This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-1695

 

Anthony R. Mancini,

Relator,

 

vs.

 

Hibbing Taconite Division of Cliffs Mining Company,

Respondent,

 

Commissioner of Employment and Economic Development,

Respondent.

 

Filed August 3, 2004

Affirmed

Anderson, Judge

 

Department of Employment and Economic Development

File No. 3108 03

 

David C. Weinstein, Lapp, Libra, Thomson, Stoebner & Pusch, Chartered, One Financial Plaza, Suite 2500, 120 South Sixth Street, Minneapolis, MN  55402 (for relator)

 

Robin C. Merritt, Hanft Fride, P.A., 1000 U.S. Bank Place, 130 West Superior Street, Duluth, MN  55802 (for respondent Hibbing Taconite)

 

Lee B. Nelson, Linda A. Holmes, Department of Employment and Economic Development, 390 North Robert Street, St. Paul, MN  55101 (for respondent commissioner)

 

            Considered and decided by Harten, Presiding Judge; Anderson, Judge; and Crippen, Judge.*

U N P U B L I S H E D   O P I N I O N

ANDERSON, Judge

            Relator Anthony Mancini challenges the decision by the commissioner’s representative that he had been discharged for misconduct, arguing that there was no evidence to show that he violated any work rules on the shift during which he was discharged, and that his actions in allowing the hourly workers he supervised to take extended breaks should not be considered misconduct because all of the supervisors had allowed extended breaks.  We affirm.

FACTS

            Relator Anthony Mancini was employed by respondent Hibbing Taconite and supervised hourly workers on the night shift until he was fired on December 19, 2002.  Under the collective-bargaining agreement, the hourly workers had an eight-hour shift that included a ten-minute paid coffee break and a twenty-minute paid lunch break.  Supervisors had authority to allow the hourly workers to combine their breaks for a total of a thirty-minute break.  Until the time that Mancini was fired, however, hourly workers on the night shift, with the knowledge of their supervisors, commonly took extended breaks lasting up to two hours.

            Management had addressed the issue of productivity with supervisors on many occasions.  In December 2001, Mancini was placed on a performance-improvement plan.  Among other things, he was informed:  “As a supervisor of people, the majority of your time should be spent on the floor keeping people busy.  This includes monitoring breaks and start/stop times.”  After making improvements in his performance, Mancini was taken off the improvement plan a month later.  In June 2002, he received a merit raise.

            Later in 2002, management suspected that hourly workers on the night shift were taking extended breaks, based on records indicating that the machinery was not being operated for stretches of several hours at a time.  On December 12, 2002, several managers met with Mancini.  Mancini admitted that members of his crew had been sleeping on the shift.  He asked for a letter from management to show to the hourly workers stating that sleeping on the shift and extended breaks were not acceptable.  Management declined, asserting that it was Mancini’s responsibility as supervisor to keep his crew working and productive.  The managers told Mancini that sleeping would not be tolerated and that if management found workers sleeping on the job, the supervisors, and not the hourly workers, would be disciplined.  Mancini was warned to expect a manager to visit during his shift to ensure this was not happening.

            At the beginning of the shift on December 13, Mancini warned his crew that management was adamant about enforcing break times.  Later on that shift, a manager made a surprise visit to the night shift to check on the crew’s productivity.  After waiting in the mill area for 20 minutes and seeing no one, he proceeded to the locker room, where he found four people sleeping on homemade beds.  He then went to the main lunchroom, where he found the remainder of the crew.

            Although the company initially took steps to discipline the hourly workers found sleeping, further investigation revealed that supervisors had condoned this activity and that it was a longstanding practice.  The company ended the disciplinary actions against the hourly workers and proceeded against the supervisors.  Two supervisors acknowledged that they had permitted extended breaks and that it was wrong; their employment was not terminated because they were taking actions with their own crews to stop the practice.  A third supervisor, who in addition to allowing extended breaks also falsified records, was fired, as was Mancini.

            Mancini established an unemployment-benefits account and the department determined that he had been discharged for employment misconduct and was disqualified from receiving benefits.  He appealed and the unemployment law judge reversed.  On appeal from the unemployment law judge’s decision, the commissioner’s representative determined that Mancini had been discharged because of employment misconduct and was disqualified from receiving benefits.  This certiorari appeal followed.  We affirm.

D E C I S I O N

            The issue of whether an employee engaged in misconduct “is a mixed question of fact and law.”  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  The findings by the commissioner’s representative are viewed “in the light most favorable to the commissioner’s decision and will not be” disturbed “as long as there is evidence that reasonably tends to sustain those findings.”  Id.  “Whether a particular act constitutes disqualifying misconduct is a question of law, which [the appellate] court reviews de novo.”  Id.

Mancini first argues that Hibbing Taconite’s stated reason for discharging him was that on the December 13, 2002, nightshift, he permitted his workers to take an extended break.  But on the shift in question, he asserts that the evidence showed only that the crew took a 30-minute break.  Further, he cites testimony by management that the real issue was the fact that the crew was sleeping.  He contends that sleeping while on break was permitted, and that the evidence only showed the crew was sleeping on their break.  Consequently, he argues that there was no showing of violation of the break rules during this shift.

First, the commissioner’s representative found that on the shift in question, “a surprise inspection by Mr. Mancini’s boss demonstrated that a number of crew members on Mr. Mancini’s shift were sleeping in cots and homemade beds.”  This finding is supported by the record.  Mancini’s argument that there was no misconduct because the supervisor had discovered this after being in the area only some 30 minutes—the length of the authorized break—has no merit.  Second, the decision by the commissioner’s representative was also based on Mancini’s longstanding practice of knowingly allowing extended breaks, in which the employees engaged in nonwork activities including sleeping.  Further, Mancini had been put on probation the previous year for productivity problems and had been specifically directed to monitor breaks and stop and start times, and had been warned the previous shift about the problem of extended breaks.  These findings are supported by the record.

II.

            Mancini next argues that the undisputed evidence shows that he did not intentionally violate the work rules.  An employee who is discharged for employment misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4(1) (2002).[1]  Employment misconduct is defined in relevant part as “any intentional conduct, on the job or off the job, that disregards the standards of behavior that an employer has the right to expect of the employee or disregards the employee’s duties and obligations to the employer.”  Minn. Stat. § 268.095, subd. 6(a)(1). (2002).

            Under the first prong, the conduct must be intentional.  Houston v. Int’l Data Transfer Corp., 645 N.W.2d 144, 149 (Minn. 2002).  This requires that the action be deliberate and not accidental.  Id.  The second prong of misconduct is whether the conduct “disregards the standards of behavior that an employer has the right to expect” or whether it “disregards the employee’s duties and obligations to the employer.”  Minn. Stat. § 268.095, subd. 6(a)(1).  “[T]he word ‘disregard’ includes intent that is separate and distinct from the intent to engage in the conduct in question.”  Houston, 645 N.W.2d at 150.  Consequently, there must be a showing “that the employee not only engaged in intentional conduct, but also intended to, or engaged in conduct that evinced an intent to, ignore or pay no attention to his or her duties and obligations or the standards of behavior the employer has a right to expect.”  Id.

            Mancini contends that his conduct was not intentional as to the December 13 shift because, assuming for argument that the crew did take an extended break that shift, he did not permit it.  To the contrary, he testified that at the start of that shift he instructed his crew not to take extended breaks and he paged them after the break had lasted the permitted 30 minutes.  He asserts that any violation of the work rules by the crew on December 13 in violation of his instructions only rose to the level of poor performance, which does not constitute misconduct.  Minn. Stat. § 268.095, subd. 6(b) (2002).  As discussed above, the decision was based on the broader grounds of the longstanding practice of permitting extended breaks.  Testimony indicated extended breaks were taken after the improvement plan.

            Further, as Mancini was told, it was his responsibility as supervisor to enforce the rules.  Management explicitly told him during the previous shift that the company would hold the supervisors responsible if their employees did not follow the rules.

            Mancini next argues that because extended breaks had been “accepted” over the years by management, the fact that he had, prior to December 12, permitted the employees under his supervision to take extended breaks cannot constitute misconduct.  He asserts that Hibbing Taconite did not have the right to expect him to be the only supervisor on the night shift to enforce contractual break rules that had not been enforced by any supervisor for a number of years.

            Misconduct may not be based on a good-faith misunderstanding of the employer’s rules or policies.  Tuckerman Optical Corp. v. Thoeny, 407 N.W.2d 491, 493 (Minn. App. 1987).  The evidence, however, supports the findings that Mancini knew the standards were not permissible or authorized yet permitted them.  He testified that as a supervisor, he was told to control break times during the night shift, stating that he had received this direction for 20 years.  In addition, he had been placed on an improvement plan the previous year, in which he was explicitly told to enforce the break rules.  Further, he had been given a specific warning the night before management’s visit.  As to Mancini’s claim that he was wrongfully targeted, the employer indicated that all of the supervisors were wrong in failing to enforce the break limits, but terminated relator’s employment because of his reluctance to enforce the work rules as they directed.

            The decision of the commissioner’s representative finding Mancini was discharged for employment misconduct and was disqualified from receiving unemployment benefits is affirmed.

            Affirmed.