Ferguson v. Dept of Emp. Services

• Citation: 311 Minn. 34,247 N.W.2d 895
• Decision Date: 05 November 1976
• Docket Number: No. 45745,45745
• Parties: Albert F. FERGUSON, Relator, v. DEPARTMENT OF EMPLOYMENT SERVICES, Respondent.
• Court: Minnesota Supreme Court

Page 895

247 N.W.2d 895

311 Minn. 34

Albert F. FERGUSON, Relator, v. DEPARTMENT OF EMPLOYMENT SERVICES, Respondent.

No. 45745.

Supreme Court of Minnesota.

Nov. 5, 1976.

Richard J. Fuller, Legal Aid Society, Inc., Minneapolis, for relator.

Warren Spannaus, Atty. Gen., Peter W. Sipkins, Sol. Gen., Peter C. Andrews, Asst. Atty. Gen., Louis K. Robards, Sp. Asst. Atty. Gen., St. Paul, for respondent.

Considered and decided by the court without oral argument.

OTIS, Justice.

This matter is before the court to review a decision of the commissioner of employment services finding that relator, Albert F. Ferguson, voluntarily discontinued his employment with Northwest Publications, Inc., and that his unemployment benefits were accordingly subject to the disqualifications set forth in Minn.St.1974, § 268.09, subd. 1(1)(b). ¹ Two issues are raised: First, whether the evidence supports a finding that relator voluntarily discontinued his employment, as to which we reverse; and second, whether relator had reasonable grounds for the apprehension he expressed concerning the safety of his working conditions, as to which we remand for additional findings.

1. The relator was employed as a printer by Northwest Publications, Inc. on October 13, 1973, when the events out of which this claim arose occurred. When he reported for work that afternoon, he was assigned by the foreman, Lawrence Zschokke, to punch tape in the 'TPS' room. This was not his regular area of work and he refused to accept the assignment because one of the doors to the room had been nailed shut and the handles taken off on the previous day, and relator regarded the area as a firetrap.

The foreman's version of what occurred thereafter was as follows:

'At that time Mr. Ferguson said, I refuse to work in here. Put me some place else. I will not work in here, but I'll work any place else. And I says, you will not work any place else. I said, he is told to punch the tape for the third time, and I said, he was told to punch tape, and I says, either he goes and punches tape, or he leaves. He's through. And I told the chairman. He says, I will not go back to work. And I says, to the chairman, Mr. Verbout, I said, he's through. He'd better leave. At which time he did.'

The foreman conceded that relator had the ability to work in a number of other places in the shop but testified he was needed that night in the TPS room. James Robertson, the production manager of the company, testified that relator's refusal to work in the TPS room was Not misconduct.

The findings of the claims deputy, A. C. Wartinbee, on November 8, 1973, are as follows:

'The claimant was discharged from this employment on 10--13--73 for either misconduct or gross misconduct which was connected with his work or which interferes with and adversely affects his employment and is disqualified as indicated below.

'Misconduct

'1. The claimant is disqualified for 5 weeks of unemployment in addition to and following the waiting period, and the maximum benefit amount otherwise payable to him is reduced by 5 times his weekly benefit amount.

'Findings of the Claims Deputy:

'The claimant was discharged from this employment for failing to do his assigned work because he felt the area was unsafe.

The claimant's allegation that the area was unsafe has not been substantiated.'

A decision of an appeal tribunal of the Department of Manpower Services (which was subsequently set aside for lack of a record) found that relator was involuntarily separated for reasons other than misconduct. The second appeal tribunal found that he had voluntarily discontinued his employment. The commissioner of employment services approved and adopted the findings of the second tribunal.

The respondent Department of Manpower Services argues here that where an employee is discharged for refusing to obey an employer's orders it constitutes a voluntary termination within the meaning of Minn.St.1974, § 268.09, subd. 1. ² We do not agree. There is no evidence whatever to support such a finding by either the second appeal tribunal in its decision of October 3 1974, or by the commissioner in adopting that tribunal's findings on February 27, 1975. Where, as here, the employee has reported for work and has stated his willingness to be assigned to duties for which he is qualified, and is thereupon discharged for refusing to remain in an area which he believes to be unsafe, we hold that he has not voluntarily terminated his employment. ³

2. The only issue which remains is whether relator was discharged for misconduct within the meaning of § 268.09, subd. 1. The resolution of that issue on remand will depend on a determination of whether or not it was reasonable for relator to believe he had valid grounds for concern over his personal safety, not whether in the opinion of others his work area was safe for occupancy.

Relator testified that the shop steward and other fellow workers objected to the door being sealed and considered the area dangerous. Norman Hamink, secretary-treasurer of the union, corroborated relator in testifying that two or three people had complained about the door being nailed shut, that open gasoline cans were stored within 20 feet of the TPS room, and that smoking was allowed in the area.

There was testimony by Bradley Verbout, a printer and union acting chairman, that 15 employees had complained to him about the fire hazard.

The decision of the second appeal tribunal reversed the claims deputy on the issue of whether respondent was discharged, but went on to hold as follows:

'(2) On October 13, 1973, the claimant was assigned to work in a room which the claimant considered to be unsafe. He refused to work in the assigned room and thereby voluntarily discontinued his employment.

'* * * Having considered all of the evidence presented at the hearing, the majority of the tribunal members conclude that the claimant has failed to prove that his assigned work area was so unsafe as to provide good cause attributable to the employer for voluntarily discontinuing his employment.'

In a dissenting opinion, one member of the appeal tribunal stated, among other things:

'* * * In this particular situation the claimant had the courage to express a view which was supported by many of his fellow employees * * *.

'* * * (I)n my opinion, the decision of whether or not a given situation is a fire hazard becomes moot when the overwhelming majority of the employees of the employer concur in their fears about the situation. * * * The claimant established beyond a reasonable doubt that there were unalleviated fears in the minds of the employer's employees as to the safety of their working conditions.'

On February 27, 1975, the commissioner adopted the findings and decision of the appeal tribunal.

One of the respondent's exhibits offered and received by the second appeal tribunal was the prior appeal tribunal's decision which had been set aside for lack of a record. That decision, dated December 7, 1973, reflects the opinion of those who previously heard the testimony:

'* * * (C)laimant was discharged from his employment, it being alleged that he refused to work at his assigned work station because he deemed it hazardous as a potential fire trap.

'(3) A previously used exit door was nailed shut by the employer and the handles removed, and a machine placed in front of the said door.

'The sworn testimony adduced at the hearing from the claimant was in some conflict with the employer's exhibits concerning inspection of the work area by the St. Paul Fire Department and The Safety and Health Division of the Minnesota Department of Labor and Industry. It was stated by the claimant, unequivocally, that flammable gasoline was present in the work area, and very near the exists from the work area.

'Eight sworn affidavits were presented by the claimant from fellow employees which stated that the work area involved was, in fact, a potential safety hazard. Some substantial changes of a partial blocking of the remaining two exit doors was made subsequent to the complaint by the claimant.

'There was no conflict over the claimant's refusal to work in the area which he considered to be so unsafe as to amount to a clear and present danger to his and other employees' welfare.

'The method used by the employer in resolving the dispute was the most drastic available, and the tribunal concludes that the employer had available to him far less drastic measures which he failed to use. Accordingly, the further conclusion of the tribunal is that the claimant's conduct did not evince a willful or wanton disregard of his employer's interests or demonstrate a lack of concern by the employee for his job.

'It is axiomatic that the party who advances the contention that a separation from employment was the result of misconduct must bear the burden of proving such misconduct. Applying the standards set forth, the tribunal concludes that the employer has not sustained that burden and such proof of misconduct is lacking here.

'DECISION: The claimant was involuntarily separated on October 13, 1973 from his employment for reasons other than misconduct; he is not disqualified for benefits; his maximum benefit amount is not reduced because of said separation from employment; and benefits paid, if any, to the claimant shall be charged to the employer's experience rating account.'

In addition to the fact that one of three doors in the TPS room had been nailed shut and the doorknobs removed the day before relator was discharged, there was testimony by relator, corroborated by other employees, that the area was unsafe for additional reasons. The room to which relator was assigned was L-shaped and had an area of 848 square feet. One wall consisted of plywood. In addition to the door which had been nailed shut, there were two doors 22 feet apart at one end of the room. One of those doors was partially obstructed by a wooden baffle put there to keep out the draft. Gasoline...