This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-96-1143

Marion Gilchrist,

Relator,

vs.

Applied Coating Technology, Inc.,

Respondent,

Commissioner of Economic Security,

Respondent.

Filed February 4, 1997

Affirmed

Harten, Judge

Department of Economic Security

File No. 2178-UC-96

Marion Gilchrist, 1904 Jackson N.E., Minneapolis, MN 55418 (Relator Pro Se)

Kent E. Todd, Attorney at Law, 390 N. Robert St., St. Paul, MN 55101 (for Respondent Commissioner)

Considered and decided by Harten, Presiding Judge, Crippen, Judge, and Kalitowski, Judge.

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

HARTEN, Judge

Relator Marion Gilchrist challenges the decision of a Department of Economic Security Commissioner's representative denying him reemployment insurance benefits. Because Gilchrist's actions constituted misconduct, we affirm.

FACTS

From April 1995 through January 1996, Marion Gilchrist worked for respondent Applied Coating Technology, Inc. as a full-time parts stripper earning $7.75 per hour. He worked as an assistant to the lead person in the parts stripping area. Gilchrist developed a skin rash and agreed with his supervisor, Jack Gustafson, that he would work in another area until his skin rash subsided. For approximately two weeks, he worked in an area other than parts stripping.

On January 30, 1996, Gilchrist returned to the parts stripping area. During his two week hiatus, however, the lead person had been promoted and Gustafson assigned Gilchrist to the vacant lead person position. Believing that his predecessor had earned $2.00 per hour more than he was offered, Gilchrist refused to work without a wage increase. Gustafson informed Gilchrist that he would be evaluated for a two-month probationary period in the new position before he could be considered for any wage increase. Gilchrist refused to work without an additional $2.00 per hour. Gustafson told Gilchrist that if he did not work in the parts stripping area, he could punch out. Insisting that he was not quitting, Gilchrist punched out. The next day, Gilchrist reported for work, but was told that he had walked out. Gilchrist denied quitting and demanded a termination paper, which Gustafson provided.

Gilchrist filed a claim for reemployment insurance benefits with the Minnesota Department of Economic Security. The department's adjudicator determined that Gilchrist was disqualified from receiving benefits because of misconduct. On appeal, a reemployment insurance judge agreed, finding that Gilchrist was discharged for misconduct. Subsequently, a Commissioner's representative concluded that Gilchrist's refusal to work without a raise constituted misconduct. On certiorari appeal to this court, Gilchrist argues that the Commissioner's representative erred in concluding that his actions constituted misconduct.

D E C I S I O N

Whether an employee committed misconduct is a mixed question of fact and law. Colburn v. Pine Portage Madden Bros., 346 N.W.2d 159, 161 (Minn. 1984). We review the findings of the Commissioner's representative, not those of the reemployment insurance judge, even when those findings involve witness credibility. Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995). The Commissioner's representative's factual findings should be viewed in the light most favorable to the decision, and should not be overturned if there is evidence in the record that reasonably tends to sustain those findings. Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989). The ultimate issue of whether behavior constitutes misconduct, however, is a question of law on which this court is "free to exercise its independent judgment." Id.

Gilchrist's own testimony at the reemployment compensation hearing was largely consistent with the Commissioner's representative's findings of fact. Gilchrist contends, however, that the Commissioner's representative erred in finding that he missed two weeks of work because of his skin rash. Our review of the record reveals no evidence to support this finding. See id. (Commissioner's representative's findings should not be overturned if there is evidence in the record that reasonably tends to sustain those findings). Apparently, the two-week period Gilchrist temporarily worked in another area was mistakenly designated as missed work. This unsupported finding is immaterial, however, because it did not provide the basis for the Commissioner's representative's conclusion that Gilchrist's refusal to work constituted misconduct.

An individual who is discharged for misconduct is disqualified from receiving reemployment insurance benefits. Minn. Stat. § 268.09, subd. 1(b) (1996). The employer bears the burden of proving a discharge to be for misconduct. Lumpkin v. North Cent. Airlines, 296 Minn. 456, 459-60, 209 N.W.2d 397, 400 (1973). An employee's refusal to perform an employer's reasonable request that is not unduly burdensome constitutes misconduct, although what is "reasonable" depends on the circumstances of each case. See McGowan v. Executive Express Transp. Enter., 420 N.W.2d 592, 596 (Minn. 1988) (delivery driver's refusal to run errand for employer, where employer could not reasonably leave office, was misconduct); Bibeau v. Resistance Tech., Inc., 411 N.W.2d 29, 31-32 (Minn. App. 1987) (employee who refused to perform quality checks after being instructed to do so engaged in misconduct); Sandstrom v. Douglas Mach. Corp., 372 N.W.2d 89, 92 (Minn. App. 1985) (technical writer's refusal to sign confidentiality agreement that would not have impaired employee's ability to work elsewhere was misconduct).

Here, Gilchrist testified that he was familiar with the lead person position and could do the work, but was unwilling to take the position without an immediate raise. There is evidence that the previous lead person, who earned $9.70 per hour, held the position for approximately two years and had more experience than Gilchrist. We conclude that the assignment of Gilchrist to the lead person position at his same wage was reasonable under the circumstances and did not impose an undue burden on him. His refusal to take the position, albeit without a raise during the two-month probationary period, constituted misconduct under Minn. Stat. § 268.09, subd. 1(b).

Affirmed.