This opinion will be unpublished and

may not be cited except as provided by

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

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-96-2534

Alan A. Grundhauser,

Relator,

vs.

Home Depot USA, Inc.,

Respondent,

Commissioner of Economic Security,

Respondent.

Filed April 15, 1997

Affirmed

Lansing, Judge

Department of Economic Security

File No. 6941UC96

Alan A. Grundhauser, 8949 42nd Street North, Lake Elmo, MN 55042 (Pro se Relator)

Home Depot USA, Inc., c/o Gibbons Co., Inc., P.O. Box 3930, Des Moines, IA 50322-3930 (Respondent)

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

Considered and decided by Peterson, Presiding Judge, Lansing, Judge, and Crippen, Judge.

U N P U B L I S H E D O P I N I O N

LANSING, Judge

The Commissioner's representative determined that an employee committed disqualifying misconduct for reemployment insurance purposes. We affirm the representative's determination that the employee committed misconduct by giving a family member an unauthorized discount on the employer's merchandise.

F A C T S

Home Depot USA, Inc. employed Alan Grundhauser for five months as a full-time salesperson. Grundhauser was discharged after Home Depot discovered that he had given his brother an unauthorized discount on a sale of cedar-text lap siding.

Home Depot had established a policy that if a competitor offered a lower price on an item, Home Depot would sell the item for ten percent less than the competitor's price. Grundhauser claimed that he had discounted the cedar-text lap siding in accordance with this policy because a competitor was charging one cent less than Home Depot's price. Home Depot's store manager, however, testified that the competitor was actually charging one cent more than Home Depot for the siding. Grundhauser disputes the Commissioner's representative's findings on this issue.

D E C I S I O N

An employee who is discharged from a job for misconduct is disqualified from receiving reemployment insurance benefits. Minn. Stat. § 268.09, subd. 1(b) (1996). An employer has the burden of proving misconduct by a preponderance of the evidence. Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).

We review the Commissioner's representative's findings in the light most favorable to the decision, to determine whether there is evidence in the record that reasonably tends to sustain the findings. Id. Although the question of whether an employee committed misconduct is one of law upon which we may exercise our independent judgment, id., we are not free to reject the Commissioner's representative's credibility determinations. Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).

There is evidence to support the Commissioner's representative's finding that the competitor was charging one cent more for the cedar-text lap siding than Home Depot, rather than one cent less. Home Depot's store manager testified that he had called the competitor and was informed that they were actually selling the siding for one cent more than Home Depot.

The Commissioner's representative found that if Grundhauser had had a competitor's advertisement in his possession at the time of the price quote, he would have attached the advertisement to his paperwork. On appeal, Grundhauser argues that he did not have a copy of the advertisement in his possession when he discounted the siding for his brother because he had verified the price by a telephone call. But at the hearing, Grundhauser testified twice that when he gave his brother the discount, he had an advertisement from the competitor.

In a remand request to the Commissioner's representative, Grundhauser submitted a copy of an advertisement by the competitor. The advertisement, however, did not support Grundhauser's remand request: it stated a price different from the one Grundhauser testified he was quoted by the competitor; it was for "textured hardboard lap siding" rather than cedar-text lap siding; and it was published two days after Grundhauser's price quote to his brother.

Grundhauser claims that although he was the one who quoted his brother the discounted price, a "reviewer" actually rang up the sale. But Grundhauser admitted that he had simply turned over his brother's pre-paid check to the reviewer. The elements of the transaction that violated the policy were completed by Grundhauser, and it is his knowing violation of the rules that constituted misconduct. See Dean v. Allied Aviation Fueling Co., 381 N.W.2d 80, 83 (Minn. App. 1986).

Grundhauser argues that the reviewer's initials should have been put on the order when it was entered into the cash register. But Home Depot's evidence indicated that a reviewer's initials were not necessary when a quote was turned into an order.

Finally, Grundhauser argues that he had difficulty at the hearing, and the reemployment insurance judge did not offer him sufficient direction or assistance. The transcript does not support this argument. In fact, the judge was careful to schedule a second hearing when Grundhauser claimed that he was denied the opportunity to question witnesses whom he had subpoenaed.

Grundhauser's remaining arguments were not raised below. See Jaakola v. Duluth/Superior Area Educ. Television Corp., 374 N.W.2d 215, 217 (Minn. App. 1985) (issues not raised below will not be considered for first time on appeal).

Affirmed.