This opinion will be unpublished and

may not be cited except as provided by

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




Lee R. Johnson,



Douglas Corporation,


Commissioner of Economic Security,


Filed November 4, 1997


Amundson, Judge

Department of Economic Security

File No. 242 UC 97

Lee R. Johnson, 6600 74-1/2 Avenue North, Brooklyn Park, MN 55428 (pro se relator)

Carolyn J. Trevis, Dorsey & Whitney L.L.P., Pillsbury Center South, 220 South Sixth Street, Minneapolis, MN 55402 (for respondent Douglas Corporation)

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

Considered and decided by Kalitowski, Presiding Judge, Huspeni, Judge, and Amundson, Judge.



Relator Lee R. Johnson challenges the commissioner's representative's decision denying his claim for reemployment insurance benefits. The commissioner's representative concluded that Johnson was discharged from his job for misconduct disqualifying him from receiving reemployment insurance benefits. According to the commissioner's representative, and the record, Johnson's misconduct consisted of repeated unexcused absences and tardiness. We affirm.


Relator Lee R. Johnson worked full-time as the director of purchasing for respondent Douglas Corporation (Douglas) from November 6, 1978, through October 8, 1996. On October 8, 1996, Douglas discharged Johnson because of his poor attendance, repeated tardiness, and failure to work the required hours.

On June 9, 1992, Johnson read and signed a performance review that concluded that he met and exceeded his major job requirements. An additional comment made on this review stated that Johnson, "has also markedly improved his time of arrival as well as increased the number of Friday work days." On November 19, 1993, Johnson read and signed a performance review that contained the statement, "I believe there has been some regression on Friday coverage."

Douglas permitted Johnson to leave work on Tuesday afternoons to participate in a golf league during the summer months. Douglas expected Johnson to make up the time he missed when he left early to play golf. The record indicates that Johnson did not always make up the time.

In 1994 and 1995, Douglas delayed Johnson's annual pay increases because of his tardiness and attendance problems. In late January 1996, Johnson and his supervisor met to discuss Johnson's performance. The supervisor told Johnson that his tardiness had gotten worse, that he had been late for at least 15 hours during the period from mid-May through mid-November 1995, and that he had not adequately covered the time that he took off on Tuesdays. Johnson did not sign the performance review.

In early 1996, Douglas informed Johnson and other employees that Friday work was mandatory and that all salaried employees were required to work five hours on Fridays. Douglas's written policy for salaried employees stated that the "normal starting time is 7:00 a.m. and the normal quitting time is 5:30 p.m." The policy also required that an employee inform his supervisor and the switchboard operator when away from work for personal reasons.

In May 1996, Johnson's supervisor met with him to discuss Johnson's tardiness and his failure to make up the time that he missed when he left work early to play golf. The supervisor reminded Johnson of his scheduled working hours: 7:00 a.m. until 5:30 p.m., Monday through Thursday, and five hours on Friday.

On July 17, 1996, Johnson's supervisor advised him that his tardiness and absenteeism were not acceptable. Johnson had been late for work 12 times during the period from May 28 to July 16, 1996. He also had left work early on various occasions and he did not work the required hours.

Johnson missed work on Friday, October 4, 1996, because he gave a friend a ride out of town. Johnson had taken work home the night before, but he did not discuss with, or get permission from his supervisor to miss work. On October 8, 1996, Douglas discharged Johnson from work due to his tardiness and absenteeism. The commissioner's representative found that Johnson did not work the mandatory five hours on the following Fridays: July 12, July 26, August 2, September 6, and September 13, 1996. The commissioner's representative also found that Johnson was late on July 31, September 11, and September 25, 1996. This appeal followed.


This court reviews the decision of the commissioner's representative rather than that of the reemployment insurance judge. Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995). The commissioner's representative's findings should be reviewed in the light most favorable to that decision, and should not be overturned if there is evidence in the record that reasonably tends to sustain those findings. Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989). The ultimate determination whether an employee committed misconduct is, however, a question of law upon which this court is "free to exercise its independent judgment." Id.

An individual who is discharged from a job for misconduct is disqualified from receiving reemployment insurance benefits. Minn. Stat. § 268.09, subd. 1(b) (1996). The supreme court has adopted the following definition of "misconduct":

[T]he intended meaning of the term "misconduct" * * * is limited to 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 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)).

Repeated absences or tardiness may constitute misconduct. McLean v. Plastics, Inc., 378 N.W.2d 104 (Minn. App. 1985) (employee's excessive tardiness constituted misconduct); Flahave v. Lang Meat Packing, 343 N.W.2d 683 (Minn. App. 1984) (employee's failure to notify employer of intended absences upon four occasions in one year constituted misconduct). Even a single absence without prior notification may constitute misconduct. Del Dee Foods, Inc. v. Miller, 390 N.W.2d 415 (Minn. App. 1986). Additionally, failure to follow an employer's policies may constitute misconduct. See Gilkeson v. Industrial Parts & Serv., Inc., 383 N.W.2d 448 (Minn. App. 1986) (employee committed misconduct by engaging in pattern of failing to follow policies and procedures and ignoring directions and requests); Edwards v. Yellow Freight Sys., 342 N.W.2d 357 (Minn. App. 1984) (where employee had received several warnings, employee's persistent absenteeism and repeated failure to comply with employer's regulation to provide advance notice when unable to report to work constituted misconduct, even though there was evidence that the employee was ill).

The record clearly indicates that Douglas sustained its burden of proof. It follows, therefore, that the commissioner's representative properly determined that Douglas discharged Johnson from work for misconduct, which disqualified him from benefits. Douglas's policy required salaried employees to work specified hours. Johnson continually failed to abide by the required work schedule, either by reporting late for work or by missing work entirely. Douglas properly expected Johnson, its purchasing director, to be at work during the required working hours. Johnson was advised numerous times that his absenteeism and tardiness was unacceptable. Despite these warnings, Johnson's tardiness continued and he did not work several days. Although Johnson claims that he worked some hours on certain days, the commissioner's representative specifically found the testimony of James Wazlawik, Johnson's supervisor, more credible on this point than Johnson's testimony.

Douglas gave Johnson several opportunities to improve his attendance. Johnson, however, failed to improve. It follows, therefore, that the commissioner's representative properly decided that Johnson was discharged on the basis of employment misconduct.




Judge Roland C. Amundson