This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






Bernard West,





Copper Sales, Inc.,



Commissioner of Economic Security,



Filed March 19, 2002


Randall, Judge


Department of Economic Security

File No. 383401



Bernard West, 6050 Highway 10 NW, Lot 39, Anoka, MN 55303 (pro se relator)


Copper Sales, Inc., 1001 Lund Boulevard, Anoka, MN 55303 (respondent)


Philip B. Byrne, Minnesota Department of Economic Security, 390 North Robert Street, St. Paul, MN  55101 (for respondent Commissioner of Economic Security)


            Considered and decided by Randall, Presiding Judge, Klaphake, Judge, and Poritsky, Judge.*


U N P U B L I S H E D   O P I N I O N

R. A. RANDALL, Judge

            Relator challenges the commissioner's representative's decision that he was disqualified from receiving unemployment benefits because he committed misconduct by poking a co-worker in the throat and, after relator was suspended, by making a threatening remark to the co-worker, in violation of the employer's policy against violence.  Relator argues that the co-worker ignored him and interfered with his work, that he was afraid of the co-worker, and that he pushed the co-worker away after being threatened by him.  We affirm.  


             Relator Bernard West was employed with Copper Sales, Inc. ("Copper Sales") from October 1998 to March 14, 2001, as a material handler.  Copper Sales suspended and later terminated relator after he and a co-worker had an altercation. 

            The day before the altercation, while working second-shift, relator inadvertently caused a machine to shut down.  On March 8, 2001, relator approached the co-worker, and they argued about whether the co-worker should have informed the first-shift machine operator of the problem.  After the co-worker began running his machine, relator asked him what he wanted loaded on the machine.  The co-worker did not answer relator, and relator yelled at him.  Shortly thereafter, while laughing or smiling at relator, the co-worker told relator what he needed.  Relator "did not like that" and again yelled at the co-worker for not informing the first-shift operator of the machine problem.  The co-worker told relator that relator would not have caused the machine to shut down if he had not been "so high" (i.e., under the influence of an illegal substance) at the time.  Relator responded that the co-worker did not know how to do his job.  The co-worker "got into [relator's] face," and they argued.  At this point, relator thrust his finger at the co-worker's neck, jabbing the co-worker in the "Adam's Apple."  The co-worker denied provoking relator.

The co-worker reported the incident to the supervisor the next day, and relator was suspended for the conduct.  On his way out of the building after being suspended, relator told the co-worker that the next time the co-worker gets "in somebody's face they're going to end up shooting you and it ain't going to be me."  Copper Sales has a written policy that prohibits "[f]ighting or threatening violence in the workplace."  Several members of Copper Sales' management reviewed relator's suspension and terminated relator based on the seriousness of the offense.  

After his termination, relator applied for unemployment benefits.  The Department of Economic Security determined that relator was disqualified because he had been discharged for employment misconduct.  Relator challenged the decision, and after a hearing, the unemployment judge concluded that relator was disqualified from receiving benefits.  Relator appealed, and on August 16, 2001, the commissioner's representative affirmed the decision, concluding that relator was discharged for willful misconduct and that relator did not offer any compelling justification for his behavior.  Relator challenges the commissioner's representative's decision. 


            An employee who is discharged from employment for employment misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4(1) (2000).  Whether the employee is disqualified from receiving benefits because of misconduct is a mixed question of fact and law.  Colburn v. Pine Portage Madden Bros., 346 N.W.2d 159, 161 (Minn. 1984).  The commissioner's representative's factual findings are viewed in the light most favorable to the decision and will be upheld if the evidence in the record reasonably supports those findings.  Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996).  After the facts are established, whether the employee's behavior constituted misconduct under the statute is a question of law reviewed de novo on appeal.  Monyoro v. Marriott Corp., 403 N.W.2d 325, 328 (Minn. App. 1987). 

            The evidence in the record supports the commissioner's representative's factual findings that relator committed the two acts alleged to be misconductThe co-worker testified that relator (1) poked him in the throat and (2) later told him that the next time the co-worker gets "in somebody's face they're going to end up shooting you and it ain't going to be me."  Relator admits the two acts occurred but asserts that he only attempted to push the co-worker away from him.  The commissioner's representative, instead, believed the co-worker's testimony.  See Dean v. Allied Aviation Fueling Co., 381 N.W.2d 80, 83 (Minn. App. 1986) (stating determinations regarding credibility lie within province of commissioner's representative).  The evidence reasonably supports the commissioner's representative's findings.  Thus, we will not disturb the findings. 

            Next, we must decide whether, as a matter of law, relator's actions rose to the level of misconduct contemplated under Minn. Stat. § 268.095, subd. 6 (2000).  Misconduct includes

[a]ny intentional conduct, on the job or off the job, that disregards the standards of behavior that an employer has the right to expect of the employee or disregards the employee's duties and obligations to the employer.


Minn. Stat. § 268.095, subd. 6(a)(1).  Minn. Stat. § 268.095, subd. 6(b) excludes from misconduct conduct due to "[i]nefficiency, inadvertence, simple unsatisfactory conduct, or poor performance because of inability or incapacity, or absence because of illness or injury."

            Relator asserts that the co-worker ignored him and interfered with his work, that he was afraid of the co-worker because the co-worker was close to his face and was backing relator up, and that he only attempted to push the co-worker away when he unintentionally poked him in the throat.  The record supports that relator intentionally made physical contact with the co-worker in a heated argument and then indirectly threatened future physical harm.  The company has a written policy that fighting or threatening violence in the workplace is unacceptable behavior.  "[P]hysical confrontation is generally misconduct,"  and an employer has the right to expect that its employees will not to engage in conduct that seriously endangers people's safety.  Shell v. Host Int'l (Corp.), 513 N.W.2d 15, 18 (Minn. App. 1994) (citation omitted).  We conclude that relator's conduct falls within the statutory definition of misconduct because relator intentionally engaged in conduct that disregarded "the standards of behavior that an employer has the right to expect of the employee."  See Isse v. Alamo Rent-A-Car, 590 N.W.2d 137, 140 (Minn. App. 1999), review denied (Minn. Apr. 20, 1999) (affirming commissioner's representatives decision that relator committed misconduct where relator was suspended and later terminated after he grabbed co-worker by shirt and pushed him against wall); Shell,513 N.W.2d at 18 (concluding pushing supervisor in chest was misconduct). 

            Even assuming, for the sake of argument, that relator did not intend to poke the co-worker in the throat, he did intend to push the co-worker away.  The physical contact was made in a heated argument and it was serious physical contact.  "Because violent behavior interferes with the normal operation of a business, it constitutes misconduct."  Shell, 513 N.W.2d at 17.  A single incident may constitute misconduct disqualifying an employee from unemployment benefits.  Wilson v. Comfort Bus Co., 491 N.W.2d 908, 911 (Minn. App. 1992), review denied (Minn. Jan. 15, 1993).  Relator could have avoided the situation.  He could have sought assistance from the supervisor when he claims the co-worker "ignored him," or handled the situation with more discussion, rather than physical action.

            We find the commissioner's representative's findings are supported by the record, and relator's conduct disregarded the standards of behavior that an employer has the right to expect of the employee.  The commissioner's representative properly concluded that relator was disqualified from receiving unemployment benefits. 


*  Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. Art. VI, § 10.