A05-1290

Ricky C. Tate,

Relator

vs.

STS Manufacturing, Inc.,

Respondent,

Department of Employment and Economic Development,

Respondent.

Filed May 30, 2006

Reversed

Randall, Judge

Dissenting, Minge, Judge

Department of Employment and Economic Development

File No. 4142 05

Rockford R. Chrastil, Chrastil & Steinberg, P.L.L.P., 1155 Grain Exchange, Building, 412 South Fourth Street, P.O. Box 15085, Minneapolis, MN 55415-0085 (for relator)

STS Manufacturing, Inc. 2500 West County Road B, Building N, Roseville, MN 55113 (respondent)

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

RANDALL, Judge

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.

FACTS

Relator Ricky Tate worked for respondent employer STS Manufacturing as a saw operator from January 30, 2005, until February 23, 2005. Tate worked a shift from 3 p.m. to 1:30 a.m., four days per week.

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. Minn. Stat. § 268.095, subd. 4 (2004). Employment misconduct includes “any intentional, negligent, or indifferent conduct, on the job or off the job, . . . display[ing] clearly a serious violation of the standards of behavior the employer has the right to reasonably expect” or “display[ing] clearly a substantial lack of concern for the employment.” Minn. Stat. § 268.095, subd. 6 (2004).

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, 804 (Minn. 2002). The determination whether the employee committed a particular act is a factual question. Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997). A determination that a particular act constitutes employment misconduct is a question of law. Id. This court defers to the factual determinations of the senior unemployment review judge if they are reasonably supported by evidence in the record, but exercises independent judgment with respect to legal questions. Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996).

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 (Minn. App. 1985). But “[w]hat is ‘reasonable’ will vary according to the circumstances of each case.” Id. Tate argues that his refusal to sign the written warning did not constitute employment misconduct because he disputed the allegations in the warning, and no one told him that he could sign the warning simply to acknowledge receipt of the warning. He contends that he should not be disqualified from unemployment benefits by being forced to choose between admitting allegations that he disputed and facing discharge for refusing to sign the admission. We agree. On this record, the evidence supports Tate’s interpretation that he was being asked to sign the warning as an admission of its contents, rather than simply an acknowledgement of its receipt. The language of the warning specified that Tate had been previously warned about the smell of alcohol on his breath and that the next time this happened, he would be terminated. The employer acknowledges that Tate was not told that his signature on the warning would act only as an acknowledgment of receipt of the warning. Therefore, Tate could reasonably infer that he was being asked to admit to the conduct specified in the warning, which he disputed. Under these circumstances, the employer’s demand that he sign the warning was unreasonable, and Tate’s refusal to sign did not constitute employee misconduct.

The 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 Minn. 464, 470, 122 N.W.2d 169, 173 (1963), we do not give deference to findings which are not reasonably supported by the record. See Grotjohn v. Cornbelt Foods, Inc., 370 N.W.2d 48, 50 (Minn. App. 1985) (recognizing this court’s limited scope of review, yet concluding that the record did not support findings of disqualification from benefits). At the unemployment hearing, Tate testified that he had “a beer” after work the night before the February 22 incident; the president testified that Tate acknowledged having “a few beers” after his shift. But the presence of the smell of alcohol on Tate’s breath and a glassy-eyed appearance do not necessarily indicate that he reported to work intoxicated. The record reflects that Tate worked without incident for several hours at his shift before the office manager noticed the smell of alcohol on his breath. Further, the company handbook specifies only a policy against using alcohol on the job and provides a procedure for chemical testing to determine whether that policy has been violated. Here, the employer never sought to use the specified testing procedure to assess whether Tate had, in fact, violated company policy by consuming alcohol on the job.

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.

Reversed.

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.