This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






Bruce A. Benson,





Coca-Cola Enterprises, Inc.,



Commissioner of Employment and Economic Development,



Filed June 22, 2004


Gordon W. Shumaker, Judge


Department of Employment and Economic Development

File No. 18870 02




Bruce A. Benson, 8424 113th Street South, Cottage Grove, MN 55106-4519 (pro se relator)


Coca-Cola Enterprises, Inc., Eagan Location, Attn: Scott W. Anderson, 2750 Eagandale Boulevard, Eagan, MN 55121-1209 (respondent employer)


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



          Considered and decided by Peterson, Presiding Judge; Shumaker, Judge; and Anderson, Judge.

U N P U B L I S H E D   O P I N I O N



Relator challenges the decision of the commissioner’s representative disqualifying him from receiving unemployment benefits because he was discharged for employment misconduct.  We affirm. 


Respondent employer Coca-Cola Enterprises, Inc. (Coca-Cola) employed relator Bruce A. Benson as a full-time delivery truck driver from March 8, 1988, through December 23, 2002.  Federal Motor Carrier Safety Regulations section 391.27, the Department of Transportation (DOT), and Coca-Cola require all drivers to submit a yearly certification of any driving violations, excluding parking tickets, occurring in the previous 12 months.  Falsification of the annual certification violates company policy and can result in various levels of disciplinary action. 

            In January 2001, Benson received a driving citation in Wisconsin for operating a snowmobile while intoxicated.  He pleaded guilty and paid a fine.  Benson testified that he did not report the incident to Coca-Cola because he believed it to be a petty misdemeanor.  At the time of the incident, Benson had a Minnesota driver’s license.  In June 2001, he relocated and relinquished his Minnesota driver’s license in order to obtain a Wisconsin driver’s license.  In September 2001, Benson’s Minnesota driver’s license was revoked as a result of two DWIs: (1) the January 2001 snowmobile incident and (2) a September 1997 incident (previously reported to Coca-Cola).

Respondent-employer Coca-Cola discovered Benson’s second DWI while performing a routine records check on all company drivers in October 2002.  On November 5, 2002, Benson was suspended without pay pending an investigation, and on December 23, 2002, Benson was terminated for falsifying company documents.

Coca-Cola testified that Benson completed his annual certification without disclosing the January 2001 DWI, noting that falsifying company documents is a violation of both company policy and federal regulations. 

Benson argues that he was unaware that his Minnesota license was revoked until it was brought to his attention in November 2002.  He contends that, in order to obtain a Wisconsin driver’s license, he had to produce his Minnesota driving record, which in June 2001 did not contain the January 2001 DWI conviction.  Benson further argues that this is the reason he was unaware of his Minnesota license revocation and of the need to report the violation on his December 5, 2001, annual certification. 

Benson established a benefit account with the Department of Employment and Economic Development on November 3, 2002.  A department adjudicator determined that Benson was disqualified from receiving benefits.  He appealed.  An unemployment law judge reversed, finding that Benson’s actions did not amount to employment misconduct.  Coca-Cola appealed.  The commissioner’s representative reversed, finding that Benson was discharged for employment misconduct and therefore was not entitled to receive unemployment benefits.  Benson appeals that determination.


Relator Benson argues that his actions do not qualify as employment misconduct under the statute.

On appeal, a reviewing court must examine the decision of the commissioner’s representative, rather than that of the unemployment law judge.  Kalberg v. Park & Recreation Bd., 563 N.W.2d 275, 276 (Minn. App. 1997).  Decisions of the commissioner’s representative are accorded “particular deference.”  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).

An employee discharged for misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4(1) (2002).[1]  Despite the statute’s recent amendment, we apply the statute that was in effect at the time of the discharge: 

(1) Any 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; or

(2) negligent or indifferent conduct, on the job or off the job, that demonstrates a substantial lack of concern for the employment.


Minn. Stat. § 268.095, subd. 6(a) (2002); see Minn. Stat. § 645.02 (2002) (providing that unless otherwise specified, laws are effective August 1 of year enacted). 

Whether an employee is discharged for employment misconduct is a mixed question of fact and law.  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  Whether or not an employee committed misconduct is a question of fact.  Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  Whether that act constitutes misconduct is a question of law, which this court reviews de novo.   Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).  A reviewing court remains “free to exercise its independent judgment” when deciding a question of law as to whether or not an employee’s act constitutes employment misconduct.  Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996). 

When there is conflicting evidence, this court must defer to the commissioner’s representative’s ability to weigh the evidence and make credibility determinations.  Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995).  This court may not weigh the evidence on review.  Id.

The record establishes that Benson knew of and understood company policies and federal regulations requiring him to report all convictions of driving offenses in a 12-month period.  He testified that he was convicted of a DWI while operating a snowmobile while intoxicated.  He was required to report this conviction.  His failure to report evinces the requisite intent to disregard the standards of behavior Coca-Cola had the right to expect. 

            When viewed in a light most favorable to the decision, the record reasonably supports the commissioner’s representative’s findings of fact that Benson intentionally falsified company documents by failing to report his DWI conviction on his annual certification form.  Based on these facts, the record reasonably supports the commissioner’s representative’s conclusion of law that Benson’s act constituted employment misconduct.  Benson’s failure to report a required moving violation to employer Coca-Cola leads this court to conclude that the commissioner’s representative’s decision was properly decided and Benson is therefore disqualified from receiving unemployment benefits.



[1]  The definition of “employment misconduct” was modified in 2003 to read: “(a) Employment misconduct means any intentional, negligent, or indifferent conduct, on or off the job (1) that evinces a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee, or (2) that demonstrates a substantial lack of concern for the employment.  2003 Minn. Laws 1st Spec. Sess. ch. 3, art. 2, § 13.