This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-97-2061

Connie S. McCollough,

Relator,

vs.

Bureau of Engraving,

Respondent,

Commissioner of Economic Security,

Respondent.

Filed July 7, 1998

Reversed

Klaphake, Judge

Commissioner of Economic Security

File No. 5403 UC 97

Patrice Arseneault, General Counsel, GCIU Local 1B, 2223 Central Avenue NE, Minneapolis, MN 55418 (for relator)

George R. Wood, M. Jennifer Hopeman, Gray, Plant, Mooty, Mooty & Bennett, P.A., 3400 City Center, 33 South Sixth Street, Minneapolis, MN 55402-3796 (for respondent employer)

Kent E. Todd, 390 North Robert Street, St. Paul, MN 55101 (for respondent commissioner)

Considered and decided by Klaphake, Presiding Judge, Lansing, Judge, and Forsberg, Judge.*

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, 10.

U N P U B L I S H E D O P I N I O N

KLAPHAKE, Judge

Relator Connie McCollough, who was a union member and had been employed by respondent Bureau of Engraving since 1978, was discharged for accumulating three unexcused absences on May 31, June 1, and June 2, 1997. She seeks review of a decision by a representative of respondent Commissioner of Economic Security, who determined she was disqualified from receiving reemployment insurance benefits because she was discharged for misconduct. Because relator was not yet at the point where termination was authorized under the union contract, we reverse.

D E C I S I O N

An individual who is discharged for misconduct that interferes with and adversely affects his or her employment is disqualified from receiving reemployment insurance benefits. Minn. Stat. 268.09, subd. 1(b) (1996). In this case, the commissioner's representative determined that relator had been discharged for misconduct because she knowingly violated attendance rules set forth in the union contract by not calling the Bureau to report her absences for three consecutive work shifts.

This court reviews the commissioner's factual findings in the light most favorable to the decision below and will not disturb them if there is evidence reasonably tending to sustain those findings. White v. Metropolitan Medical Ctr., 332 N.W.2d 25, 26-27 (Minn. 1983) (employee dismissed pursuant to terms of collective bargaining agreement for nonpayment of union dues, not entitled to unemployment compensation benefits). The commissioner's legal determinations, however, do not similarly bind us. McGowan v. Executive Express Transp. Enters., Inc., 420 N.W.2d 592, 594-96 (Minn. 1988) (employee committed disqualifying misconduct by refusing to run personal errand for supervisor, contrary to terms of employment contract). Interpretation of an unambiguous contract is such a legal issue. Banbury v. Omnitron Int'l, Inc., 533 N.W.2d 876, 880 (Minn. App. 1995).

On June 7, relator was given a letter of termination which stated that she was terminated for incurring three unauthorized absences on May 31, June 1, and June 2. The union contract defines an "unauthorized absence" as one "when the employee fails to notify the company of their intended absence." Although the contract provides for termination after three unauthorized absences, it also requires the Bureau to provide a written warning after the first occurrence, and a written warning and a five-day work suspension after the second occurrence.

Relator was not yet at the point where termination was authorized under the union contract. While she failed to notify the Bureau of her absences on May 31 and June 1, this was not the case on June 2. In a June 2 telephone conversation with the Bureau's Human Resources Representative, Laura Jacobson, relator informed Jacobson that her physician had not yet released her to return to work and that she would not be in for the remainder of the day. Thus, relator complied with the plain terms of the union contract. In addition, the Bureau failed to follow the proper procedures by giving her a written warning after her first unauthorized absence and a written warning and five-day suspension after her second unauthorized absence. See Hoemberg v. Watco Publishers, Inc., 343 N.W.2d 676, 678-79 (Minn. App. 1984) (no evidence of misconduct when employees did not know that employer would not follow handbook provisions on discipline), review denied, (Minn. May 15, 1984); cf. Flahave v. Lang Meat Packing, 343 N.W.2d 683, 685-86 (Minn. App. 1984) (employee committed disqualifying misconduct by failing to report for work without giving employer notice, as required by employer's policy).

The decision of the commissioner's representative that relator committed disqualifying misconduct is reversed.

Reversed.