This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






Marlon S. Williams,





Archives Corp.,



Commissioner of Employment and Economic Development,



Filed ­­­December 9, 2003


Harten, Judge


Department of Employment and Economic Development

Agency File No. 17556 02


Marlon S. Williams, 7611-36th Avenue North, #107, New Hope, MN 55427 (pro se relator)


Lee B. Nelson, Philip B. Byrne, Department of Employment and Economic Development, 390 North Robert Street, St. Paul, MN 55101 (for respondent Commissioner)


Kay Nord Hunt, Diane M. Odeen, 1800 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for respondent Archives Corp.)


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


U N P U B L I S H E D   O P I N I O N




Relator Marlon Williams challenges the decision by the commissioner’s representative that he was discharged for employment misconduct and was disqualified from receiving unemployment benefits because he violated his employer’s time-clock policy.  Because evidence in the record reasonably supports the findings of the commissioner’s representative, and the findings support a conclusion that Williams was discharged for employment misconduct, we affirm.


            Archives employed Williams as a warehouse worker.  Archives has a policy that its employees must punch in and out on the time clock whenever they leave the warehouse, whether to smoke or otherwise.  The record shows that Williams was aware of his employer’s time card policy “a couple of months” after beginning his employment, that he failed to follow the policy twice between 21 August and 13 September 2002 and that on 16 September he was given a written warning, was placed on a 90-day probation for the time-card policy violations, and was advised that if he violated the policy again he would be terminated.  Williams violated the policy again on 4 October.  On 14 October 2002 Williams was terminated for having violated Archives’s time clock policy.

            Williams applied for unemployment benefits.  A department of economic security adjudicator determined that Williams was disqualified from receiving benefits because he was discharged for employment misconduct.  An unemployment law judge reversed this determination, concluding that Williams was discharged for reasons other than employment misconduct.  The commissioner’s representative reversed, determining that Williams was discharged for employment misconduct.  Williams appeals by writ of certiorari. 

D E C I  S I O N

Our scope of review in unemployment benefit cases is limited to determining whether the record reasonably supports the commissioner’s representative’s decision.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  Decisions of the commissioner’s representative are accorded particular deference.  Id.  The commissioner’s representative’s determination that an employee is disqualified from receiving benefits for reasons of misconduct is a mixed question of fact and law.  Colburn v. Pine Portage Madden Bros., 346 N.W.2d 159, 161 (Minn. 1984).  The commissioner’s representative’s factual findings are viewed in the light most favorable to the decision and will not be disturbed if evidence in the record reasonably tends to sustain them.  Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996).   We review de novo whether the employee’s actions constituted employment misconduct and disqualified the employee from receiving unemployment benefits.  Ress v. Abbott Northwestern Hosp. Inc., 448 N.W.2d 519, 523 (Minn. 1989).

Williams challenges two of the commissioner’s representative’s findings of fact.  First, Williams argues that the record does not support the finding that Archives informed him on 21 August 2002, “that he knew the rules and that [taking a smoke break without punching out] was inappropriate.”  Williams testified that he was not informed on 21 August of Archive’s time clock policy.  He believes his testimony is more credible than an exhibit submitted by Archives, stating that the president of Archives caught Williams smoking outside while still punched in, that Williams was informed that “he knew the rules,” that “he needed to punch out for breaks,” and that he would be written up “for not punching out” to smoke.  When parties present conflicting evidence, we must defer to the commissioner’s ability to weigh the evidence.  Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995).  The commissioner’s representative found the information contained in the exhibit more credible than Williams’s testimony, and the exhibit reasonably supports the representative’s finding.

Williams asserts that, although the exhibit supports the representative’s finding, the exhibit was “not subject to any authentication, nor was the employer available for cross-examination on its content.”  Thus, he believes there is “no competent evidence to sustain [the representative’s] finding.”  While Archives did not appear at the hearing before the unemployment law judge, it did submit eight exhibits, including the exhibit detailing the 21 August incident.  When asked if he had a legal objection to the exhibits, Williams replied, “No,” and the exhibits were received into evidence.  Because the exhibits were properly received into evidence, the commissioner’s representative was entitled to consider them in making a credibility determination regarding the conflicting evidence.

Second, Williams argues that the record does not support the finding that he left Archives’ “building for over an hour without punching out” on 4 October 2002.  Initially, Williams testified that he did not leave work for an hour without punching out on that date, but later testified that it was “possible” that he left work without punching out.  Archives submitted an exhibit that specifies Williams’ conduct on 4 October.  The memo shows that Williams was observed leaving the warehouse without punching out around 4:30 p.m., that he returned to work at 5:45 and punched his time card, indicating that he punched out and left at 5:45, and that he punched his time card again at 6:45, indicating that he was returning after a one-hour break.  This evidence reasonably supports the representative’s finding.

Williams also argues that the commissioner’s representative erred in concluding that he committed misconduct because no evidence in the record shows he deliberately ignored company policy or was unconcerned for his job.  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 . . . that demonstrates a substantial lack of concern for the employment.


Minn. Stat. § 268.095, subd. 6 (a)(1), (2) (2002).[1]  For conduct to be intentional, it must be deliberate and not accidental.  Houston v. Int’l Data Transfer Corp., 645 N.W.2d 144, 149 (Minn. 2002).  An employer has the right to expect that its employees will follow its time-card procedures.  See Ruzynski v. Cub Foods, Inc., 378 N.W.2d 660, 662-63 (Minn. App. 1985).

            The commissioner’s representative found that Williams’ actions “evince an intent to disregard the employer’s policies” and “demonstrate . . . negligent or indifferent conduct which shows a substantial lack of concern for his employment.”  The record supports these findings.  It shows that Williams repeatedly violated the policy by deliberately manipulating the time clock.  His actions on 4 October also demonstrate his substantial lack of concern for his employment, considering that he had been warned that further policy violations would result in his termination.  The representative’s findings support the conclusion that Williams was discharged for employment misconduct.

Finally, Williams argues that the commissioner’s representative erred by failing to make the same findings as the unemployment law judge.  But the commissioner's representative is not bound by the unemployment law judge's interpretation of the record.  Minn. Stat. § 268.105, subd. 2(c) (2002).  And a reviewing court must examine the decision of the commissioner’s representative, rather than that of the unemployment law judge. Kalberg v. Park & Recreation Bd., 563 N.W.2d 275, 276 (Minn. App. 1997).  Consequently, this argument has no merit.


[1] The legislature amended Minn. Stat. § 268.095 in 2003.  The amendments change the definition of employment misconduct.  Because Williams was discharged prior to 1 August 2003, the effective date of the new amendments, the 2002 statutes apply in this case.