on the United States on September 11, 2001, or a security measure taken in response to such an attack.
Temporary Extended Unemployment Act of 2002, Pub. L. 108-11, 117 Stat. 607 (2003).
Under the plain language of the statute, to be eligible for TEUC-A benefits, an individual must have (1) worked in a type of employment specified in the statute and (2) separated from employment because of a qualifying reason. Relator argues that he was separated from employment due to VBM’s loss of business due to reductions in airline service following the terrorist attacks of September 11, 2001. DeGroy, however, specifically indicated that relator was not separated from employment because of a loss of business, in whole or in part, because of the reductions in airline service or closure of an airport following the terrorist actions of September 11, 2001. Also, even if we assume that relator’s work for PFC was qualifying employment under the statute, Bongiovani testified that Northwest Airlines accounts for only a very small percentage of PFC’s business. Therefore, the evidence supports the commissioner’s representative’s finding that relator was not separated from employment because of a loss of business related to a reduction in services by an air carrier or closure of an airport.
Relator argues that he was denied due process because VBM failed to comply with, and the department failed to enforce, the subpoena compelling VBM to produce project tracking sheets for Metropolitan Airport Commission projects and a contract for the Hubert Humphrey Airport Terminal project. Relator contends that the documents were needed to show that VBM is a supplier for the airport and, in turn, that VBM is a supplier for an air carrier because the airport is a direct supplier for an air carrier. But even if relator is correct that the airport is a direct supplier for an air carrier, and that employment with a supplier for a direct supplier for an air carrier is qualifying employment for TEUC-A benefits, the commissioner’s representative’s determination that relator is not eligible for TEUC-A benefits is still correct because relator was not separated from employment because of a qualifying reason.
Relator contends that he presented a strong circumstantial case that he was terminated due to decreased activity at the airport after September 11, 2001. But the commissioner’s representative found that relator “was not separated from employment because of a loss of business related to a reduction in services by an air carrier, the closure of an airport in the United States, or the military conflict with Iraq,” and DeGroy’s statements reasonably sustain this finding.
Relator argues that he was denied due process because VBM did not participate in the hearing before the unemployment law judge. But relator did not subpoena any witnesses from VBM to testify and did not subpoena any documentary evidence from VBM other than the information related to airport construction projects.
Relator also argues that DeGroy was not qualified to respond to the department’s request for information. But at the hearing before the unemployment law judge, relator expressly stated that he had no objection to the request for information completed by DeGroy being made part of the record.
Relator has not shown that the commissioner’s representative erred in determining that relator is not eligible to receive TEUC-A benefits or that he was harmed by an error of the commissioner’s representative. See Midway Ctr. Assoc. v. Midway Ctr., Inc., 306 Minn. 352, 356, 237 N.W.2d 76, 78 (1975) (burden of showing error rests upon party that asserts error, and reviewing court will not reverse unless error causes harm to appealing party).