This opinion will be unpublished and
may not be cited except as
Minn. Stat. § 480A.08, subd.
STATE OF MINNESOTA
IN COURT OF APPEALS
& Shea Welding & Fabricating,
of Employment and Economic Development,
Filed January 3, 2006
Toussaint, Chief Judge
of Employment and Economic Development
No. 18718 04
Philip G. Yukich, 2814 2nd Avenue West, Hibbing, MN 55746-2017
(pro se relator)
Furin & Shea Welding
& Fabricating, 1432 East 34th Street, Hibbing, MN 55746-3524 (respondent)
Linda A. Holmes, Department
of Employment and Economic Development, 332 Minnesota Street, Suite E200, St. Paul, MN
55101-1351 (for respondent Department of Employment and Economic
and decided by Randall, Presiding Judge; Toussaint, Chief Judge; and Dietzen,
U N P U B L
I S H E D O P I N I O N
TOUSSAINT, Chief Judge
challenges the decision of the senior unemployment review judge (SURJ), who
adopted the findings of the unemployment law judge (ULJ) that relator was
disqualified from receiving unemployment benefits. The disqualification was based on the fact
that relator had quit his employment to accept other employment that was not
for substantially better terms and conditions.
Because the record supports the findings and because, even under
relator’s version of facts, he did not leave his position for one that provided
substantially better terms and conditions of employment, we affirm.
D E C I S I
court will review the ULJ’s findings as adopted by the SURJ in the light most
favorable to the decision and will not reverse as long as the evidence
reasonably supports the findings. See Schmidgall
v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).
Whether the person’s disqualification was proper is a question of law
reviewed de novo. Markel v. City of Circle Pines, 479 N.W.2d 382, 384 (Minn. 1992).
who quits employment is disqualified from receiving unemployment benefits
unless an exception applies. Minn. Stat.
§ 268.095, subd. 1 (2004). The
exception, if any, that applies here is the so-called “better job” exception,
which provides that the person is not disqualified if
applicant quit the employment to accept other covered employment that provided substantially better terms and
conditions of employment, but the applicant did not work long enough at the
second employment to have sufficient subsequent earnings to satisfy the disqualification
that would otherwise be imposed under subdivision 10 for quitting the first
Minn. Stat. § 268.095, subd. 1(2) (2004) (emphasis added).
Yukich gave notice to his employer, respondent Furin & Shea Welding &
Fabricating, that he would be quitting his job to return to his previous
employer, Superior Industries. Although
he planned to start work with Superior
immediately after quitting Furin & Shea, the job did not materialize. He asked to return to Furin & Shea but was
told his position had been eliminated. He
then sought unemployment benefits. The
ULJ, in the findings adopted by the SURJ, determined that because the new
position was virtually identical to the previous position, the better-job
exception to the disqualification for quit did not apply, and Yukich was
disqualified from receiving benefits.
raises a number of issues. First, he
argues that his initial application for benefits to the department had been
denied because Superior
had falsely stated in the questionnaire it submitted to the department that it
had not offered him a job. While the
department initially ruled that Yukich was disqualified because he did not have
a bona fide offer, the ULJ thereafter found that there had been a bona fide
offer. Thus, Yukich prevailed on this
Yukich argues that Superior’s
second questionnaire submitted to the department also contained false
information. He argues that its
statement that the job offer was made on October 24 was incorrect and that it
was instead made on October 13. The ULJ
determined that the job offer was made on October 24. This finding was supported by the evidence in
the record, namely the second questionnaire, and is not clearly erroneous. Further, the date of the job offer is not
relevant to the issue of his disqualification from benefits.
Yukich challenges the ULJ’s finding that the Superior
job offer was for $14 an hour. Superior’s second
questionnaire states that the job offer was for $14 an hour, while Yukich testified
that the offer was for $14.50 an hour.
Again, this finding is supported by the record and is not clearly
erroneous. Further, even if the offer
was $14.50, rather than $14 an hour, this is not legally significant. The statute provides that the exception
applies when the employee quits for “substantially better terms and
conditions.” Minn. Stat. § 268.095,
subd. 1(2). Here, the difference between
$14 an hour and $14.50 an hour is 3.6 percent, which is not “substantially
better” as a matter of law. See Sunstar
Foods, Inc. v. Uhlendorf, 310 N.W.2d 80, 84 (Minn. 1981) (addressing issue of whether
employee had good cause for separation due to substantial adverse change in
wages, noting that while fifteen percent decrease was substantial, two to four
percent decrease was not).
Yukich challenges the determination that the Superior
job was seasonal. The second
questionnaire indicated that the job was seasonal. Further, this is consistent with the
explanation that the Superior job offer was based
on a specific contract, which could support the determination that the job was
a seasonal one. Again, the finding is
supported by the record. Further,
whether the job was seasonal is not relevant to the issue of disqualification.
contends that procedure was unfair because the ULJ told him he could not
dispute the accuracy of the first questionnaire. The transcript indicates that the ULJ asked
whether he objected to the inclusion of the document in the record. He indicated he objected. The ULJ stated that she understood that he
objected to the content, and that she would have to make a credibility
determination on that issue, but that the objection to the facts was not a
reason not to include it in the record.
Further, the ULJ ultimately did not credit the statement in the first
questionnaire that Superior did not offer him a
job, but instead credited the information on the second questionnaire, in which
acknowledged that it had offered Yukich a job.
Yukich next argues
that he was not treated fairly at the hearing because the ULJ interrupted his
answers nine times, intimidating him and making him lose his train of thought. The ULJ “shall ensure that all relevant facts
are clearly and thoroughly developed.” Minn. Stat. § 268.105,
subd. 1(b). “The [ULJ] shall exercise
control over the hearing procedure in a manner that protects the parties’
rights to a fair hearing.” Minn. R. 3310.2921
(2005). “When a party is pro se, the ULJ
must help the party ‘to recognize and interpret the parties’ claims.’” Ntamere
v. Decisionone Corp., 673 N.W.2d 179, 180 (Minn. App. 2003) (citation omitted). When the ULJ interrupted Yukich, she was
attempting to ensure that he answered the questions put to him. Further, even under Yukich’s version of facts,
the ultimate result would not change because there was no evidence that Yukich
left his employment with respondent Furin for a better job with Superior.
Yukich argues that if he is unable to collect unemployment benefits based on
his employment with Furin & Shea, he should be able to collect them based
on his employment with Superior
because it falsely stated on the first questionnaire that it had not offered
him a job. He contends it did so to
avoid an increase in its unemployment tax rate.
This issue was not raised to the ULJ and cannot be raised for the first
time on appeal. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).
Because Yukich quit his employment and the statutory “better
job” exception does not apply, he is disqualified from receiving unemployment