This opinion will be unpublished and

may not be cited except as provided by

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




Douglas A. Svoboda,



EDCO Products, Inc.,


Commissioner of Economic Security,


Filed June 9, 1998


Willis, Judge

Department of Economic Security

File No. 4916UC97

Steven W. Anderson, Dunkley, Bennett & Christensen, P.A., 701 Fourth Ave. S., Suite 700, Minneapolis, MN 55415 (for relator)

Mary M. Krakow, Steven E. Helland, Fredrikson & Byron, P.A., 1100 International Centre, 900 Second Avenue South, Minneapolis, MN 55402 (for respondent EDCO Products, Inc.)

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

Considered and decided by Willis, Presiding Judge, Randall, Judge, and Klaphake, Judge.



Relator challenges the commissioner's representative's affirmance of a finding that relator was discharged for misconduct and the representative's refusal to remand for a hearing to take additional evidence on his qualification for reemployment insurance benefits. We affirm.


Relator Douglas A. Svoboda was employed as a forklift operator with respondent EDCO Products, Inc. (EDCO), from August 1993 until May 1997. During Svoboda's employment with EDCO, he received many oral and written warnings regarding his job performance.

On May 10, 1997, Svoboda was moving two skids of vinyl siding with his forklift. He lifted the pallets approximately 15 feet in the air with his forklift as he drove down a ramp. His supervisor told him to stop and lower the forklift's mast so that another worker could move a pallet out of the way before Svoboda continued to move his load. Svoboda did not lower his mast and when he turned, the forklift tipped onto another forklift, nearly crushing a co-worker with the load of vinyl siding and damaging the co-worker's forklift. Svoboda's supervisor suspended him from work until further notice. Two days later, EDCO's human resources manager notified Svoboda that his employment was terminated for "engaging in insubordinate conduct and failure to follow supervisory instructions as well as reckless operation of a forklift involving violation of safety rules."

An adjudicator determined that Svoboda was not disqualified from receiving reemployment insurance benefits. EDCO appealed the determination. At a hearing on June 26, 1997, before a reemployment insurance judge, Svoboda stated that he had been "trying to contact the Volunteer Lawyer's Network" but that they were unable to represent him on such short notice. He claimed that he had called the Network the day before the hearing and they advised him to request a continuance of the hearing. Svoboda made no advance request to reschedule the hearing. The reemployment insurance judge told Svoboda that he could have made a request for continuance when he received notice of EDCO's intent to appeal and, denying Svoboda's request, he proceeded with the hearing.

The reemployment insurance judge reversed the adjudicator's determination, finding that EDCO discharged Svoboda for misconduct that included Svoboda's history of oral and written warnings and suspensions from 1994 until his termination.

Svoboda appealed the reemployment insurance judge's decision to a commissioner's representative, who affirmed, finding that Svoboda "was not discharged for a single incident, but [EDCO] took into account [his] entire disciplinary record." He concluded that EDCO established by a preponderance of the evidence that it discharged Svoboda for misconduct. He also concluded that Svoboda had "adequate opportunity to prepare, to appear and present evidence, and also to obtain representation," and because he did not request a continuance in advance of the hearing date, Svoboda was not entitled to a remand of the matter for the purpose of taking further evidence. This appeal followed.


Svoboda argues that the commissioner's representative erred when he refused to remand the matter for a new hearing at which Svoboda would be represented by counsel and could object to evidence that was admitted when he was unrepresented.

The construction of an agency regulation is a question of law, which this court reviews de novo. St. Otto's Home v. Minnesota Dep't of Human Servs., 437 N.W.2d 35, 39-40 (Minn. 1989). In reviewing such a question, this court is not bound by the decision of the agency and need not defer to agency expertise. Id. This court will substitute its own judgment and not give the agency's construction of its own regulation deference if "the language of the regulation is clear and capable of understanding." Id. at 40.

A party may be represented by an agent in a proceeding before a reemployment insurance judge. Minn. Stat. § 268.105, subd. 6 (Supp. 1997). Minn. R. 3310.2908 (1997) provides that

[r]equests to reschedule a hearing must be addressed to the appellate office in advance of the regularly scheduled hearing date. The request may be made in person, by telephone, or in writing. Unless a determination is made by the appellate office that a request to reschedule a hearing is made for the purposes of delay, a hearing shall be rescheduled by the appellate office based on a party's need for additional time * * * to obtain representation or adequately prepare * * * , or other compelling reasons beyond the control of the party which prevent attendance at the originally scheduled time.

The language of Minn. R. 3310.2908 is unambiguous. The record shows that Svoboda did not address a request to reschedule the hearing to the appellate office in advance of the regularly scheduled hearing date. Instead, he waited until the regularly scheduled hearing to make his request. The commissioner's representative did not err in affirming the reemployment insurance judge's refusal to reschedule the hearing.