This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).



Dale Myrum,


USX Corporation,

Commissioner of Economic Security,

Filed August 8, 2000
Parker, Judge

Department of Economic Security
File No. 251899


Andy Borland, Sellman Law Office, 1907 Third Avenue East, Suite 1, P.O. Box 37, Hibbing, MN 55746 (for relator)

USX Corporation, Mt. Iron - Minntec Location, P.O. Box 147, Mt. Iron, MN 55768 (respondent employer)

Kent E. Todd, Department of Economic Security, 390 North Robert St., St. Paul, MN 55101 (for respondent Commissioner of Economic Security)

            Considered and decided by Halbrooks, Presiding Judge, Peterson, Judge, and Parker, Judge.

U N P U B L I S H E D   O P I N I O N


            Relator Dale Myrum appeals the determination of the commissioner’s representative that he was discharged from his employment for actions constituting misconduct disqualifying him from receiving reemployment compensation.  We reverse.


            This court reviews the findings of the commissioner’s representative, not those of the reemployment judge, even when those findings involve witness credibility.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  Whether an employee has committed disqualifying misconduct is a mixed question of fact and law.  Colburn v. Pine Portage Madden Bros., 346 N.W.2d 159, 161 (Minn. 1984).  The ultimate determination of whether misconduct has occurred is a question of law which this court reviews de novo.  Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).  Findings of the commissioner’s representative, however, must “be viewed in the light most favorable to the decision, and if there is evidence reasonably tending to sustain them, they will not be disturbed.”  White v. Metropolitan Med. Ctr., 332 N.W.2d 25, 26 (Minn. 1983).

            Myrum argues the commissioner’s representative erred in concluding that the presence of alcohol in his blood system, in violation of a “last-chance” agreement he had signed, constituted intentional misconduct.  An individual who is discharged for misconduct as defined in the reemployment compensation statute is disqualified from receiving reemployment compensation benefits.  Minn. Stat. § 268.095, subd. 4 (Supp. 1999).  Employment misconduct is defined by the statute as:

(1) any intentional conduct, on the job or off the job, that disregards the standards of behavior that an employer has the right to expect of the employee or disregards the employee’s duties and obligations to the employer; or

(2) negligent or indifferent conduct, on the job or off the job, that demonstrates a substantial lack of concern for the employment.

Id. at subd. 6 (Supp. 1999).  The issue, therefore, is not whether an employer was “justified” in discharging an employee, but whether the employee’s actions constituted “misconduct” for reemployment compensation purposes.  McCourtney v. Imprimis Tech., Inc., 465 N.W.2d 721, 724 (Minn. App. 1991).

            The commissioner’s representative found that Myrum engaged in intentional misconduct when he violated the provisions of his last-chance agreement.  Myrum, a 29-year employee of respondent USX Corporation, signed this agreement after an alcohol and drug violation more than a year earlier.  This agreement allowed Myrum’s employer to terminate his employment if he tested positive for drugs or alcohol.  Myrum had permission to use alcohol in moderation while off-duty, but he knew that any alcohol in his system when he was working would jeopardize his employment.

            Myrum was terminated from employment when he tested positive for alcohol with a .045 blood-alcohol level at work.  The commissioner’s representative determined that Myrum “should have known that there would be alcohol in his system the following day when he reported for work,” after he had three beers while golfing, had one dose of Nyquil because of a bad toothache before he went to bed around 9 p.m., and had another dose of Nyquil around midnight.  He went to work at 5 a.m., two hours earlier than usual that morning, because he had to leave work early for a dental appointment.  The commissioner’s representative concluded that Myrum’s violation of the last-chance agreement constituted intentional misconduct disqualifying Myrum from reemployment compensation.

The record does not, however, support the commissioner’s representative’s finding that Myrum was discharged for intentional misconduct.  See Smith v. American Indian Chem. Dependency Diversion Project, 343 N.W.2d 43, 44 (Minn. App. 1984) (“Misconduct, as a disqualification, is to be narrowly construed.”).  Myrum testified that he did not believe he would have alcohol in his system when he went to work on the morning in question.  The commissioner’s finding that Myrum “should have known” he would still have alcohol in his system does not rise to the level of “intentional conduct” such as to justify disqualification from reemployment benefits.  Myrum’s actions were not shown to have constituted knowing, intentional misconduct and did not show a substantial disregard of his employment.  We conclude that on this evidence, the commissioner’s representative erred in finding this discharge to have been for intentional misconduct disqualifying Myrum from receiving reemployment benefits.


* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.