This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. sec. 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-96-501

Bekele Betalom,

Relator,

vs.

Campbell Soup Company,

Respondent,

Commissioner of Economic Security,

Respondent.

Filed October 8, 1996

Affirmed

Toussaint, Chief Judge

Commissioner of Economic Security

File No. 9724UC95

Bekele Betalom, 1009 Third Avenue, Apt. 306, Worthington, MN 56187 (pro se relator)

Campbell Soup Company, 115 Ninth Street, Worthington, MN 56187 (respondent/employer)

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

Considered and decided by Toussaint, Chief Judge, Randall, Judge, and Amundson, Judge.

UNPUBLISHED OPINION

TOUSSAINT, Chief Judge

Relator, Bekele Betalom, seeks review of a decision denying him reemployment insurance benefits. The Commissioner's representative concluded that Betalom committed disqualifying misconduct by violating the standards of behavior the employer had a right to expect. Because there is support in the record for the Commissioner's representative's determinations, we affirm.

D E C I S I O N

The determination of whether an employee has committed disqualifying misconduct is a mixed question of fact and law. Colburn v. Pine Portage Madden Bros. Inc., 346 N.W.2d 159, 161 (Minn. 1984). This court reviews the findings of the Commissioner's representative, not the reemployment insurance judge, even when the findings involve witness credibility. See Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995) (citing Semanko v. Department of Employment Servs., 309 Minn. 425, 428, 244 N.W.2d 663, 665 (1976)). The Commissioner's representative's findings should be viewed in the light most favorable to the decision and should not be overturned if there is evidence in the record that reasonably tends to sustain the findings. Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989) (citing McGowan v. Executive Express Transp. Enters. Inc., 420 N.W.2d 592, 594 (Minn. 1985); White v.

Metropolitan Medical Center 332 N.W.2d 25, 26 (Minn. 1983)). The ultimate determination of whether an employee committed misconduct is, however, a question of law upon which this court may exercise its independent judgment. Id. (citing McGowan v. Executive Transp. Enters., Inc., 420 N.W.2d 592, 594 (Minn. 1985); Smith v. Employers' Overload Co., 314 N.W.2d 220, 221 (Minn. 1981)).

The reemployment insurance statute is remedial in nature and is to be liberally construed in favor of awarding benefits. Ress, 448 N.W.2d at 523. As a result, the employer has the burden of proving by a preponderance of the evidence that an employee has committed disqualifying misconduct. Id.

An employee who commits misconduct is disqualified from receiving reemployment insurance benefits. The applicable statute provides:

(1) Disqualifying conditions. An individual separated from any employment under paragraph (a), (b), or (d) shall be disqualified for waiting week credit and benefits. For separations under paragraphs (a) and (b), the disqualification shall continue until four calendar weeks have elapsed following the individual's separation and the individual has earned eight times the individual's weekly benefit amount in insured work.

(b) Discharge for misconduct. The individual was discharged for misconduct, not amounting to gross misconduct connected with work or for misconduct which interferes with and adversely affects employment.

Minn. Stat. § 268.09, subd. (1) (b) (Supp. 1995). The legislature has not defined "misconduct," but the supreme court has adopted the following definition:

* * * [T]he intended meaning of the term "misconduct" * * * is limited to conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed "misconduct" * * *.

Tilseth v. Midwest Lumber Co., 295 Minn. 372, 374-75, 204 N.W.2d 644, 646 (1973) (quoting Boynton Cab Co. v. Neubeck, 237 Wis. 249, 259, 296 N.W. 636, 640 (1941)). The issue is not whether the employer was justified in terminating the employee, but whether the employee's actions constituted "misconduct" for reemployment insurance purposes. McCourtney v. Imprimis Technology, Inc., 465 N.W. 2d 721, 724 (Minn. App. 1991).

Betalom applied for and was denied reemployment insurance benefits. The reemployment insurance judge found Betalom's conduct (1) constituted a refusal to comply with the reasonable directive of a supervisor, (2) resulted in his being discharged for refusing to work on two separate occasions, and (3) was disqualifying as defined by Minn. Stat. § 268.09, subd. (1) (b) (1995). Finally, the reemployment insurance judge found that the work directives of the company were reasonable, and that Betalom was denied reemployment insurance benefits. Betalom appealed to the Commissioner.

The Commissioner's representative found two instances of alleged misconduct by Betalom. First, it is an undisputed fact that Betalom refused to wear safety gloves given to him by his supervisor. These gloves were required to perform his job. The gloves were for Betalom's protection and all the employees working in that department were required to wear them.

Betalom argues that (1) the gloves were "dirty, blood and meat, something else dirty", his concern being that wearing the gloves could have resulted in rejection of his work "if the safety controllers (USDA)" came to inspect the plant, and (2) he "did not need to wear somebody's diseased or dirty glove". However, Betalom did not mention his concern for the company's best interest and his own personal safety to his supervisor, Alan Lewis, or anyone else at the company. He did not express these concerns during his reemployment insurance hearing. The record indicates that the gloves were, in fact, used gloves, but were not dirty.

The company had a policy of issuing gloves to employees and requiring the employees to take them home and wash them. Lewis testified that (1) the policy began in July and, as of November, he had not issued any more new gloves to the employees, and (2) the gloves he gave Betalom were fine and he would have worn them himself. Second, the Commissioner's representative also found, as a basis for misconduct, Betalom's initial refusal to work the picking fingers. Betalom claims that he did not want to do the job because it would cause him chest pains. However, the record indicates that Betalom saw the company nurse before beginning work that day and he did not mention anything to her about any chest pains. Additionally, when Betalom was assigned the job by the lead worker, Joyce Farragher, he told her that he couldn't do the work because it would make his knees hurt. Even though Betalom did finally perform the job, without incident, the time lost was approximately 30 minutes. There is support in the record for both of these findings.

The Commissioner's representative concluded that Betalom (1) violated the standards of behavior the company had a right to expect of Betalom as an employee, and (2) was discharged for reasons amounting to disqualifying misconduct.

An employee's refusal to comply with the reasonable requests of his or her employer constitutes misconduct. See McGowan v. Executive Express Transp. Enters., Inc., 420 N.W.2d 592, 596 (Minn. 1988) (employee's refusal to pick up employer's prescription constituted misconduct). The company's request that Betalom wear used, but clean, safety gloves was a reasonable request. It was a company policy that was followed by all employees working in that department.

The company's request that Betalom work the picking fingers was reasonable, also. Betalom had performed the job numerous times and knew how to do the work. He had been examined by the company nurse. He was not placed on any work restriction with regard to his knees or his chest and did not inform the nurse about any problems during the examination. The conflicting statements by Betalom to Farragher and Lewis were resolved by the Commissioner's representative and support the determination of misconduct due to a refusal to work. The Commissioner's representative's finding that both of these incidents constituted a refusal to work and, thus, the conclusion that Betalom was discharged for disqualifying misconduct under Minn. Stat. § 268.09, subd. 1 (b) (1995), are supported by the record.

Affirmed.