This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. sec. 480A.08, subd. 3 (1996).




Carlos Jimenez,



Leaders Manufacturing, Inc.,


Commissioner of Economic Security,


Filed April 15, 1997


Randall, Judge

Department of Economic Security

File No. 5601 UC 96

John E. Mack, Schneider Law Firm, 706 South First Street, P.O. Box 776, Willmar, MN 56201 (for relator).

Kathryn N. Smith, Schmidt, Thompson, Johnson, & Moody, P.A., 701 Litchfield Ave., S.E., Suite 100, Willmar, MN 56201 (for respondent Leaders Manufacturing, Inc.).

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

Considered and decided by Klaphake, Presiding Judge, Randall, Judge, and Foley, Judge[*].



In this certiorari appeal, relator challenges the Commissioner's representative's decision affirming his disqualification from employment benefits on the basis of misconduct for violating respondent employer's safety guidelines. We affirm.


Relator was employed full time by respondent Leaders Manufacturing, Inc. (Leaders) as a machine operator from February 22, 1993, to May 15, 1996. On the morning of May 15, during a monthly inspection tour of Leaders's plant, Hector Padilla and two other employees discovered relator operating a 30-ton press with the safety switch taped over. The taped safety switch had been covered by a baseball cap and disabled the safety mechanism on the machine. When questioned by Padilla, relator stated that he did not tape the switch and that it had been in that condition for nearly three years. Padilla testified that two days earlier he had not noticed any tape on the switch.

Later that day, relator was called into the office of Craig Nelson, the plant manager, and terminated. The reason provided for relator's termination was that he violated company safety rules by operating a machine with the safety device improperly disengaged.

According to the testimony of Padilla and Nelson, the operation of plant machinery with the safety devices disabled is in violation of the company's safety rules. The safety rules also provide that at the beginning of each shift the machine operators are required to inspect their machines to make sure that the safety devices and machines work properly. Any problem is to be reported to the supervisor and the machine is not to be operated.

Although none of the safety manuals is printed in Spanish, Padilla, who speaks English and Spanish, trained relator in the operation of the machine in question. Padilla stated that he showed relator how to operate the machine properly and that he told him about all of the safety devices. He testified further that he told relator to never operate the machine when the safety device was disabled.


On appeal from a decision of the Commissioner, the applicable standard of review is whether there is "reasonable support in the evidence" to sustain the decision of the Commissioner. Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995). The narrow standard of review requires that the Commissioner's findings 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. Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989). Thus, the reviewing court may not reweigh the evidence and determine where the preponderance lies. Nyberg v. R.N. Cardozo & Bro., Inc., 243 Minn. 361, 364, 67 N.W.2d 821, 823 (Minn. 1954).

Relator argues that he was denied a fair hearing before the reemployment insurance judge because the Department of Economic Security denied him the use of a professional translator and because there were substantial errors in the translation of the record.

The rules governing reemployment proceedings state that an interpreter shall be provided upon the request of a party. Specifically, the rules provide:

The department [of Economic Security] shall provide an interpreter, when necessary, upon the request of a party. The requesting party shall notify the appellate office at least seven calendar days before the date of the hearing that an interpreter is required. If no request is made, the referee shall continue any hearing where a witness or principal party in interest is a handicapped person so that an interpreter can be appointed.

Minn. R. 3310.2911 (1996).

Respondent Commissioner agrees that relator was entitled to have the department provide the services of a qualified interpreter if he made such a request. However, the record is clear that during the evidentiary hearing, while being represented by counsel, relator did not raise the issue of translation services. Relator does not contend that the department refused a request for an interpreter. Relator neither requested that the hearing be continued until the services of a qualified interpreter could be secured, nor did he object to the use of his friend Roberto Trevino as the interpreter during the hearing. We conclude that relator waived any right to object to the qualifications of his own interpreter by failing to make an objection on the record and by failing to request a continuance so that a qualified interpreter could be provided. See e.g., State v. Her, 510 N.W.2d 218, 223 (Minn. App. 1994) (holding that defendant in criminal trial waived the issue of whether the interpreters were qualified by failing to object to the translation), review denied (Minn. Mar. 15, 1994). On these facts, the reemployment insurance judge properly conducted the hearing using an interpreter whom relator agreed to, at least to the point where relator voiced absolutely no objection.

In arguing that the translation by Trevino was in error, relator has provided this court with an alternative transcript containing what he purports to be the correct translation. However, in his appeal to the Commissioner, relator failed to request a remand on the issue of whether there were errors in the translation. See Minn. Stat. § 268.105, subd. 3 (1996) (providing that the Commissioner, in reviewing the referee's decision, may remand the matter back to the referee for the taking of additional evidence and new findings). A remand would have allowed a factual record to be developed on the issue of whether the translation provided by Trevino was substantially in error. This was not done. There is no factual record by which the Commissioner or this court can properly review the appropriateness of Trevino's translation. There is no affidavit or testimony from the translator regarding his alternative translation, the translator's qualifications, or the alleged errors in the original translation by Trevino. As such, there is no basis on which this court (or the Commissioner) can conclude that the original translation is in error.

Next, relator argues the reemployment insurance judge (and the Commissioner's representative) erred when he refused to admit into evidence a summons and complaint filed by relator alleging employment discrimination against Leaders. Relator argues the summons and complaint showed prejudice and bias on the part of Leaders and tends to show that Leaders's excuse for discharging him was pretextual. Relator also impliedly argues that Leaders's decision to appeal the department claim representative's award of reemployment benefits constitutes a reprisal under Minn. Stat. § 363.03, subd. 7(1) (1996). A reemployment insurance judge is not bound by the statutory and common law rules of evidence. Minn. Stat. § 268.105, subd. 1 (1996); Pichler v. Alter Co., 307 Minn. 522, 523, 240 N.W.2d 328, 329 (1976). The judge may receive any evidence that "possesses probative value, including hearsay, if it is the type of evidence on which reasonable, prudent persons are accustomed to rely in the conduct of their serious affairs." Minn. R. 3310.2922. The judge may also exclude any evidence that is "irrelevant, immaterial, unreliable, or unduly repetitious." Id. Thus, the decision to admit or exclude evidence is generally within the discretion of the reemployment insurance judge.

Leaders, as the employer, had every right to appeal the initial determination of the Department to award relator reemployment benefits. Neither Leaders's appeal to the reemployment insurance judge nor relator's discharge was related to the filing of his employment discrimination lawsuit against Leaders. Relator was discharged before he filed the lawsuit. On this record, we cannot conclude that Leaders "engaged in retaliatory conduct" when it exercised its legal right to appeal.

Relator, through his attorney, had the opportunity to try to prove discrimination or retaliation by Leaders through the direct examination of relator and the cross-examination of the witnesses for Leaders. The reemployment insurance judge did not err in excluding evidence of the summons and complaint. We note that relator's lawsuit against Leaders is independent of this action, and Leaders concedes that the lawsuit survives regardless of our decision here.

Next, relator challenges the representative's conclusion that he engaged in disqualifying misconduct. An employee discharged from his or her employment for misconduct is not entitled to reemployment insurance benefits. Minn. Stat. § 268.09, subd. 1(b) (1996). The employer has the burden of proving, by the greater weight of evidence, that an employee has committed "misconduct." Peterson v. Fred Vogt & Co., 495 N.W.2d 875, 877 (Minn. App. 1993). Whether an employee has committed misconduct is a mixed question of fact and law. Colburn v. Pine Portage Madden Bros., 346 N.W.2d 159, 161 (Minn. 1984). Whether the findings support a determination of misconduct, however, is a question of law upon which this court may exercise its independent judgment. Hayes v. Wrico Stamping Griffiths Corp., 490 N.W.2d 672, 674 (Minn. App. 1992).

The Minnesota Supreme Court has defined "misconduct" as

conduct evincing such willful 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) (citation omitted).

Here, the Commissioner's representative adopted the findings of the reemployment insurance judge. That judge found that relator, in contravention of Leaders's safety rules, put tape on a safety switch in order to disengage the safety mechanism. The Commissioner's representative concluded that relator's conduct showed a substantial and deliberate disregard of Leaders's interest, a violation of the standards of behavior that Leaders had a right to expect of it employees, and a lack of concern for his job as well as his safety and the safety of others.

Relator argues that violations of a safety rule designed to protect employees should not, under ordinary circumstances, constitute misconduct for the purposes of Minn. Stat. § 268.09, subd. 1(b). We cannot agree with relator.

An employer has a right to expect an employee to abide by reasonable policies and procedures. See McGowan v. Executive Express Transp. Enters., Inc., 420 N.W.2d 592, 596 (Minn. 1988) (noting that an employer "must be allowed to expect that reasonable orders will be followed"); Sandstrom v. Douglas Mach. Corp., 372 N.W.2d 89, 91 (Minn. App. 1985) (holding that refusal to accede to reasonable request of employer that does not impose unreasonable burden on the employee constitutes misconduct).

An employer has the right to expect its safety rules will be followed by an employee. Employers have a legitimate interest in the safety and protection of their employees. The failure to adhere to an employer's safety rules and procedures by an employee can constitute employee misconduct under Tilseth. That is what the Commissioner's representative concluded, and we do not disturb that conclusion on appeal.

Relator argues there is no evidence that he placed the tape on the safety switch. Relator states that the tape had been there for nearly three years. Even assuming the testimony of relator to be true, the evidence shows that he violated Leaders's safety rules by operating the machine with the safety switch disabled. The plant safety rules require machine operators to check their machines at the start of their shifts to make sure that they are in proper working order and that the safety devices work. Any problems are to be reported to the supervisor. Had relator checked his machine at the start of his shift, as he was required to do, he would have discovered the tape over the safety switch. By his own admission he operated the machine with the safety device disabled. He simply argues that "somebody else disabled the switch." If the tape had, in fact, been there for three years, it is clear evidence that relator operated his machine in violation of company safety rules.

Lastly, relator argues that others who operated the same machine with the safety switch disabled were not similarly disciplined. Different degrees of discipline for same or similar conduct is never a blanket defense to the claim of misconduct. See Wilson v. Comfort Bus Co., 491 N.W.2d 908, 912 (Minn. App. 1992) (holding that an employer's failure to discipline other employees for similar conduct is "irrelevant"), review denied (Minn. Jan. 15, 1993).

Because of our decision, and because of our analysis of the issue of relator's submission of an alternative transcript, we decline to address Leaders's motion to strike relator's alternative transcript from the record. The motion has no effect on our decision.


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