Kent E. Todd, 390 North Robert Street, St. Paul, MN 55101 (for respondent Commissioner)

Joel D. Anders, 12800 Morgan Avenue South, Burnsville, MN 55337 (pro se relator)

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

HARTEN, Judge

By writ of certiorari, relator Joel D. Anders appeals the denial of reemployment insurance benefits, arguing that the findings of the commissioner's representative were clearly erroneous and that his violations of respondent Filmtec Corporation's rules constituted mere inadvertence and negligence. We affirm.

In January 1998, a Filmtec employee was injured at work. The employee's wristwatch exacerbated his injuries. Thereafter, Filmtec instituted a safety policy prohibiting all operators from wearing rings, watches, and dangling necklaces on the job. Relator's supervisors informed him several times that he was violating the no-jewelry policy by wearing his wedding ring. In mid-February 1998, his supervisor took him aside and warned him that he could lose his job if he continued to violate the no-jewelry policy. Relator was reminded to remove his ring on seven to ten occasions.

On March 5, 1998, relator's supervisor gave him a written warning indicating that his job performance was poor and that he was consistently off-task (away from his work station).

In early April 1998, relator and some coworkers were discussing what to do in the event of a power outage. Relator suggested that operators should punch a member of the safety team in the nose so that his scream could alert the other employees to his location. Another employee took the comment as a threat and said that if anyone punched him in the nose, that person would find a screwdriver stuck between his shoulder blades. Filmtec suspended both relator and the other employee for violating the company's policy of zero tolerance for violence.

Relator's supervisor was on vacation from April 16 to 23, 1998. When she returned to work on April 27, she was informed that relator was reminded of Filmtec's safety policy on at least two occasions during that week. On April 27, 1998, the supervisor noticed that relator was wearing his wedding ring under vinyl gloves. In the supervisor's opinion, relator deliberately intended to violate the safety policy. The supervisor sent relator home pending the decision of the termination review board on relator's disregard for the safety policies, his tardiness, and his tendency to be off-task. After a meeting of Filmtec's termination management review board, Filmtec terminated relator's employment due to his continued performance problems and disregard for the safety policy.

At the hearing, relator did not deny that he sometimes wore his wedding ring while operating machinery, but he noted that other employees who wore rings had not been terminated. When warned for being off-task, relator wondered why his supervisor was "persecuting" him because he was no less productive than many other employees.

The reemployment insurance judge found relator eligible for reemployment benefits, stating that his conduct did not constitute disqualifying misconduct. On appeal, the commissioner's representative reversed, concluding that the evidence demonstrated a pattern of intentional conduct by relator in disregard of Filmtec's interests and the standard of behavior that Filmtec had a right to expect of him. The commissioner's representative disqualified relator from receiving benefits. This appeal followed.

The burden is on the employer to prove that an employee committed misconduct. Id. Minn. Stat. § 268.095, subd. 6 (1998) defines misconduct:

Misconduct is intentional conduct showing a disregard of:

(1) the employer's interest;

(2) the standards of behavior that an employer has the right to expect of the employee; or

(3) the employee's duties and obligations to the employer. Misconduct also includes negligent conduct by an employee demonstrating a substantial lack of concern for the employment. Inefficiency, inadvertence, simple unsatisfactory conduct, or poor performance as a result of inability or incapacity are not misconduct.

Here, it is undisputed that relator violated standards of behavior that an employer has the right to expect of an employee. The only contested issue is whether the violations were deliberate.

When viewed in a light most favorable to the commissioner's representative's decision, the record shows that relator was instructed to remove his wedding ring on numerous occasions during the three months that the no-jewelry policy was in place (including three times during his last week of work). Additionally, the record indicates that relator was one of only two employees to repeatedly violate the no-jewelry policy months after its institution. Relator himself testified that he did not agree with the new policy. And relator's supervisor believed that his repeated violations of the no-jewelry policy were intentional. The record reasonably supports the commissioner's representative's finding that relator intentionally committed misconduct. Even if the conduct was unintentional, the record suggests that relator's actions constituted a disregard of his employer's interests or of his duties and obligations to his employer.

We conclude that the commissioner's representative's finding of disqualification should be affirmed.

Affirmed.