This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Ricky C. Tate,
STS Manufacturing, Inc.,
Department of Employment and Economic Development,
Filed May 30, 2006
Dissenting, Minge, Judge
Department of Employment and Economic Development
File No. 4142 05
STS Manufacturing, Inc. 2500 West
County Road B, Building N,
Linda A. Holmes, Minnesota Department of Employment and Economic Development, First National Bank Building, 332 Minnesota Street, Suite E200, St. Paul, MN 55101-1351 (for respondent Department)
Considered and decided by Randall, Presiding Judge; Shumaker, Judge; and, Minge, Judge.
U N P U B L I S H E D O P I N I O N
Relator challenges the decision by the senior unemployment review judge (SURJ) that he was disqualified from receiving unemployment benefits because he had been discharged for misconduct. We conclude that (a) his failure to sign a warning worded as an admission did not constitute misconduct sufficient to preclude receipt of unemployment benefits; and (b) the finding that he reported for work intoxicated was not supported by the evidence. We reverse.
The company handbook states that using alcohol at work is prohibited unless authorized. The handbook provides a company policy of an initial oral warning, followed by a written warning, which the employee is asked to acknowledge by signing. The employee may be discharged for failure to sign the written warning.
On February 15, Tate received an oral warning from the plant manager for reporting to work with the smell of alcohol on his breath. On February 22, a few hours into his shift, Tate told the office manager that he might need to take time off for personal reasons. The office manager noticed the smell of alcohol on his breath and that his eyes were red and glassy and told Tate he would have to speak with the plant manager. She called the plant manager, who was in a meeting and told the second shift supervisor to send Tate home if he smelled of alcohol. After the shift supervisor reported that Tate smelled of alcohol, the plant manager spoke to Tate, and Tate was sent home.
The next day, the plant manager told Tate that he had a written warning that Tate needed to sign. The warning, which had already been signed by the plant manager, stated that Tate had been orally warned about the smell of alcohol on his breath and that the next time this happened, Tate would be terminated. The warning also stated that on February 22, Tate had been sent home for the day because of the smell of alcohol on his breath.
Tate refused to sign the warning and asked to speak with the company president. The president told Tate he would need to sign the warning or be terminated. Tate refused to sign the warning, stating it would be “like robbing a bank,” meaning that he would be admitting to something he did not do. The president then discharged him.
Tate established a benefits account with the Department of Employment and Economic Development. An adjudicator denied benefits, finding that Tate was discharged for employment misconduct and was disqualified from receiving benefits. After a hearing on appeal, an unemployment judge determined that Tate’s refusal to acknowledge that it was not permitted to report to work intoxicated constituted a repudiation of the employer’s safety policy and was employment misconduct. A senior unemployment review judge (SURJ) adopted the ULJ’s findings and decision as the final findings and decision of the department, and this certiorari appeal followed.
D E C I S I O N
An employee discharged for
misconduct is not eligible to receive unemployment benefits.
Whether an employee is disqualified
from receiving unemployment benefits is a mixed question of law and fact. Schmidgall
v. Filmtec Corp., 644 N.W.2d 801,
Generally, an employee’s refusal to
comply with an employer’s request is misconduct if that request is reasonable
and not unduly burdensome. Sandstrom v. Douglas Mach. Corp., 372
N.W.2d 89, 91 (
department contends that Tate’s behavior of appearing intoxicated at work
provides additional support for Tate’s termination. But the finding that Tate “reported to work
intoxicated” is erroneous because it lacks support in the record. Although this court cannot substitute its
judgment for that of the administrative body when its findings are supported by
the evidence, Vicker v. Starkey, 265
We recognize the importance of workplace safety and, in particular, of policies assuring that employees in safety-sensitive positions do not work impaired. But here the record does not support the SURJ’s findings that Tate was intoxicated.
MINGE, Judge (dissenting).
I respectfully dissent. The record indicates that Tate operated a saw in a factory and that on two occasions the smell of alcohol was detected on his breath. The notice he was asked to sign did not state it was an admission. In part, Tate’s confusion was a result of not carefully reading that statement or asking any questions.
Based on this record, I would accept the determination of the SURJ that Tate had engaged in misconduct, and affirm.