Murray Gushulak, Relator v. Boise Paper Holdings, LLC, Department of Employment and Economic Development ( 2015 )

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A14-0651
Murray Gushulak,
Relator,
vs.
Boise Paper Holdings, LLC,
Respondent,
Department of Employment and Economic Development,
Respondent.
Filed January 20, 2015
Affirmed
Ross, Judge
Department of Employment and Economic Development
File No. 31534903-5
Molly J. French, Shermoen & Jaksa, PLLP, International Falls, Minnesota (for relator)
Boise Paper Holdings, LLC, Salt Lake City, Utah (respondent employer)
Lee B. Nelson, St. Paul, Minnesota (for respondent department)
Considered and decided by Ross, Presiding Judge; Schellhas, Judge; and Smith,
Judge.
UNPUBLISHED OPINION
ROSS, Judge
Murray Gushulak twice attempted to take a shortcut walking through an area near
his employer’s crane operation that was cordoned off by red tape. He knew his
encroachment violated company policy. His employer discharged him, and an
unemployment law judge determined that he is ineligible for benefits. Because the
unemployment law judge’s findings are supported by substantial evidence and because
Gushulak’s willful disregard of company policy constitutes employment misconduct, we
affirm.
FACTS
Boise Paper Holdings employed Murray Gushulak as a full-time millwright until
July 2013 when the company discharged him for violating its safety policy. Boise
determined that Gushulak crossed a red-tape barrier around an operating crane twice in
one day, once on the crane’s left and later on its right.
Boise concluded that Gushulak entered the restricted area, based on a manager’s
and a crane operator’s observations. The manager first confronted Gushulak after
watching him duck under the red tape to the right of the crane. Gushulak knew that
crossing the tape violates Boise’s safety policy. He had no permission to cross the tape.
He knew that the policy gave him no discretion to cross regardless of whether he
perceived danger. Gushulak had to make several trips between his worksite and various
toolboxes, and the shortcut saved him time.
2
After the manager saw Gushulak cross the tape on the right side, a supervisor
questioned crane operator Wayne Smart and learned that Gushulak had also earlier
crossed on the left side. Smart had been using the crane to lift a 2,000-pound machine to
the building’s second floor. Frequent repositioning of the same machine involved rotating
the crane’s boom over a walkway on the crane’s left. Smart or a coworker had draped the
red tape across the left-side walkway during those efforts. At one point during a lift,
Smart saw Gushulak inside the restricted area and yelled at him. Gushulak had put
himself in range of a fatal accident.
Boise discharged Gushulak, and Gushulak sought unemployment benefits. The
department of employment and economic development initially decided that Gushulak
was eligible for unemployment benefits. On Boise’s appeal, an unemployment law judge
(ULJ) conducted a hearing to determine whether Gushulak had been discharged for
employment misconduct.
Gushulak testified at his unemployment benefits hearing. He admitted to entering
the area but only on the crane’s right. His testimony was inconsistent in denying the first
incident, on the crane’s left side. He initially testified that Smart was lying, but he later
claimed that the red tape on the crane’s left hung very close to the crane, allowing a
person to pass along the walkway freely. He first spoke of two tape-lines, and then he
said there were three. He finally changed his testimony back to two. He claimed to know
the tape’s position, but he equivocated about whether he saw it. He said he did not recall
entering the walkway on the left side of the crane, but then he said he “could have been
there once.” He also stated that the tape was present the entire day, but then he said that
3
tape was not always present. Another coworker testified that he never saw tape blocking
the leftmost walkway, but he did not know how the tape was replaced over the walkway
for each lift. Gushulak questioned Smart’s credibility, testifying that Smart disliked him
and wanted him fired.
Boise’s written policy warns that discharge may result from a gross violation of its
safety requirements. The company decided to fire Gushulak after it learned of the second
incident, but a manager testified that even one violation of the red-tape policy merits
termination. Boise had discharged another employee for a similar violation two years
earlier. The company decided that Gushulak’s July 2013 actions constituted his second
offense. In January of that same year, Gushulak had ignored orange pylons and parked
his car in an area designated for foot traffic only.
The ULJ found that Boise’s safety policy prohibited employees from crossing red-
tape barriers without permission and that Gushulak twice intentionally entered the
restricted area near a crane without permission—once during a lift. The decision requires
Gushulak to repay $8,358 in benefits that had been distributed to him in error. Gushulak
requested reconsideration, and the ULJ affirmed her decision. Gushulak appeals by
certiorari.
DECISION
Gushulak makes two arguments challenging the ULJ’s decision that he engaged in
employment misconduct. He argues that insufficient evidence supports the finding that he
crossed red tape on the left side of the crane. He also argues that crossing the red tape
does not constitute employment misconduct. Neither argument persuades us to reverse.
4
I
Gushulak rests his challenge to the ULJ’s findings primarily on a credibility
contest. He argues that insufficient evidence supports the finding that he crossed tape to
the left of the crane because Smart’s testimony was unreliable. We review a ULJ’s
factual findings to determine if they are supported by substantial evidence. Minn. Stat.
§ 268.105, subd. 7(d)(5) (2012). We evaluate evidence in the light most favorable to the
decision. Van de Werken v. Bell & Howell, LLC, 834 N.W.2d 220, 221 (Minn. App.
2013). Gushulak supports his credibility-based factual challenge with his contention that
Smart did not report the incident, did not personally position the tape, and did not witness
Gushulak crossing the tape. The argument fails under our standard of review.
We generally defer to a ULJ’s witness-credibility assessments. Jenson v. Dep’t of
Econ. Sec., 617 N.W.2d 627, 631 (Minn. App. 2000), review denied (Minn. Dec. 20,
2000). And the evidence supports the ULJ’s finding that Smart was credible. In contrast
to Smart’s plain testimony that he confirmed that red tape was blocking the area to the left of
the crane before each lift and that he saw Gushulak within that restricted area during a lift,
Gushulak’s testimony was inconsistent. The only other witness’s account supports Smart’s
testimony that the tape was down only between the lifts. The ULJ’s finding that Gushulak
crossed the red tape twice rests on sufficient evidence.
II
We reject Gushulak’s argument that his conduct was not employment misconduct.
We review de novo a ULJ’s determination that a particular act constitutes employment
misconduct. Stagg v. Vintage Place Inc., 796 N.W.2d 312, 315 (Minn. 2011).
5
Crossing the red tape constituted employment misconduct. Misconduct includes
“intentional, negligent, or indifferent conduct . . . that displays clearly . . . a serious
violation of the standards of behavior the employer has the right to reasonably expect of
the employee.” Minn. Stat. § 268.095, subd. 6(a) (2012). Gushulak is correct that “simple
unsatisfactory conduct” and “good faith errors in judgment” are not misconduct. See
Minn. Stat. § 268.095, subd. 6(b)(3), (6). But we will hold that employment misconduct
occurred if an employee refused to follow reasonable employer policies. Schmidgall v.
FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002). And an employer’s policy to
maintain a safe workplace is clearly reasonable. Id. at 807. Boise’s policy plainly
prohibits workers from crossing red tape. This literally bright-line restriction protects
employees who might not notice or fully appreciate hazards. Gushulak acknowledges that
he intentionally crossed the tape, but according to him, only once. Even a single violation
would support the determination, id. at 806, and, in any event, the ULJ found that
Gushulak crossed the barrier twice on July 16 and that he violated a similar safety policy
earlier in the year.
We also reject Gushulak’s argument that his conduct was simply unsatisfactory
performance rather than misconduct. See Minn. Stat. § 268.095, subd. 6(b)(3).
Gushulak’s conduct does not indicate that he merely failed to meet Boise’s performance
expectations after trying; it indicates that he deliberately violated Boise’s precautions so
he could save time.
We similarly reject Gushulak’s argument that his conduct represents a mere good-
faith error in judgment. See id., subd. 6(b)(6). His argument for a good-faith error-in-
6
judgment holding requires that we interpret the policy to leave room for an employee to
exercise judgment about whether to follow the policy. Id. But the policy to not cross the
red tape without permission is unqualified, affording the employee no discretion.
It might be, as Gushulak maintains, that Boise could have treated his violation as
less serious and chosen to warn him rather than discharge him. He points out that his
manager had at first assured him that he would not lose his job. But we are not asked to
decide whether, as a matter of business judgment, the employer could or should have
been more lenient. We decide only whether, as a matter of law, an act constitutes
employment misconduct. Even an employer’s progressive discipline policy has no
bearing on that legal question. Stagg, 796 N.W.2d at 316. One manager’s tempered and
partially informed initial response to Gushulak’s misconduct does not influence our legal
decision.
Gushulak contends finally that we should reverse so that he may be awarded
benefits in light of the statute’s remedial purpose and our obligation to construe narrowly
any provisions denying eligibility. See Minn. Stat. § 268.031, subd. 2 (2012). Our
statutory construction of an unclear provision is not called for. Discharge for employment
misconduct makes an applicant ineligible for unemployment benefits. Minn. Stat.
§ 268.095, subd. 4 (2012). The statute compels us to affirm.
Affirmed.
7