This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).


Craig R. Howe,


Precision Fitting & Valve Co., Inc.

Commissioner of Economic Security,

Filed February 10, 1998
Foley, Judge*

Department of Economic Security

Agency No. 3298 UC 97

Craig R. Howe, 364 Baldwin Avenue, Elk River, MN 55330-1915 (Relator Pro Se)

Precision Fitting & Valve Co., Inc., 5121-212th Street West, Farmington, MN 55024 (Respondent/Employer)

Kent E. Todd, Minnesota Department of Economic Security, 390 North Robert Street, St. Paul, MN 55101 (For Respondent Commissioner)

Considered and decided by Randall, Presiding Judge, Toussaint, Judge, and Foley, Judge.*

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


FOLEY, Judge

Relator contends the commissioner's representative erroneously determined that he had voluntarily quit without good cause attributable to the employer and was also disqualified from receiving benefits due to misconduct. We reverse.


Relator Craig R. Howe worked for respondent Precision Fitting & Valve (Precision) for ten years. He lived in Elk River and worked in Farmington, 70 miles away. Relator did not have a car or a driver's license, but arranged to ride to work with someone else working in the same town. He had problems in the past with absenteeism due to the fact that if the carpool driver did not report to work, relator also could not report to work because he lacked a ride. A year before his termination, relator received a verbal warning from the general manager regarding his absenteeism.

Relator's carpool driver quit his job in Farmington on February 26, 1997. On February 27, relator called Precision to inform them that he temporarily did not have a ride to work. Precision informed relator that he was terminated.

Relator applied for reemployment insurance benefits. The initial claims representative who reviewed relator's application denied the request and found relator disqualified from receiving benefits because he was unable to report to work. A reemployment insurance judge who reviewed the file found that relator was discharged for misconduct and, consequently, was disqualified from receiving reemployment insurance benefits.

The commissioner's representative affirmed the reemployment insurance judge by finding that relator committed misconduct and was disqualified from receiving benefits because he was unable to report to work as scheduled due to his transportation problems. The commissioner's representative also found that the evidence supported a finding that relator was disqualified from benefits because he voluntarily quit without good cause attributable to the employer when, for personal reasons, he was unable to report to work.

This appeal followed.[1]


1. Misconduct

Our first question, whether, on the undisputed facts, relator was properly disqualified from receiving reemployment insurance benefits as a result of misconduct, is a question of law for our independent review. Ress v. Abbott-Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989) (court may, however, review questions of law de novo).

The court construes economic security laws liberally because the laws are remedial in nature and are intended to help workers who are involuntarily unemployed through no fault of their own. Hendrickson v. Northfield Cleaners, 295 N.W.2d 384, 385 (Minn. 1980) (citing Minn. Stat. § 268.03). Disqualification provisions are narrowly construed. Hendrickson, 295 N.W.2d at 386. Because of the remedial nature of the law, the employer has the burden of proving that an employee has committed misconduct so as to disqualify him or her from benefits. Peterson v. Fred Vogt & Co., 495 N.W.2d 875, 877 (Minn. App. 1993). The employer must establish misconduct by the greater weight of evidence. Lumpkin v. North Cent. Airlines, Inc., 296 Minn. 456, 459-60, 209 N.W.2d 397, 400 (1973).

Minn. Stat. § 268.09, subd. 1(b) (1996), provides that an employee separated from employment will be disqualified from receiving reemployment insurance benefits if the employee was discharged for misconduct. Although the statutes do not define the term "misconduct," the Minnesota Supreme Court adopted the following definition:

The term "misconduct" * * * is limited to conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not deemed to be "misconduct."

Tilseth v. Midwest Lumber Co., 295 Minn. 372, 374-75, 204 N.W.2d 644, 646 (1973).

Misconduct may include conduct evincing a lack of concern for the job. Feia v. St. Cloud State College, 309 Minn. 564, 565, 244 N.W.2d 635, 636 (1976). Generally, an "employer has a right to expect an employee to work when scheduled." Little v. Larson Bus Serv., 352 N.W.2d 813, 815 (Minn. App. 1984). Consequently, even a single incident of absenteeism may constitute disqualifying misconduct if it shows sufficient disregard for the employer's expectations. Blau v. Masters Restaurant Assocs., 345 N.W.2d 791, 794 (Minn. App. 1984).

We note further that transportation to and from work is generally the concern of the employee. Hill v. Contract Beverages, Inc., 307 Minn. 356, 358, 240 N.W.2d 314, 316 (1976). When an employee is unable to report for work, he cannot expect the employer to hold open the job indefinitely. Smith v. American Indian Chem. Dependency Diversion Project, 343 N.W.2d 43, 45 (Minn. App. 1984); see also Winkler v. Park Refuse Serv., Inc., 361 N.W.2d 120, 123 (Minn. App. 1985) (citing Smith).

In our analysis of whether relator's absence from work constitutes misconduct, "[t]he critical factor is whether the employee's behavior caused his failure to report to work." Winkler, 361 N.W.2d at 124. Because the critical inquiry is whether the employee's own behavior prevented him from arriving at work, the intentional acts of a third party, which prevent an employee from reaching work, do not result in employee misconduct. Deering v. Unitog Rental Servs., 381 N.W.2d 486, 488 (Minn. App. 1986) (holding no misconduct where employee's husband immobilized her truck, leaving her without means of transportation). The question of law for this court is: Did relator's "behavior cause[ ] his failure to obtain necessary transportation"? Cherry v. American Nat'l Ins. Co., 426 N.W.2d 475, 479 (Minn. App. 1988).

The commissioner's representative first reasoned that relator's single unexcused absence could constitute misconduct. While this statement could be true, the "single incident" rule must be considered in context. In Blau, the "single incident" actually comprised several willful actions on the part of the employee that showed an utter disregard for the employer's interests. 345 N.W.2d at 793-94 (finding misconduct where employee admittedly had left work early 30 times without permission, refused to work his scheduled shift, lied to manager about having permission to leave, and refused to discuss his conduct). In another case, this court determined that a laborer committed misconduct based on a single incident when he failed to report for extra duty, failed to call to explain his absence, and, instead, went drinking for the day. Del Dee Foods, Inc. v. Miller, 390 N.W.2d 415, 416, 418 (Minn. App. 1986).

In contrast, relator's absence here was not a personal choice; his transportation problem was the result of his driver's decision to quit working in Farmington. Cf. Deering, 381 N.W.2d at 488 (reversing misconduct determination because third party beyond employee's control prevented employee from having transportation to work). In addition, relator called Precision to report his transportation problem. See id. (reversing determination of misconduct where employee called employer early to notify of her transportation problems and took measures to report to work).

Under Deering, relator did not commit misconduct. Id. The record does not establish that relator's "behavior caused his failure to obtain necessary transportation." Cherry, 426 N.W.2d at 477. Relator made a good-faith effort to inform Precision of his difficulties. Further, the record contains no evidence of his disregard for Precision's expectations. The commissioner's representative applied too strict of a standard to these facts. This single incident should not have deprived a ten-year employee of reemployment insurance benefits.

The commissioner's representative also suggests that absenteeism had been a continuous problem for relator, so as to constitute misconduct. Relator admitted to having received a verbal warning for absenteeism one year prior to termination. But the record contains no quantitative figures proving how many times relator was absent. Precision did not detail relator's conduct that led to the warning, nor did Precision present its employee policy to explain what type of conduct necessitates a warning. See Lumpkin, 296 Minn. at 459-60, 209 N.W.2d at 400 (employer bears burden of establishing employee misconduct by "greater weight of the evidence"). Without that evidence, the record does not support a legal determination that relator committed misconduct when he was unable to arrange transportation for one day of work.

Accordingly, in light of the remedial purpose of reemployment insurance, our narrow construction of disqualification provisions, and the above-cited case law, we conclude that the commissioner's representative erred when she concluded that relator was disqualified from receiving benefits because of misconduct.

2. Voluntary Termination Without Good Cause

Relator also contends the record does not support the finding that he voluntarily terminated his employment without good cause attributable to Precision. We agree. Minn. Stat. § 268.09, subd. 1(a), provides that an employee will be disqualified from receiving reemployment insurance benefits if he or she "voluntarily and without good cause attributable to the employer" terminated employment. To determine whether an employee has voluntarily terminated employment, the court considers "whether the employee directly or indirectly exercised a free-will choice to leave the employment." Shanahan v. District Mem. Hosp., 495 N.W.2d 894, 896 (Minn. App. 1993) (citing Anson v. Fisher Amusement Corp., 254 Minn. 93, 98, 93 N.W.2d 815, 819 (1958)). The employer has the burden of showing that the employee voluntarily quit his job. Marz v. Department of Employment Servs., 256 N.W.2d 287, 289 (Minn. 1977).

Whether an employee voluntarily terminated his or her employment is question of fact for the commissioner to determine. Shanahan, 495 N.W.2d at 896. When reviewing reemployment insurance decisions, this court inquires whether the evidence reasonably supports the commissioner's decision. Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995). We must view the findings of fact in a light most favorable to the commissioner's decision. White v. Metropolitan Med. Ctr., 332 N.W.2d 25, 26 (Minn. 1983). The commissioner's representative found that, despite the fact that relator had continuing work available to him, he was not able to continue reporting to work due to his personal problems with transportation.

It is true that personal needs generally do not constitute good cause attributable to the employer so as to warrant a voluntary termination. See Hill, 307 Minn. at 358-59, 240 N.W.2d at 316 (holding that employee who terminated employment due to his inability to obtain transportation after being transferred to another shift was not cause attributable to employer, but rather was voluntary termination disqualifying him from benefits); Shanahan, 495 N.W.2d at 896-97 (holding employee voluntarily terminated her job when she refused to interview for new position, despite fact that current job was ending and new job was guaranteed). But the distinguishing characteristic between relator and Hill and Shanahan is that relator did not terminate his employment. He made a good-faith effort to notify his employer and work out an arrangement. His commuting problems were temporarily beyond his control. The record does not show that relator exercised a free-will choice to leave Precision. Shanahan, 495 N.W.2d at 896.

To the extent the commissioner's representative considered relator to have constructively quit his employment, we note that the Minnesota courts and the legislature have criticized and rejected the constructive voluntary quit doctrine that deprived employees of benefits and deemed them to have voluntarily quit employment by virtue of the fact that they had vested authority in a union to act on their behalves and the union bumped them from their jobs. See LaSalle Cartage Co. v. Hampton, 362 N.W.2d 337, 341 (Minn. App. 1985) (noting constructive voluntary quit doctrine has never gained acceptance and was overruled by the 1983 legislature in 1983 Minn. Laws ch. 372, § 26); see also Jansen v. Peoples Elec. Co., 317 N.W.2d 879, 880-81 (Minn. 1982) (expressing criticism of doctrine, yet following rule out of deference to legislature).

The commissioner's representative abused her discretion when she found, on this record, that relator voluntarily quit his employment without good cause attributable to the employer.


[1] In this appeal, relator attached an exhibit to his statement of the case that is not part of the record because he had not presented it to the reemployment insurance judge. See Minn. R. Civ. App. P. 110.01 (only exhibits and papers filed below constitute record on appeal). Consequently, we have not considered that exhibit, or relator's arguments based on that exhibit, when deciding this appeal.