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

This opinion will be unpublished and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 UNPUBLISHED OPINION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.

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 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

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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.

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 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).

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 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-

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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.

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