A03-881

Michael Bowman,

Relator,

vs.

Wrecker Services, Inc.,

Respondent,

Commissioner of Employment

and Economic Development,

Respondent.

Filed March 30, 2004

Affirmed

Hudson, Judge

Department of Employment

and Economic Development

File No. 1198 03

Michael Bowman, 1142 – 14th Avenue Southeast, Minneapolis, Minnesota 55414 (pro se relator)

Wrecker Services, Inc., 200 East Lyndale Avenue North, Suite 100, Minneapolis, Minnesota 55405-1501 (respondent)

Lee B. Nelson, Katrina I. Smith, Minnesota Department of Employment and Economic Development, 390 North Robert Street, St. Paul, Minnesota 55101 (for respondent commissioner)

Considered and decided by Stoneburner, Presiding Judge; Anderson, Judge; and Hudson, Judge.

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

HUDSON, Judge

On appeal from the commissioner’s representative’s finding of employment misconduct, relator contends he did not intentionally ignore his employment duties or violate the standards of conduct expected by his employer because he was never warned that his employment could be terminated for arriving to work late. Because the record reasonably tends to support the findings of the commissioner’s representative, we affirm.

FACTS

Relator, Michael Bowman, was employed as a full-time truck driver for Wrecker Services (Wrecker) from October 1994 until December 26, 2001. Relator was scheduled to work Monday through Friday from 8:00 a.m. to 5:00 p.m. The vice president of Wrecker, Lisa Rose, testified that relator consistently came to work late, stating that often times he did not show up for work until ten or eleven o’clock in the morning. Rose testified that relator was verbally warned on numerous occasions that continued tardiness was unacceptable. Wrecker documented in its files when relator was tardy and then warned him verbally. Relator testified he only remembered being warned once or twice and did not know that being late was a problem. Rose testified that on August 13, 2001, after continuing to arrive to work late, relator was suspended.

Even after relator’s suspension ended, he continued to arrive to work late. On October 11, 2001, Rose testified that she warned relator that if he continued to arrive to work late it could result in suspension or termination. Despite this warning relator was reprimanded again on November 30, 2001, for arriving to work late four out of five days during that week. On December 22, 2001, relator missed a mandatory training meeting. Relator admits that he knew about the meeting, but he testified that he did not attend the meeting because he was visiting his grandfather in the hospital. After arriving late again on December 23, 24, and 25, relator’s employment was terminated on December 26, 2001. The Department of Employment and Economic Development (the department) determined that relator was ineligible for benefits, and the unemployment law judge affirmed this determination. Relator appealed the unemployment law judge’s determination, and the commissioner’s representative affirmed the unemployment law judge’s determination. This certiorari appeal follows.

D E C I S I O N

This court reviews the decision of the commissioner’s representative rather than that of the unemployment-law judge. See Weaver v. Minnesota Valley Labs., Inc., 470 N.W.2d 131, 133 (Minn. App. 1991). We must defer to the commissioner’s representative’s findings of fact if the evidence reasonably supports them, but we exercise independent review over questions of law. Smith v. Employers’ Overload Co., 314 N.W.2d 220, 221 (Minn. 1981). Whether an employee committed the specific act or acts alleged to be misconduct is a question of fact for determination by the commissioner’s representative. Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997). Whether the specific act or acts constitute misconduct is a question of law, which this court reviews de novo. Id.

Relator argues that he did not intentionally commit employment misconduct because he was never warned that Wrecker would dismiss him for arriving to work late. He contends that Wrecker made up the reprimands that it brought to the unemployment hearing. Wrecker contends that relator was verbally warned on numerous occasions that continued tardiness was unacceptable.

When there is inconsistent testimony in the record, we defer to the credibility determinations of the commissioner’s representative. Nyberg v. R.N. Cardozo & Brother Inc., 243 Minn. 361, 364, 67 N.W.2d 821, 823 (1954); Heitman v. Cronstroms Mfg., Inc., 401 N.W.2d 425, 427 (Minn. App. 1987). Here, the commissioner’s representative found the testimony of Wrecker’s representatives more credible than that of relator by concluding that Wrecker discharged relator for employment misconduct because he was consistently tardy for work, received several warnings about his tardiness, continued to be tardy after receiving warnings and a suspension, and intentionally missed a mandatory training meeting. The record supports the commissioner’s representative’s findings. Wrecker produced copies of multiple documents from the employee file that described instances where relator was verbally warned about being tardy. In addition, Wrecker provided copies of relator’s time cards for the end of October 2001 through the end of December 2001, which showed that relator was late several times during this period. Moreover, relator testified that he may have been warned once or twice about arriving to work late. Finally, relator testified that he knew about the mandatory training meeting on December 22, 2001, but did not attend the meeting.

Based on the commissioner’s representative’s findings, we conclude that relator’s actions constituted employment misconduct. “Employment misconduct” is defined as any intentional conduct that “disregards the standards of behavior that an employer has the right to expect of the employee” or any negligent conduct that “demonstrates a substantial lack of concern for the employment.” Minn. Stat. § 268.095, subd. 6(a) (2002). “The employer has a right to expect an employee to work when scheduled.” Little v. Larson Bus Serv., 352 N.W.2d 813, 815 (Minn. App. 1984) (citation omitted). Evenson v. Omnetic’s, 344 N.W.2d 881, 883 (Minn. App. 1984) (violating policy manual by reporting late without explanation constituted misconduct); McLean v. Plastics, Inc., 378 N.W.2d 104, 106-07 (Minn. App. 1985) (arriving late 13 times in 12 months after receiving two warnings constituted misconduct). Excessive tardiness or absences, particularly after warnings, may evidence an employee’s disregard of an employer’s interest or lack of concern for the employment. Evenson, 344 N.W.2d at 883.

Relator’s chronic tardiness, even after receiving numerous warnings, evinces an intent to disregard the wishes of his employer. Such conduct represents his lack of concern for the job and disregard for his employer’s interest.

Affirmed.