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Benjamin C. Ginther v. Boise Cascade Corporation

December 23, 2010


Appeal from the Industrial Commission of the State of Idaho.

The opinion of the court was delivered by: Horton, Justice.

2010 Opinion No. 143

Stephen Kenyon, Clerk

The decision of the Industrial Commission is affirmed.

This appeal concerns Boise, Inc.'s (―Boise‖)*fn1 discharge of Benjamin Ginther and the subsequent denial of Ginther's claim for unemployment insurance benefits at all stages below. Ginther argues that his firing was not due to misconduct in connection with his employment. For the reasons set forth below, we affirm.


Ginther went to work for Boise as a flexo operator on August 24, 2006.*fn2 Ginther's responsibilities included performing pre-start and set-up procedures and quality checks, as well as in-process quality checks to ensure the flexo was printing properly. Part of these checks and procedures included printing a single box, called a set-up box, before beginning a print run. This was done to verify that the flexo's set-up conformed to the customer's specifications before printing the complete order. Some orders consisted of several thousand boxes, necessitating a pre-start check to prevent the operators from accidentally producing large batches of non-conforming boxes.

During his employment with Boise, Ginther's supervisors initiated several disciplinary actions against him for failing to adhere to established quality assurance procedures. These disciplinary actions culminated in a document referred to by the parties as the ―last chance agreement.‖ This document, signed by the parties on August 18, 2008, addressed an incident wherein Ginther printed several thousand non-conforming units. According to the agreement, Ginther could have avoided the problem if he had followed Boise's quality control procedures. The agreement specified that Ginther would, as a condition of his continued employment, ―follow all rules, policies and procedures,‖ and that he understood any failure to do so would ―result in disciplinary action up to and including termination of employment.‖ This was to be Ginther's ―one last opportunity to improve‖ his performance, as Boise had previously disciplined Ginther on two occasions for ―quality/performance issues.‖

On October 9, 2008, Ginther contacted his supervisor to report a print quality problem, which he had since remedied. As Ginther's supervisor attempted to isolate the defective boxes, he noticed that all the boxes Ginther and his assistant had produced up to that point shared the same printing defect. The supervisor asked to see Ginther's set-up box in order to verify that the flexo had been set properly prior to beginning the print run. Ginther produced a defect-free setup box. The supervisor compared the defective boxes with a box printed by the previous shift, and noticed the same defect on the boxes printed by the earlier shift. The supervisor then concluded that Ginther had run the set-up box after correcting the problem, and was attempting to conceal his failure to conduct a pre-run quality assurance check as required by Boise policy. The supervisor asked Ginther's assistant if this was so, and the assistant confirmed the supervisor's suspicions.

Boise terminated Ginther on October 14, 2008, for failing to abide by the terms of the last chance agreement and for dishonesty in giving the supervisor the defect-free set-up box instead of admitting that he had not run a set-up box prior to running the order.

The Idaho Department of Labor (―Department‖) denied Ginther's claim for unemployment compensation benefits, holding that Ginther was ultimately responsible for ensuring that the quality check was performed, he had failed to do so, and this failure constituted misconduct in connection with Ginther's employment as Ginther's conduct fell below a standard of behavior Boise had the right to expect.

Ginther appealed the Department's decision to the Department's Appeals Bureau, arguing that Boise policy placed the responsibility for conducting the quality assurance checks on both the operator and the assistant, and that Boise therefore should not have held him solely accountable for the error. The Appeals Bureau scheduled a telephonic hearing, and served Ginther with a notice of hearing via U.S. mail on December 8, 2008.

Several documents were admitted at the outset of the hearing, referred to in the transcript as Exhibits 1 through 6.*fn3 Although Ginther should have been provided copies of the proposed exhibits along with the notice of telephonic hearing, the certificate of service only reflects that Ginther was served with the notice of hearing. Ginther disputes ever having received copies of the exhibits. At the hearing, when the appeals examiner indicated that she was admitting Exhibits 1 through 6, Ginther did not object. The only indication from Ginther during the hearing that he did not have the exhibits was a statement he made while questioning a witness that he could not ―seem to find that paper. . . .‖*fn4

The appeals examiner found that Boise discharged Ginther ―for misconduct in connection with employment as defined by § 72-1366(5) of the Idaho Security Law‖ and that Boise's unemployment ...

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