This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-558

 

 

Philip G. Yukich,

Relator,

 

vs.

 

Furin & Shea Welding & Fabricating,

Respondent,

 

Department of Employment and Economic Development,

Respondent.

 

 

Filed January 3, 2006

Affirmed

Toussaint, Chief Judge

 

Department of Employment and Economic Development

File 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 Development)

 

            Considered and decided by Randall, Presiding Judge; Toussaint, Chief Judge; and Dietzen, Judge.

 

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

            Relator 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 O N

            An appellate 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).

            An employee 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

                        the 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 employment.

 

Minn. Stat. § 268.095, subd. 1(2) (2004) (emphasis added).

            Relator Philip 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.

            Yukich 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 issue.

            Second, 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.

            Third, 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).

            Finally, 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.

            Yukich also 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 Superior 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.

            Finally, 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 benefits.

            Affirmed.