Opinion
No. A07-0510.
Filed May 13, 2008.
Appeal from the Department of Employment and Economic Development, File No. 16704 06.
Aultin P. Byars, (pro se relator).
Lee B. Nelson, Katrina I. Gulstad, Department of Employment and Economic Development, (for respondent Department of Employment and Economic Development).
Considered and decided by Ross, Presiding Judge; Lansing, Judge; and Johnson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2006).
UNPUBLISHED OPINION
In this certiorari appeal, Aultin P. Byars challenges an unemployment law judge's determination that he was discharged for employment misconduct. After multiple attendance failures and warnings, Byars was discharged when he failed to arrive at work due to his arrest for disorderly conduct. Byars appeals, arguing that the true reason for his discharge was retaliation for his involvement in organizing a union. He also argues that his hearing was procedurally defective and unfair because he was rushed and because he did not receive certain documents until the day of the hearing. Because the evidence supports the finding that Byars was discharged for misconduct and because Byars received a fair hearing, we affirm.
FACTS
From June 15, 2005, until November 6, 2006, Aultin Byars worked for Administaff Companies II, LP, as a logistics specialist. After repeated absences, tardiness, and three warnings, Administaff discharged Byars for violating its attendance policy. The Department of Employment and Economic Development denied Byars's request for unemployment benefits.
Following a hearing, the Department's unemployment law judge (ULJ) found that Administaff's attendance policy is an objective, point-based system. The policy assigns one point for an employee's absence from work and half a point for tardiness. The policy assigns six points when the employee fails to give notice of an absence. At three points, an employee receives an oral warning; at six, a written warning; and at nine, a final written warning or suspension. If an employee receives 12 points within a 12-month period, Administaff may discharge that employee. Byars knew of this system.
The ULJ also found that Byars was regularly late to or absent from work in January and February 2006. Administaff gave him an oral warning in January and a written warning in February. But he continued to arrive late, and by May 2006, he had collected more than 29 points. Administaff gave Byars a final written warning but, demonstrating leniency, reduced his points to nine.
Byars continued to be late or absent. The ULJ found that from June through October 2006, Byars was late nine times and absent twice. He had again accumulated more than 12 points. On Friday, November 3, 2006, Byars was arrested outside of a bar for disorderly conduct, and he therefore did not report to work. He had a friend call and inform Administaff that he would not be working that day. Administaff discharged Byars the following Monday for violating its attendance policy.
The ULJ determined that Administaff discharged Byars for employment misconduct, disqualifying him from receiving unemployment benefits. Byars appeals, arguing that the true reason for his firing was his involvement in organizing a union, that he was unfairly rushed at the hearing, and that Administaff unfairly waited until the day of the hearing to give him certain documents.
DECISION I
Byars primarily contends that the ULJ's determination that he was discharged for misconduct is erroneous. This court will affirm a ULJ's determination unless the decision derives from unlawful procedure, relies on an error of law, or is unsupported by substantial evidence. Minn. Stat. § 268.105, subd. 7(d)(3)-(5) (2006). When an employer discharges an employee for employment misconduct, the employee is disqualified from receiving unemployment benefits. Minn. Stat. § 268.095, subd. 4(1) (2006). Employment misconduct is intentional, negligent, or indifferent conduct that clearly displays either "a serious violation of the standards of behavior the employer has the right to reasonably expect" or "a substantial lack of concern for the employment." Id., subd. 6(a) (2006). Whether an employee engaged in employment misconduct presents a mixed question of law and fact. Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002). Except as noted and addressed below, Byars makes no challenge regarding the incidents of tardiness or absence on the days and times in the record, so the facts regarding his attendance failures are not in material dispute. Whether those facts establish employment misconduct is a question of law, reviewed de novo. Skarhus v. Davanni's Inc., 721 N.W.2d 340, 344 (Minn.App. 2006).
Excessive tardiness and absenteeism may constitute employee misconduct. See McLean v. Plastics, Inc., 378 N.W.2d 104, 107 (Minn.App. 1985) (finding misconduct when employee was tardy 13 times in one year and had received two warnings); see also Minn. Stat. § 268.095, subd. 6(a) (defining misconduct). Work absences within the control of the employee, such as arrest-related absences, generally are misconduct. Winkler v. Park Refuse Serv., Inc., 361 N.W.2d 120, 124 (Minn.App. 1985). If Byars's absences and tardiness establish employment misconduct, and if Byars was discharged because of those absences, we must affirm the ULJ's decision.
Byars's repeated absences and lateness were within his control and constitute employment misconduct. The final absence due to Byars's arrest for disorderly conduct supports the ULJ's decision, particularly when considered with his history of violations. Byars argues that some of his tardiness was caused by Administaff's punch clock, which the ULJ found to run four to five minutes fast. An Administaff employee testified that Administaff gave each employee a six-minute grace period. The ULJ therefore determined that the punch-clock defectiveness was not relevant in Byars's case because Byars's tardiness exceeded the grace period. Because the ULJ's finding that Byars was more than six minutes late on days for which he was given tardiness points is supported by testimony in the record, we uphold that finding. See Skarhus, 721 N.W.2d at 344 (noting ULJ's factual findings are accepted unless unsupported by substantial evidence).
Byars also argues that he was given points inappropriately for occasions that he took sick days or floating holidays. Byars made this argument to the ULJ. We review a ULJ's factual findings in the light most favorable to the decision. Id. The ULJ did not find that Byars was given points for times he took sick days or floating holidays, but he did find that Byars was repeatedly absent or tardy. Because the ULJ decided that Byars was discharged for employment misconduct, we interpret the ULJ's findings as rejecting Byars's argument that he was assigned attendance points improperly. The ULJ heard testimony that Byars's points were awarded according to Administaff's policy. It was not error for the ULJ to conclude that Administaff followed its attendance policy in assigning the points to Byars.
We are not persuaded by Byars's argument that the evidence requires a finding that the actual reason for his termination was his effort to organize a union. The ULJ did not explicitly find that Byars was not discharged for his union involvement. But because the ULJ did find that Byars was discharged for his tardiness and absenteeism, we necessarily infer that the ULJ rejected Byars's claim of retaliatory discharge. The ULJ heard testimony from an Administaff representative stating that Byars was discharged for his absenteeism and tardiness and that the two employees known to be involved with the union had not been discharged and had not been cited for any attendance-related problems. Byars offered no evidence showing that any similarly situated union organizer had been the subject of an adverse employment decision. These facts support the ULJ's implied finding that Byars was discharged because of his attendance problems, not because of his union involvement. The evidence supports the ULJ's finding that Byars was fired for his misconduct.
II
Byars argues that he is entitled to a new hearing because he was unfairly rushed by the ULJ's hearing schedule. We will reverse a ULJ's decision if it derives from unlawful procedure. Minn. Stat. § 268.105, subd. 7(d)(3)-(5). The Department of Employment and Economic Development has statutory discretion to develop rules that govern the department's evidentiary hearings. Minn. Stat. § 268.105, subd. 1(b) (2006) ("[Departmental] rules need not conform to common law or statutory rules of evidence and other technical rules of procedure."). The rules require the ULJ to "exercise control over the hearing procedure in a manner that protects the parties' rights to a fair hearing." Minn. R. 3310.2921 (2007).
At one point in the hearing, the ULJ stated that he had to end the hearing to begin his next, previously scheduled hearing. The ULJ offered to continue Byars's hearing. Byars declined this offer, however, indicated that he had only one remaining question to ask, and he asked his question. The ULJ then heard closing arguments before ending the hearing. Because Byars had an offer to continue the hearing but declined it, his argument that he was unfairly rushed fails.
III
Byars asks for a rehearing because he did not receive Administaff's exhibits until the day of the hearing and was not fully prepared for the hearing. Byars's argument that we should remand the case so that he has more time to review the documents is deficient. The employer's documents recorded Byars's attendance problems, and he did not challenge that evidence at the hearing. His primary theory of the case was and is that he was fired for union involvement. He does not argue that more time to review Administaff's records would have improved his defense. Additionally, Byars did not request more time to review Administaff's exhibits. To the contrary, as noted, when the ULJ offered to continue the hearing, Byars declined.
Byars also urges us to remand for a new hearing so that he can have a lawyer assist him. But he could have secured legal counsel before the first hearing, and he was given a full opportunity to testify and to cross-examine Administaff's witnesses.
Affirmed.