Mark Johnson, Relator,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-1253

Mark Johnson,
Relator,

vs.

OSD Transport,
Respondent

Department of Employment and Economic Development,
Respondent

Filed April 9, 2018
Affirmed
Worke, Judge

Department of Employment and Economic Development
File No. 137443948

Mark Johnson, Pine River, Minnesota (pro se relator)

OSD Transport, La Farge, Wisconsin (respondent employer)

Lee B. Nelson, Minnesota Department of Employment and Economic Development, St.
Paul, Minnesota (for department)

Considered and decided by Peterson, Presiding Judge; Worke, Judge; and Ross,
Judge.

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U N P U B L I S H E D O P I N I O N
WORKE, Judge
Relator argues that an unemployment-law judge (ULJ) erred by determining that he
is ineligible for unemployment benefits. We affirm.
FACTS
On February 25, 2017, relator Mark Johnson, a truck driver for respondent employer
OSD Transport, was driving so uth on a highway. Johnson called Steven Olson, his
supervisor, and told him that the road was covered with ice. Olson told Johnson to pull
over and wait for the road crews to treat the highway. At that time, Johnson was near a
truck stop. Johns on continued dri ving for another 15 -20 miles. Johnson called Olson
again, and Olson again instructed Johnson to find a safe place to stop. Johnson pulled off
the highway at the next available ramp, but after he locked the brakes, the truck slid
backward down the ramp. Johnson told Olson that he could not continue and was turning
around and returning to the terminal. Johnson believed that returning to the terminal would
be safer because the northbound lanes had already been treated. Olson told Johnson that
when he returned, he should clean out the truck, meaning that he was fired. Johnson turned
around and headed north. Another driver met Johnson, picked up his trailers, and continued
south to successfully complete delivery.
Johnson applied for but was denied unemployment benefits on the basis that he was
discharged for employment misconduct. Johnson appealed, and a hearing was held before
a ULJ. The ULJ determined that Johnson was ineligible for unemployment benefits
because he was discharged due to employment misconduct. The ULJ also concluded that

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OSD did not violate federal regulations relating to the operation of commercial motor
vehicles in hazardous weather conditions. After Johnson’s request for reconsideration was
denied, this certiorari appeal followed.
D E C I S I O N
Johnson argues that the ULJ erred in determining that he is ineligible for
unemployment benefits. Whether an employee engaged in conduct disqualifying that
person from unemployment benefits is a mixed question of fact and law. White v. Univ. of
Minn. Physicians Corp. , 875 N.W.2d 351, 354 (Minn. App. 2016). “Whether [an]
employee committed a particular act is a question of fact.” Skarhus v. Davanni’s Inc., 721
N.W.2d 340, 344 (Minn. App. 2006). “[W]e review findings of fact in the light most
favorable to the ULJ’s decision and will rely on findings that are substantially supported
by the record.” Fay v. Dep’t of Emp’t & Econ. Dev. , 860 N.W.2d 385, 387 (Minn. App.
2015) (quotation omitted) . This court defers to the ULJ’s credibility dete rminations.
McNeilly v. Dep ’t of Emp’t & Econ. Dev. , 778 N.W.2d 707, 710 (Minn. App. 2010).
Whether an act committed by an employee constitutes employment misconduct is a
question of law that we review de novo. Skarhus, 721 N.W.2d at 344.
An applicant who was discharged from employment is ineligible for unemployment
benefits if “the applicant was discharged because of employment misconduct.” Minn. Stat.
§ 268.095, subd. 4(1) (2016). Employment misconduct is “any intentional, negligent, or
indifferent conduct, on the job or off the job that displays . . . (1) a serious violation of the
standards of behavior the employer has the right to reasonably expect of the employee; or
(2) a substantial lack of concern for the employment.” Id., subd. 6(a) (2016).

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The ULJ concluded that Johnson’s refusal to follow Olson’s directions was
insubordinate and that Johnson seriously violated his employer’s reasonable expectations
and showed a substantial lack of concern for his employment. Olson testified that he
instructed Johnson to stop when he was near a truck stop but that Johnson disregarded that
instruction. Admittedly, Johnson and Olson offered contradictory testimony as to the
number and content of their conversations. Olson testified that John son called him twice,
and that he instructed Johnson to stop on both occasions. Johnson testified that he called
Olson three times, and that Olson instructed him to only reduce his speed during the first
call. Johnson testified that Olson told him to pul l over and wait for the roads to clear on
the second and third calls, but that he would have needed to continue driving six more
miles in hazardous conditions to reach a truck stop.
The ULJ considered these differing accounts and concluded that Olson’s testimony
was more credible because it was straightforward, direct, described the more likely series
of events, and was detailed and specific. The ULJ determined that Johnson’s testimo ny
was less credible because it described the less likely series of events and was “somewhat
self-serving.” We defer to the ULJ’s credibility determinations. McNeilly, 778 N.W.2d at
710. Because the record contains testimony that Johnson was insubordinate and continued
driving in hazardous conditions contrary to the instructions of his supervisor, we conclude
that the ULJ’s findings to that effect are supported by substantial evidence. Furthermore,
we agree with the ULJ that Johnson’s conduct seriously violated OSD’s reasonable
expectations and demonstrated a substantial lack of concern for his employment.

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Johnson argues that he was not insubordinate because his actions were protected by
federal regulations. Federal regulations mandate that “[e]xtreme c aution in the operation
of a commercial motor vehicle shall be exercised when hazardous conditions, such as those
caused by snow [or] ice . . . adversely affect visibility or traction.” 49 C.F.R. § 392.14
(2016). “If conditions become sufficiently danger ous, the operation of the commercial
motor vehicle shall be discontinued and shall not be resumed until the commercial motor
vehicle can be safely operated.” Id. If compliance with that rule “increases hazard to
passengers, the commercial motor vehicle m ay be operated to the nearest point at which
the safety of passengers is assured.” Id.
Johnson claims that, pursuant to this federal regulation, he was obligated and
entitled to turn around and that this decision cannot constitute employment misconduct.
However, the federal regulation states that operation of the commercial motor vehicle must
be discontinued if the conditions are sufficiently dangerous, and Olson testified that he
instructed Johnson to stop the truck. See id. Johnson disregarded Olson’s instruction and
continued driving for 15 -20 miles. We conclude that Olson’s instruction did not violate
the federal regulation and that Johnson’s decision to continue driving in hazardous
conditions was not protected by federal regulations.
Because the r ecord contains substantial evidence that Johnson was insubordinate
and violated his employer’s reasonable expectations, we conclude that the ULJ did not err
by concluding that Johnson is not entitled to unemployment benefits.
Affirmed.