Opinion
Case No. 20020419-CA.
Filed June 5, 2003. (Not For Official Publication)
Original Proceeding in this Court.
Robin K. Nalder, Ogden, for Petitioner.
Suzan Pixton, Salt Lake City, for Respondents.
Before Judges Billings, Davis, and Orme.
MEMORANDUM DECISION
RKB Industrial, Inc. (RKB) appeals from a Workforce Appeals Board (the Board) decision affirming the Administrative Law Judge's (the ALJ) decision to grant unemployment benefits for Brodie Peterson and to require RKB to pay benefit charges under Utah Code Ann. § 35A-4-307 (2001).
As a preliminary matter, RKB challenges the findings of both the ALJ and the Board. "To successfully challenge such findings on judicial review of administrative action, a party must demonstrate that the findings are `not supported by substantial evidence when viewed in light of the whole record before the court.'" Heinecke v. Department of Commerce, 810 P.2d 459, 464 (Utah Ct.App. 1991) (citations omitted). "[T]o do this, a party . . . `must marshal the evidence in support of the findings. . . .'" Id. (citations omitted). "If the appellant fails to marshal the evidence, the appellate court assumes the record supports the findings . . . and proceeds to a review of the accuracy of the . . . conclusions of law and application of that law" from the proceedings below. Crockett v. Crockett, 836 P.2d 818, 820 (Utah Ct.App. 1992) (quotations and citations omitted). Here, RKB "cites only evidence that supports the outcome [it] desires," id., and as such "does not begin to meet the marshalling burden." Crookston v. Fire Ins. Exch. 817 P.2d 789, 800 (Utah 1991). Accordingly, we assume the record supports the findings of the ALJ and the Board, see Crockett, 836 P.2d at 820, and proceed to an examination of the ALJ's and Board's application of the law to this case.
First, RKB asserts that Peterson is ineligible for unemployment benefits because RKB discharged Peterson for just cause. See Utah Code Ann. § 35A-4-405(2)(a) (2001). RKB points to four different grounds in support of its claim that Peterson was terminated for just cause. For each ground, RKB must establish three elements: "`(1) culpability, (2) knowledge of expected conduct, and (3) control over the offending conduct.'" Bhatia v. Department of Employment Sec., 834 P.2d 574, 577 (Utah Ct.App. 1992) (citation omitted); see also Utah Admin. Code R994-405-202. RKB "must satisfy all three conditions to demonstrate [Peterson] is not entitled to unemployment benefits." Bhatia, 834 P.2d at 577.
RKB argues Peterson's habitual tardiness constituted just cause for termination. The ALJ found that "[t]he element of knowledge was not established" because: (1) RKB "did not follow its own written policy on discipline" regarding Peterson's tardiness; (2) after a verbal warning regarding tardiness, Peterson's attendance "greatly improved" so as to be satisfactory to RKB; and (3) RKB gave Peterson "[n]o further warnings for attendance." "Without additional warnings," the Board concluded, "[Peterson] had no reason to believe his job was in jeopardy as a result of tardiness." The ALJ also found that RKB failed to establish the control element with regard to Peterson's tardiness because "[w]ithout knowledge of expected conduct, [Peterson was] incapable of conforming [his] behavior to that desired by [RKB]." Finally, RKB failed to establish the culpability element because RKB "was unable to document a single example of harm" caused by Peterson's tardiness.
RKB also contends that Peterson's utilization of unscheduled vacation time constituted just cause for termination. However, citing the findings of the ALJ, the Board concluded that Peterson "called to get [time] off and was given permission." Hence, the Board found that RKB failed to establish "any of the three elements of just cause discharge" on this issue.
RKB asserts that Peterson's telling a co-worker that he received a pay cut in the aftermath of September 11, 2001, was "rumor mongering," which threatened morale at RKB and constituted just cause for termination. The Board concluded, however, that RKB failed to establish culpability on this issue because Peterson's behavior was "not sufficiently harmful to the employer to justify a denial of unemployment insurance benefits."
Finally, RKB supports its claim of just cause termination on the ground that Peterson failed to report to work in January of 2002 following a purported disciplinary suspension. Neither the ALJ nor the Board directly addressed this contention below. However, given the Board's conclusions regarding the circumstances of the purported disciplinary suspension, we conclude that RKB has not established any of the three elements of just cause termination with regard to this issue.
In summary, we hold that RKB is not relieved of benefit charges on a theory of just cause termination.
RKB's second argument on appeal is that Peterson is ineligible for unemployment benefits because Peterson quit his job without good cause.See Utah Code Ann. § 35A-4-405(1)(a) (2001). However, the Board determined that Peterson's "letter of resignation was not written until several weeks after the separation occurred [and was] merely an exercise [Peterson] went through at the instruction of others in order to get unemployment benefits and back pay." Furthermore, the ALJ concluded "that this [case] was not a voluntary quit, but rather, [RKB] was the moving party and discharged [Peterson]." Thus, we hold RKB is not relieved of benefit charges on a theory that Peterson quit his job without good cause.
Affirmed.
WE CONCUR: James Z. Davis, Judge, and Gregory K. Orme, Judge.