This opinion will be unpublished and

 may not be cited except as provided by

 Minnesota Stat. § 480A.08, subd. 3 (2000).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-00-2162

 

NewMech Companies, Inc.,
Relator,

vs.

Marvin F. Youness,
Respondent,

Commissioner of Economic Security,
Respondent.

 

Filed September 18, 2001

Affirmed

Peterson, Judge

 

 

Department of Economic Security

File No. 676400

 

 

Brenna E. Nelson, Gerald S. Duffy, Siegel, Brill, Greupner, Duffy, & Foster, P.A., 100 Washington Square,  1300 Washington Avenue, Minneapolis, MN  55104 (for relator)

 

Marvin F. Youness, 400 First Avenue South, South St. Paul, MN  55075 (pro se respondent)

 

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

 

 

            Considered and decided by Harten, Presiding Judge, Kalitowski, Judge, and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

This appeal is from a decision of the representative of respondent Commissioner of Economic Security that relator NewMech Companies, Inc., discharged respondent Marvin F. Youness for reasons other than employment misconduct and, therefore, that Youness is not disqualified from receiving unemployment compensation benefits.  We affirm.

FACTS

            Youness is a journeyman pipefitter who was employed by NewMech and worked on a job at the 3M research facility in St. Paul.  NewMech asked Youness and several other employees at the 3M site to provide urine samples for a drug-and-alcohol test.  The test was being administered pursuant to the drug and alcohol policy and program that had been agreed to by the Minnesota Pipe Trades Association and the Minnesota Mechanical Contractors Association, of which NewMech is a member.

The employees were not given a copy of the policy, and it was not read to them, but they were shown a copy of it.  There was no union steward at the testing site. 

Two employees took the test, but the others refused based on a lack of privacy due to 3M security cameras in the area.  The following day, NewMech moved the test site to another location, and all of the remaining employees except Youness and two others took the test.  NewMech told Youness to leave the job site, and he was not allowed to return to work. 

D E C I S I O N

An employee discharged from employment for misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4(1) (2000).  Whether an employee has committed acts of disqualifying misconduct is a mixed question of fact and law.  Colburn v. Pine Portage Madden Bros., 346 N.W.2d 159, 161 (Minn. 1984).  This court views the commissioner’s representative’s factual findings in the light most favorable to the decision and will not disturb the findings if there is evidence in the record that reasonably tends to support them.  Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996).  But the ultimate question of whether an employee’s actions constitute misconduct “is a question of law upon which this court remains free to exercise its independent judgment.”  Id. (quotation omitted).

                                    Employment misconduct means:

(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.

 

Minn. Stat. § 268.095, subd. 6(a) (2000). 

            An employer has the right to expect an employee to abide by reasonable requests within the expected job duties of the employee.  McGowan v. Executive Express Transp. Enters., 420 N.W.2d 592, 596 (Minn. 1988).  Generally, when an employer’s request is reasonable and does not impose an undue burden on the employee, the employee’s refusal to comply with the request constitutes misconduct.  Soussi v. Blue & White Serv. Corp., 498 N.W.2d 316, 318 (Minn. App. 1993).  Determining the reasonableness of the request will vary based on the facts of each case.  Sandstrom v. Douglas Mach. Corp., 372 N.W.2d 89, 91 (Minn. App. 1985).

            The commissioner’s representative determined that Youness did not commit disqualifying misconduct by refusing to take the test because Youness had valid concerns about whether he was required to take the test and about the confidentiality of the test results.

Minn. Stat. § 181.951, subd. 1 (2000), states, in part:

            (a)  An employer may not request or require an employee or job applicant to undergo drug and alcohol testing except as authorized in this section.

 

(b)  An employer may not request or require an employee or job applicant to undergo drug or alcohol testing unless the testing is done pursuant to a written drug and alcohol testing policy that contains the minimum information required in section 181.952[.]

 

NewMech contends that the test Youness was asked to undergo was administered pursuant to section 7(a) of the drug and alcohol policy and program, which states:

Pre-placement Testing:        A pre-placement drug test may be administered to all applicants for employment pursuant to Minn. Stat. § 181.951, Subd. 2, provided a conditional offer of employment has been extended.  If pre-placement testing is conducted, all applicants conditionally offered employment must be tested. 

 

NewMech argues that under section 7(a), it could require Youness to take the test as an applicant for employment because Youness, like all union members, was employed on a day-to-day basis and could have been assigned by the union to any job with any contractor during the time he worked at the 3M site.  NewMech contends that the commissioner’s representative’s decision that the drug policy does not apply to Youness has no basis in fact or law.

            But the commissioner’s representative did not decide that the drug policy does not apply to Youness; he found that Youness did not intentionally disregard NewMech’s interests.  We understand the commissioner’s representative’s reasoning to be that because Youness began working for NewMech on May 15, 2000, one month before he was asked to take the test, it was not clear that he could be tested as an applicant for employment.  Youness raised this concern about the applicability of the testing requirement, and NewMech did not address his concern.  Therefore, when Youness refused the test, he did not disregard the standards of behavior that NewMech had a right to expect of him; he doubted the validity of the standard of behavior NewMech attempted to impose.  Youness believed that NewMech did not have a right to require him to take the test and could not make doing so a standard of behavior.  The evidence in the record reasonably tends to support the commissioner’s representative’s finding.

            The commissioner’s representative’s reasoning also applies to NewMech’s argument that it could require Youness to take the drug-and-alcohol test because he held a safety-sensitive position. 

            An employer may request or require only employees in safety-sensitive positions to undergo drug and alcohol testing on a random selection basis.

 

 Minn. Stat. § 181.951, subd. 4 (2000).

            “Safety-sensitive position” means a job, including any supervisory or management position, in which an impairment caused by drug or alcohol usage would threaten the health or safety of any person.

 

Minn. Stat. § 181.950, subd. 13 (2000). 

Youness did not believe that he held a safety-sensitive position. NewMech presented evidence that all pipefitters are considered to be in safety-sensitive positions, and Youness acknowledged that there was a general understanding that all people in the piping industry are considered to be safety-sensitive workers.  But there was no evidence that the particular job that Youness did was safety-sensitive.  Because there was no evidence that Youness’s job was safety sensitive, the commissioner’s representative’s finding that Youness did not take the test because of his concern that he was not required to, rather than because he disregarded a requirement that he take it, is reasonably supported by the record.  See Eyler v. Minneapolis Star & Tribune Co., 427 N.W.2d 758, 761 (Minn. App. 1988) (to constitute misconduct, employee must act with disregard of employer’s legitimate interest, not an illegal one); Christenson v. City of Albert Lea, 409 N.W.2d 564, 565-66 (Minn. App. 1987) (if employee reasonably believes that employer’s request is illegal, refusal to comply does not constitute misconduct) . 

            The commissioner’s representative’s reasoning also applies to Youness’s concerns about the confidentiality of the test results.  The drug and alcohol policy and program  states:

            Test result reports and other information acquired in the drug or alcohol testing processes are private and confidential information and may not be disclosed by the employer or laboratory conducting the test to any other employer or to a third party, individual, governmental agency, or private organization without the written consent of the employee tested.

 

Youness testified that he was concerned about a third party gaining access to the results of the test because, based on the test results, NewMech would indicate in a database whether an employee is eligible for work.  Youness was concerned that other employers would have access to this database and that they could infer from an indication that he was not eligible for employment that he had failed a drug-and-alcohol test.

NewMech presented evidence that a third-party administrator notes whether the employee is eligible or ineligible for employment, but does not indicate the results of the drug test.  Even if this is the case, however, when Youness refused to take the test, he was concerned that the test results would be disclosed, and NewMech did not address this concern.  See Christenson, 409 N.W.2d at 566 (relevant inquiry is whether employee “reasonably believed” that compliance with employer’s request would violate regulations).

The commissioner’s representative’s finding that Youness did not take the drug-and-alcohol test because he had valid concerns about whether the test results would be disclosed, rather than because he disregarded a requirement that he take the test, is reasonably supported by the record.

Because the record reasonably supports the commissioner’s representative’s finding that Youness did not intentionally disregard the standards of behavior NewMech had a right to expect of Youness, the commissioner’s representative did not err when he concluded that Youness was discharged for reasons other than employment misconduct and, therefore, that he is not disqualified from receiving unemployment benefits.

Affirmed.