*1 Board gory grievances over which the management may establish a Agency Regardless a job sharing jurisdiction. as means whether program of part- harmed, career not increasing opportunities for the Board could Lopez not was absence of an employment. time In the grievance. therefore need not hear the We employees agency program, individual address this final claim error. job sharing approval may request management. through agency status CONCLUSION (1991). Admin.Code § R468-5-12 hearing finding officer’s The hearing officer held the Com- Lopez’s jurisdiction lacked to hear Lopez job not to allow to mission’s decision grievance is affirmed. policy a of this not violation share was gives full rule the Commission because the job sharing. to allow discretion JJ., RUSSON, concur. ORME and since hearing officer reasoned that job sharing be no mandate that
there was
allowed, sharing privilege that job was a Commission, it
might granted be but right Lopez not to which was entitled
was decision
by law. Since Commission’s job sharing within its to allow was
discretion, logi- Lopez’s complaint could not personnel
cally a claim that a constitute BHATIA, Petitioner, S. Jasbir agree. rule had “violated.” We been Discretionary personnel powers granted agencies do not constitute mandates. DEPARTMENT OF EMPLOYMENT statutory that an em- SECURITY; mandate Absent Pizza Hut of benefit, a certain the em- ployee Utah, receive Respondents. right. ployee may not demand it as a Since No. 910498-CA. requiring the Com- there was no mandate share, Lopez Lopez job mission to allow Appeals Utah. Court identify any personnel rule has failed to June re- that was violated the Commission’s job him to share. Jurisdic- fusal allow properly denied.5
tion therefore Lopez
Harm hearing
Finally, Lopez claims that he had
officer erred when she found by being “required” to
not been harmed leave of absence because unpaid
take an position. return to his former
was able to directly by the Lopez was harmed
Whether third action is the factor
Commission’s hearing. jurisdictional determined at However, 67-19a-403(2)(a)(iii).
See section need reach hearing officer did not Lo- she determined that
this issue because cate- grievance did not fall within the
pez’s analysis job sharing policy since our on Lopez points to Resource the Human also policies. Under equally three Management regarding applies to all "Time Limited Po- Rules rules, given ability sitions,” (1991), agencies are R468-5-10 these § Utah Admin.Code Assistance,” positions provide edu- create time limited Utah Admin.Code and "Education (1991). discretion. assistance in their discussion to cation We limit our R468-10-4 *2 Challed, City,
David Salt Lake G. petitioner. Thomas,
R. Dam and Emma R. Paul Van City, respondent Dept, Salt Lake Employment Sec. BENCH, GARFF, BILLINGS and
Before JJ.
OPINION BILLINGS, Presiding Judge: Associate (Bhatia) seeks Petitioner Jasbir S. final decision of the Board of reversal of a Industrial Commission of Review employment, he was (Board) unemployment wished to continue his denying him discharged. meeting A We affirm. told he been benefits. following day, at which was scheduled FACTS sign suspension time Bhatia asked pursuant progressive Pizza notice Hut’s *3 (Pizza Hut) Bha- hired Pizza Hut of Utah policy, Pizza Hut discipline but he refused. April 2, On as a on October tia cook discipline pro- progressive has instituted a 1990, 24, was scheduled work Bhatia improve employee gram to substandard shift, approximately p.m. evening from 5:00 performance provides oral and which for duties closing time. Bhatia’s included until warnings. Bhatia received they written never cutting pizzas and as breadsticks warnings prior to any disciplinary special Due to a formal out of the ovens. came discharge. Hut his Pizza was crowded promotion, evening, particularly and the staff was Employment of Department The Utah busy. Security granted unemployment Bhatia filling 1990, Bhatia behind in orders. 21, was and benefits effective October Also, among reputation Bhatia had 12, 1991, a appealed. Pizza Hut On March preparing orders in the not servers for hearing an administrative was held before he them. sequence in which received judge The judge. law administrative law situation, of this one servers view decision, deter- department’s reversed cutting into area to occasionally went just mining Bhatia terminated for was her to ensure her cus- cut own breadsticks Board, appealed Bhatia to the cause. re- properly served. Bhatia tomers were which affirmed. presence in work the server’s sented court, claims he appeal On this Bhatia loudly times to and told her several area just for cause because: was not terminated leave. (1) incident” His conduct was an “isolated re- approximately p.m., At 7:30 Bhatia (2) and, thus, sufficiently culpable; and telephone call from another em- ceived knowledge he of did not have sufficient informing Bhatia he been dis- ployer, expected Hut because conduct Pizza what part-time position. Al- charged from a pro- management its failed to follow its accepted calmly news though Bhatia gressive discipline policy. work, again returned to became and irritated the server. with OF REVIEW STANDARD having manager, heard restaurant Employment Security Act Utah’s requests, Bhatia’s was aware Bhatia was liberally of af “construed favor upset with the server. v. fording Department Nielsen benefits.” register cash and asked turned from the 774, Sec., Employment 692 P.2d down,” of reminding “to him that him settle curiam); (Utah 1984) (per DeLuca accord pressure. everyone under She advised was Sec., Employment Department over, that, of the rush was him when (Utah However, App.1987). P.2d down and talk” about the “would all sit employee ineligible by throwing responded problem. Bhatia “discharged employee if the benefits announcing, air in a his hands in the determined cause” as hear, enough for customer to voice loud 35-4-5(b)(l) Ann. Board. leaving.” I “This is am bullshit. (1988). approximately out left at then checked was crowded p.m. the restaurant 8:00 while was terminated employee Whether end his shift. When and before the question of law is a mixed cause evening, return Bhatia did not to work Force v. Department Air fact. See em- manager decided to terminate his Sec., 786 Employment Department ployment. (Utah App.), cert. denied Industrial, 795 sub Pizza Hut the nom. United States Bhatia contacted
Although
(Utah 1990);
Depar
Johnson v.
he P.2d 1138
day
next
to advise his
Sec.,
782 P.2d
if
tment
benefits
it
reasonable and ration-
(Utah App.1989).
Utah courts have
al.
recently
traditional
altered the
character
An
is terminated for
ization of the standard of review for such just
“(1)
cause if three factors are met:
adoption
issues because of the
of the Utah
(2) knowledge
culpability,
expected
con
Procedures Act.
In Mor
Administrative
duct,
offending
control over the
International,
Auditing
ton
Inc. v.
Divi
conduct.” Nelson v.
Em
Commission,
sion
the Utah State Tax
ployment
1991),
To ascertain the
standard of
case,
Employee “culpability”
review this
we must thus deter
is the first factor
35-4-5(b)(l) grants
regula-
if
just
mine
section
in the test for
cause. Board
deciding
culpability
Board discretion in
tions define
as “the seriousness
employee
severity
of the of-
was terminated
cause.
conduct or
operative language
in section 35-4-
fense as it affects continuance of the em-
5(b)(1)
ployment relationship.”
Ad-
states that
benefits
Utah Code
R475-5b-102(l)(a) (1991).
employee
if
will not be awarded
“was min.P.
employers
discharged
by
regulations
cause ...
if so found
further state that
Swider,
“right
expect employees
In
to re-
the commission.”
we concluded have
that,
through
language,
requisite
“the
frain from acts which are detrimental
by
Legis
goodwill
affect the
grant of discretion was made
the business” which
business,
Swider,
customers,
efficiency, or
P.2d
disci-
lature
the Board.”
at
Therefore,
uphold
pline.
451.1
Utah Code
R475-5b-107
we will
(1991).2
unemploy-
Culpability may also be estab-
denying
Board’s decision
Morton,
cause.”); Tasters,
("In
(The
utilizing
&
manded the basis for Board’s because affirming the decision of the Admin- unclear, the decision court noted: was Judge, *6 (1989)); 63-46b-16(4)(g) accord Salt § during that that time “he had used foul Comm’n, County Lake Tax State language argued before and he had with 776, (Utah 1991). P.2d “Substantial employees before.” The also “ evidence” is ‘such relevant evidence as a stated Bhatia a “had real hard time with a might accept adequate reasonable mind as supervisor. attempt argue He would ” support a Drilling conclusion.’ Grace people things way with and do his Co. v. Board we wanted him to or not.” (Utah App.1989) (quoting Idaho Ins. State evidence, Based on this the administra- Hunnicutt, Fund v. 110 Idaho judge tive law and the Board determined (1985)). sufficiently culpable Bhatia was to warrant review, To facilitate our it is Bha- denial of benefits. We can- record, duty “properly present the tia’s us, not, say on the record before this deter- by marshaling support all of the evidence mination was unreasonable. that, ing despite findings showing the that evidence and all reasonable inferences KNOWLEDGE OF CONDUCT therefrom, findings that can be drawn the EXPECTED supported by are not substantial evidence.” that, Swider, also because Piz accord Heinecke claims Commerce, progressive disci 810 P.2d za Hut did not follow its warning him App.1991). pline policy4 by of mar that his be Instead shaling supporting improper, the find havior was he did not have suffi evidence however, knowledge employer’s expecta ings, Bhatia has “insisted on em cient of his Bhatia, thus, argues way he had no phasizing supported that his tions. the evidence discharged knowing position, and left it to the court to sort out he would be performance discipline policy employee is con- progressive states 4. Pizza Hut's his/her problem, Warning a to let an Oral is tool and failure to im- "[a]n sidered a serious employee performance is un- know that his/her prove could result in termination.” acceptable," warning written notifies "[a] BENCH, Presiding (concurring): Judge leaving during a using vulgarity and work busy shift. review, setting our standard forth in the test for The second factor opinion generally main refers to a “knowledge” employee’s cause is legislature to grant of discretion from the employer expects. what behavior necessary to I it is the commission. believe regulations specify employee this a clarify that is at in case is what issue employ- not have intended harm need law, grant apply not of discretion reasonably have been able er “should but grant interpret a statute. of discretion anticipate the effect his conduct would resulting of review is While the standard Utah Admin.P. R475-5b- have.” Code same, grant each distinct under Mor- (1991). 102(l)(b) International, Inc. v. State Tax Com- ton mission, n. em employer may
An
demonstrate the
1991).1
ployee
knowledge
employer’s
through
specific
expectations
warn
“[a]
case,
not
In this
Bhatia does
assert
ing,” Utah
Admin.P. R475-5b-
Code
interpretation
“just
the commission’s
102(l)(b); implementation
progressive
aof
cause,”
as set forth
its administrative
program, see
Code Ad
discipline
erroneous;
instead,
rules,
his
claims
R475-5b-102(l)(b)(l);
estab
min.P.
“just
simply did not constitute
actions
lishing the violation is one of a “universal”
not,
This case is
cause”
dismissal.
pre
standard of behavior
therefore,
in-
of the commission’s
review
sumed to know.5
“just
cause.”
terpretation of
term
The Board concluded Bhatia’s behavior
Rather, it is
com-
a review of whether the
job
angrily walking off the
in the middle of
proper-
administrative rules were
mission’s
busy
shift at a crucial time
the em-
ly
to the facts
this ease.
applied
business, leaving
ployer’s
others to assume
notes,
correctly
opinion
As the main
responsibilities,
vulgarity
and his use of
commission,”
phrase “if
found
so
hearing
of customers was “a
within
35-4-5(b)(l)
in Utah Code Ann.
located
flagrant
of a
standard
violation
universal
(1988),
grant
explicit
of discretion to
of behavior.” Utah Code
R475-
language designates
This
apply
law.
We,
5b-102(l)(b).
again,
do
find
must
commission as
tribunal that
*7
decision unreasonable.
is,
not, “just
there
or is
determine whether
Bhatia
terminated for
We conclude
In
to
such a determi-
cause.”
order make
his conduct was suffi-
cause because
nation,
apply the law
the commission must
knowledge of
ciently culpable and he had
to the facts of the case.
expected.6
what behavior
discretion,
explicit grant of
how-
This
Therefore,
the Board’s denial of
we affirm
ever,
goes only
application
to the
of
unemployment benefits.
not,
in
It does
as has been intimated
law.
court,2
GARFF, J.,
past
explicitly
of this
decisions
concurs.
Nelson,
P.2d at
regulations
cause. See
801
5.
further state:
establish
161;
R475-5b-102(l)(c).
Knowledge
employer’s
of
standards
of
usually provided in the
of
is
form
behavior
particular,
1.
noted that
In
it should be
instructions, written rules
verbal
and/or
discovering
analysis
an
in
set forth Morton
However,
warning
warnings.
al-
grant
only
implicit
refers
to the
of discretion
disqualification
ways necessary
apply
for a
to
Morton,
interpret
a
See
discretion
statute.
of
of a serious nature of
in cases
violations
analysis
is no
set
P.2d at
There
588-89.
of conduct of which the
universal standards
regarding
implicit grant of
in Morton
an
forth
have
aware without be-
claimant should
been
analysis
apply
That
has
law.
discretion
ing warned.
developed.
yet to be
R475-5b-108(l)(e); accord
Utah Code Admin.P.
Nelson,
at
Law
David
801 P.2d
of
Offices
See, e.g.,
v. Division
2.
Johnson-Bowles Co.
of
White,
P.2d at 25.
Paul
(Utah
Secs.,
App.1992);
Tast-
829 P.2d
challenge
he had control
ers Ltd.
does not
conduct,
required
App.1991).
364-65
the third element
over his
issue”).
agency
determining
to inter-
not “aid in
If an
grant any discretion to the
[the]
explicit grant
mistakenly
of discretion is
statutory terms.
Ferro v. De-
pret
See
found,
Commerce,
giving
agen-
828 P.2d
we risk
deference to an
partment of
cy interpretation
contrary
In
for there
to the
App.1991).
n. 12
order
grant
legislature’s
interpretation.
own
explicit
of discretion
Mor-
to be
Cf.
ton,
statute,
(legislature’s interpre-
While the distinction between
framework
implicit grant
by
supreme
set forth
court in
grant of discretion and an
Morton
esoteric,
admittedly quite complex, parties
may
discretion
seem
an erroneous
would
finding
explicit grant
properly
of an
of discretion
be wise to assist
this court
determining
prematurely
analysis
by
set forth in
our standard of review
dis-
ends
(an
Morton,
tinguishing
P.2d at 589
and non-UAPA
Morton. See
between UAPA
cases,
interpret
parties
cases.5 For
implicit grant of discretion to
UAPA
only
distinguish
grants
unsuc-
should then
may
statute
be found after an
between
interpret
apply
grants
discretion to
attempt
cessful
the statute
law
interpret
through
statutory
traditional rules of
con- discretion
statute.
some
cases,
struction);
grants may
Corp. v.
Tax
both
need to be shown.
Nucor
State
(Utah 1992)
Comm’n,
grant
We must also know whether the
(no
explicit
implicit.
prac-
implicit grant of discretion found until
discretion is
reality is that we do not
supreme
after
court concluded that
tradi-
tical
have
judicial
possible
all the
statutory
tional rules of
construction did
resources
test
See,
(1988)
7-3-19(4)
agen-
e.g.,
statutory interpretation, nor whether the
§
Utah Code Ann.
(“The
regulation,
cy’s interpretation
legislative
may, by
at
with the
rule or
odds
commissioner
intent.
define the terms ‘loans and extensions of credit’
section.”);
‘person’
this
as used in
26-6-3(2)(b) (1989) ("The depart-
Code Ann. §
understanding
helps
5.It
Morton to note that
shall,
rule,
by
persons
define
who shall be
supreme court refers to the common
while the
'partners'
purposes
considered
of this sec-
law," Morton,
"prior
at
law tests as
26-21-13.5(3) (1989)
tion.”); Utah Code Ann. §
applicable
still
in non-UAPAcases. See
are
(“The
authority
department
to define
has
63-46b-l(2) (1989). The com
Utah Code Ann.
facility’
purposes
rule
health care
‘small
through
mon law tests are therefore referred to
section....”); Utah Code
tense,
licensure under this
thereby
present
in the
creat
out Morton
31A-20-107(5)(b)
(“The
Ann.
commis-
§
ing some confusion as to whether the tradition
‘insignificant
sioner shall define
market share’
statutory
new
tests
al common law tests or the
59-12-104(16)
rule.”);
law, non-UAPA,
Utah Code Ann.
being
Common
are
discussed.
subsection,
(1987) (“For purposes of
past
in Morton from
administra
tests identified
*8
expand-
by
shall
rule define ‘new or
commission
(1)
the issue
tive law cases include
whether
”).
ing operations’
Utah
and ‘establishment.’
may
question
characterized as a mixed
raised
be
Cf.
63-46a-3(2), (3) (1989) (when
Code Ann.
rule-
law, Morton,
P.2d at
see abo
of fact and
making
required).
107, Tasters,
Johnson-Bowles,
rules of implicit is an concluding that there
before legislative
grant of discretion. Unless obvious, peti- or is identified
intent is agency’s
tioner, likely defer to we will that an petitioner If a believes
action. legislative contrary to
agency’s action
intent, petitioner present must that will statutory construction
rules of intent. legislature’s Other-
disclose
wise, may erroneously implicit find an we agen- to the
grant of discretion and defer petition-
cy’s detriment of action
er. INC., SONS, &
HERM HUGHES Appellant,
corporation, Plaintiff and
QUINTEK, corporation, a Utah Appellee.
Defendant
No. 900529-CA. Appeals of Utah. Court of B. and Patrick S. Hendrick- Fetzer Clark June son, City, plaintiff appel- Lake Salt
lant. M. Fer- and Danielle
D. David Lambert Provo, appellee. ron, for defendant BILLINGS, Before JACKSON RUSSON, JJ.
AMENDED OPINION1 RUSSON, Judge: Sons, (Hughes) Hughes ap- & Inc. Herm ruling that no con- peals trial court’s *9 Quintek. Hughes and tract existed between We affirm. FACTS
I.
doing
general
Hughes is a
contractor
October
in the state Utah.
business
May
opinion replaces
opinion of
name issued
the same
This
notes
istrative Law
Board
generally
single
had
warning
required
A
in
that while the claimant
not violated
cases,
employer’s
prior
usual-
rules
last
absence
where
regulations recognize
language
response
profane
or
in
to a civil
that
may
request
if it is condu-
be insubordination
[a]uthority
required
place to
in the work
routine,
disruption
negation of
au-
cive to
efficiency.
employer
order and
An
maintain
efficiency.
thority
impairment
authority
right
expect
lines of
has the
that
R475-5b-108(4) (1991);
see
Code Admin.P.
orders,
maintained;
that
will be
given
reasonable
also
Hohmann
manner,
obeyed;
that
in a civil
will
1984)
(per
465-66
supervisors
respected and
their
will be
curiam)
vulgar
(employee
angry,
who ‘Recame
authority
In deter-
will not be undermined.
supervisor
presence
profane"
in
and oth
(resistance
mining
when insubordination
conduct,
properly
ers
denied
benefits
authority)
disqualifying
becomes
insubordination);
Myers Employ
accord
disregard
employ-
fact that there was a
(Iowa
Bd.,
importance....
Appeal
462 N.W.2d
737-38
major
er’s
is the
interests
vulgar
superior
Ct.App.1990).
remarks
[P]rovocative
night
actually supported
of work and while the acts result- what evidence
the find-
ing
discharge
ings.” Heinecke,
in his
were an “isolated