This opinion will be unpublished and

may not be cited except as provided by

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







Leonard M. Merchlewitz,





Winona Lighting, Inc.,



Commissioner of Employment and Economic Development,



Filed June 8, 2004


Willis, Judge


Department of Employment and Economic Development

File No. 17 03


Thomas H. Boyd, David M. Aafedt, Winthrop & Weinstine, P.A., 225 South Sixth Street, Suite 3500, Minneapolis, MN  55402 (for relator)


Winona Lighting, Inc., 3760 West Fourth Street, P.O. Box 1205, Winona, MN  55987-7205 (respondent)


Lee B. Nelson, M. Kate Chaffee, Department of Employment and Economic Development, 390 Robert Street North, St. Paul, MN  55101 (for respondent Commissioner)


            Considered and decided by Schumacher, Presiding Judge; Willis, Judge; and Hudson, Judge.


U N P U B L I S H E D  O P I N I O N


            Relator challenges the determination of the commissioner’s representative that relator is disqualified from receiving unemployment benefits because he was discharged for employment misconduct.  Because we conclude that the commissioner’s representative’s findings have reasonable evidentiary support and that relator committed employment misconduct, we affirm.


Relator Leonard Merchlewitz was employed by Winona Lighting in its buffing department from December 1995 until November 6, 2002.  As part of its collective bargaining agreement with Merchlewitz’s union, Winona Lighting could discharge an employee who has received three written warnings within a rolling 12-month period.

Before his discharge on November 6, 2002, Merchlewitz had received two written

warnings within less than 12 months:  the first was in January 2002 for working on a personal project on company time and the second was in July 2002 for taking an unauthorized break.  On November 5, 2002, Merchlewitz was issued two more written warnings:  the first for failing to follow a supervisor’s order and the second for smoking in the men’s room, in violation of Winona Lighting’s no-smoking policy. 

Because the November 5 warnings were the third and fourth that Merchlewitz had received in a 12-month period, Winona Lighting discharged him on November 6, 2002.  Merchlewitz filed a grievance with his union, and, after it conducted an investigation, the union notified Merchlewitz that it would not pursue his claim.

An adjudicator with the Minnesota Department of Employment and Economic Development determined that Merchlewitz was disqualified from receiving benefits.  An unemployment-law judge (ULJ) affirmed the department’s determination, and the commissioner’s representative affirmed the ULJ’s decision.  This certiorari appeal follows.




On review, this court will consider only whether the record reasonably supports the decision of the commissioner’s representative.  Tuff v. Knitcraft Corp.,526 N.W.2d 50, 51 (Minn. 1995).  We do not evaluate the evidence but instead defer to the commissioner’s representative’s ability to weigh conflicting evidence.  Whitehead v. Moonlight Nursing Care, Inc.,529 N.W.2d 350, 352 (Minn. App. 1995). The commissioner’s representative’s factual findings will be viewed in the light most favorable to the decision.  Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996).  On appeal, the determination of whether an employee committed a particular act is a question of fact.  Scheunemann v. Radisson South Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  But whether an act is employment misconduct is a question of law reviewed de novo.  Id.

            In determining that Merchlewitz committed employment misconduct, the commissioner’s representative applied the definition of misconduct that appears in Minn. Stat. § 268.095, subd. 6(a) (Supp. 2003), which was the statute in effect when the Department of Employment and Economic Development adjudicated Merchlewitz’s eligibility.[1]  This was error.  An employee’s conduct must be judged against the law in effect at the time the employee was discharged.  See Bray v. Dogs & Cats Ltd., 679 N.W.2d 182, 186 (Minn. App. 2004). 

Under the statute in effect when Merchlewitz was discharged on November 6, 2002, employment misconduct was defined as: 

(1)       any intentional conduct . . . 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 . . . that demonstrates a substantial lack of concern for the employment.


Minn. Stat. § 268.095, subd. 6(a) (2002).  To establish employment misconduct under subdivision 6(a)(1),

there must be a sufficient showing in the record that the employee not only engaged in intentional conduct, but also intended to, or engaged in conduct that evinced an intent to, ignore or pay no attention to his or her duties and obligations or the standards of behavior the employer has a right to expect.


Houston v. Int’l Data Transfer Corp., 645 N.W.2d 144, 150 (Minn. 2002).  “A single incident where an employee deliberately chooses a course of action adverse to the employer can constitute misconduct.”  Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 524 (Minn. 1989).

Merchlewitz’s employment was terminated after he received his third and fourth written warnings in a 12-month period.  The first was issued because Merchlewitz continued using a grinding machine after having been told to stop doing so by his supervisor, Joe Highum.  Highum testified that after instructing Merchlewitz to stop using the grinding machine, he saw Merchlewitz at the grinder “doing the same thing” an hour later.  Highum again told Merchlewitz to stop using the machine.  Later that morning, Highum again saw Merchlewitz near the grinding machine, and he testified that two other employees reported seeing Merchlewitz use the machine at approximately noon. 

Merchlewitz argues that while he did use the grinding machine after having been told to stop, he did not understand that his supervisor had given him an order to stop using the machine.  Merchlewitz claims that he thought Highum was just giving him advice.  Highum testified, however, that he was very clear the first time he ordered Merchlewitz to stop using the grinding machine.  Further, two co-workers saw Merchlewitz using the grinding machine after Highum’s second warning.  

Merchlewitz’s second warning was issued after Derek Stoner, a supervisor at Winona Lighting, saw that someone was smoking in a closed stall in the company men’s room, in violation of the company’s no-smoking policy.  After leaving the men’s room, Stoner positioned himself where he could observe the only door to the men’s room.  Minutes later, Stoner saw Merchlewitz leave the men’s room and because he was the only person Stoner saw leaving, Stoner concluded that Merchlewitz was the smoker. 

There is reasonable support in the record for the findings of the commissioner’s representative that Merchlewitz disobeyed a supervisor’s order and smoked on the company’s premises in violation of company policy.  Applying those findings to the definition of employment misconduct in Minn. Stat. § 268.095, subd. 6(a) (2002), we conclude that Merchlewitz committed employment misconduct by disregarding the standard of behavior that Winona Lighting had the right to expect of him and by disregarding his duties and obligations to Winona Lighting.  The commissioner’s representative, therefore, did not err by concluding that Merchlewitz is ineligible for benefits.   


Merchlewitz maintains that his due-process rights were violated because the commissioner’s representative did not have a complete record on which to base his determination.  Specifically, Merchlewitz maintains that (1) the tape recorder malfunctioned, erasing portions of testimony from the June 25 hearing before the ULJ; (2) the ULJ cut off some of Merchlewitz’s questions, hurried him through others, and refused to visit the site of the smoking incident; and (3) the ULJ failed to help Merchlewitz, appearing as a pro se party, properly develop the record.     

  As support for his first claim, Merchlewitz cites Hein v. Gresen Div., Dana Corp.,538 N.W.2d 487, 488 (Minn. App. 1995) (holding that conducting proceedings without giving the discharged employee an opportunity to testify was a due-process violation).  But Hein is distinguishable.  There, an employee who arrived late for his hearing was mistakenly told to wait, while the hearing went on without him.  When the mistake was discovered, the ULJ did not allow the employee to testify.   Here, the witnesses whose testimony was affected by equipment malfunctions during the hearing were allowed to testify again, and their testimony was recorded properly. 

Merchlewitz next alleges that the ULJ repeatedly cut short witnesses’ testimony in an “unnecessary effort to hurry the proceedings.”  This claim is also without merit.  The ULJ did interrupt Merchlewitz but only when Merchlewitz needed help phrasing a question or had to be reminded that he could not testify while asking a witness a question. And while the ULJ did on one occasion  remind Merchlewitz that the proceedings had to move along because others were waiting, there is no evidence that this was anything more than an attempt by the ULJ to ensure that the proceedings were conducted in a timely and efficient manner. 

The ULJ also properly denied Merchlewitz’s request that the ULJ view the site of the smoking incident.  There is no evidence that this decision deprived Merchlewitz of his ability to present his case effectively.  A diagram of the area was in evidence, and the value of having the ULJ visit the site would have been, at best, minimal.  

Merchlewitz’s final argument is that when a party appears pro se, the ULJ and commissioner’s representative have an “obligation to recognize and interpret the parties’ claims.”  Miller v. Int’l Express Corp.,495 N.W.2d 616, 618 (Minn. App. 1993) (concluding that the commissioner’s representative erred by failing to address employee’s claim that his employer violated minimum-wage laws).  But Merchlewitz’s reliance on Miller is misplaced.  In Miller, the relator raised a colorable claim of minimum-wage violations by his employer.  Here, Merchlewitz claims that at some unspecified time in the past he was injured on the job and that when he “would inquire about a report, [he] would get written up.”  The ULJ gave Merchlewitz the opportunity to elaborate on what appears to be his claim that Winona Lighting retaliated against him, but Merchlewitz declined to do so.  While a ULJ must help a pro se party develop the record, if Merchlewitz had no further evidence to support his claim, the ULJ has no obligation to prove it for him.

Merchlewitz’s claims that his due-process rights were violated are without merit.


[1] The definition of employment misconduct was amended by 2003 Minn. Laws, 1st Spec. Sess. ch. 3, art. 2, § 13, effective August 1, 2003.