1 IN THE SUPREME COURT OF THE STATE OF IDAHO

Docket No. 36126
BENJAMIN C. GINTHER,

Claimant

- Appellant,

v. BOISE CASCADE CORPORATION, Employer, and IDAHO DEPARTMENT OF LABOR,
Respondents. ) ) ) ) ) ) ) ) ) ) ) Boise, De cember 2010 Term

2010 Opinion No. 143

Filed: December 23, 2010
Stephen Kenyon, Clerk

Appeal from the Industrial Commission of the State of Idaho.

The decision of the Industrial Commission is affirmed

. Benjamin Ginther, St. Helens, Oregon, appella nt pro se.

John B. Dallum and Robert R. Ball, Boise, for respondent Boise Cascade Corporation. John B. Dallum argued.
Hon. Lawrence G. Wasden, Attorney General, Boise, for respondent Idaho Department of Labor. Tracey Rolfsen argued.

_______________________________________________ HORTON, Justice. This appeal concerns Boise, Inc.‘s (―Boise‖) 1 discharge of Benjamin Ginther and the subsequent denial of Ginther‘s claim for unemployment insurance benefits at all stages below

. Gint her argues that his firing was not due to misconduct in connection with his employment. For the reasons set forth below, we a f firm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Ginther went to work for Boise as a f l exo operator on August 24, 2006. 2 Gi n ther‘s

respo n sibilities included performing pre

- start and set

- up proc e dures and quality checks, as well
as in

- process quality checks to e n sure the flexo was printing properly. Part of these checks and

1 Ginther inaccurately named ―Boise Cascade Corporation‖ as the employer in this case. Ginther was employed by Boise Paper Holdings, L.L.C., a wholly

- owned subsidiary of Boise, Inc. at the time of his discharge. 2 ―F l exo‖ refers to a flexographic printing press. Flexography is a variant of lette r press printing and a popular method of applying print to cardboard boxes. Han d book of Print Media 29

– 30, 145

– 50 (Helmut Kipphan ed., 2001).2

procedures included printing a single box, called a set

- up box, bef ore beginning a print run. This
was done to verify that the flexo‘s set

- up co n formed to the customer‘s specifications before printing the complete order. Some orders consisted of several thousand boxes, necess i tating a
pre

- start check to prevent the oper ators from accidentally producing large batches of non

confor m ing boxes. During his employment with Boise, Ginther‘s supervisors initiated several disc i plinary actions against him for failing to adhere to established quality assurance procedures. These
dis ciplinary actions culm i nated in a document referred to by the parties as the ― last chance

agre e ment

. ‖ T his document, signed by the parties on August 18, 2008, addressed an incident
wherein Ginther print ed several thousand non

- conforming units. According to the agre e ment, Ginther could have avoided the problem if he had followed Boise‘s quality control procedures. The agreement specified that Ginther would, as a co n dition of his continued employment, ―follow all rules, policies and proc e dures,‖ 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 is o late the defective boxes,
he noticed that all the boxes Ginthe r and his assistant had produced up to that point shared the same print ing defect. The supe r visor 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 s et

up 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

co n cluded that Ginther had run the set

- up box after correcting the problem, and was a t tempting

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 susp i cions.
Boise terminate d Ginther on October 14, 2008
, for failing to abide by the terms of the last chance agreement and for disho n esty in giving the supervisor the defect

- free set

- up box instead
of admi t ting that he had not run a set

- up box prior to running the order.3

The Idaho Department of Labor (―Department‖) denied Ginther‘s claim for unemployment compensation benefits, holding that Ginther was ultimately r e sponsible for ensuring that the quality check was performed, he had failed to do so
, and this failure constituted
misco n duct in connection with Ginther‘s employment as Ginther‘s conduct fell below a standard of behavior Boise had the right to e x pect. Ginther appealed the Department‘s decision to the Department‘ s A p peals Bureau, arguing that Boise policy placed the responsi bility for co n ducting the quality assurance checks on both the operator and the assistant, and that Boise therefore should not have held him solely

a c countable for the error. The Appeals Bureau scheduled a telephonic hearing, and served
Ginther with a not ice of hearing via U.S. mail on Dece m ber 8, 2008.
Several documents were admitted at the outset of the hea r ing, referred to in the transcript as Exhibits 1 through 6. 3 Although Ginther should have been provided copies of the proposed

e x hibits 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 t he appeals examiner indicated that she was a dmitting 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 p a per.

. . .‖ 4 The appeal s 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 unemplo y ment account was not charg e able for experience rating purposes.

3 Our review of the exhibits reveals that Ginther would have been familiar with the contents of most of these documents. Exhibit 1 was the notice of telephonic hearing before the Appeals Bureau in which Gi nther participated. Exhibit 2 described the procedures governing the appeals hearing. Exhibit 4 was the initial notice to Ginther from the Department informing him that his application for unemployment insurance benefits had been denied. Exhibit 5 was G inther‘s request for an appeals hearing. Exhibit 6 detailed Ginther‘s wage history while employed by Boise. Exhibit 3 is actually several documents, evidently supplied by Boise. The first page of the exhibit is a copy of an email sent to Ginther no tifying him of the reasons for his termination. The second and third pages are written statements from Ginther‘s assistant and supervisor describing the events of October 9, 2008. The fourth page is a copy of the ―last chance agreement.‖ The fifth page relates to an earlier incident in which Ginther was disciplined as a result of a defective print run. The sixth through eleventh pages outline the job functions of a flexo operator. Thus, it appears that the only documents that may have been new to Ginth er were the statements of his supervisor and assistant. Both testified at the appeals hearing and were cross

- examined by Ginther. 4 The Commission indicates in its decision that the audio recording of the hearing reflects that the appeals examiner ―w ent through the exhibits with the parties‖ and that Ginther ― did not object or raise a concern that he was missing any of the exhibits.‖ T he audio recording is not in the record before this Court and the tra n script of the hearing does not reflect this dis cussion

.4

Ginther appealed the appeals examiner‘s decision to the Idaho Industrial Commission (―Commission‖) , arguing that he never received copies of the e x hibits the examiner admitted into the record, and thus he had not had a fair hearing. He wrote in his appeal that he noticed the
documents were mis s ing prior to the conclusion of the hearing, but that he did not bring it to anyone‘s attention because the hearing was almost over. He also reiterated his argument that both he and his assistant were responsible for the quality assuran ce procedures, and thus he
should not be deprived of unemployment compensation ben e fits because of the error. The Commission denied Ginther‘s claim, finding both that Ginther received a fair hearing
and that Boise had di s charged Ginther for misconduct and thus he was not eligible for unemployment compensation benefits. Ginther timely a p peal ed from this decision

. II. STANDARD OF REVIEW When reviewing a decision by the Commission, this Court is generally limited to

que s tions of law. Idaho Co n st. Art. V, § 9 . I n reviewing factual decisions by the Commission, this Court‘s review is limited to determining whether the Commission‘s findings are supported by substantial competent evidence. I.C. § 72

- 73 2 (1)

. The Court does not reweigh evidence or

co n sider whether i t would have reached a different conclusion based upon the evidence presented

. Uhl v. Ballard Med. Prod., Inc. , 138 Idaho 653, 657, 67 P.3d 1265, 1269 (2003). Whether the government has violated a citizen‘s right to due process is a question of law,
which this court freely r e views. Neighbors for a Healthy Gold Fork v. Valley Cnty. , 145 Idaho 121, 127, 176 P.3d 126, 132 (2007) (citing Cowan v. Bd. of Comm’rs of Fremont Cnty. , 143 Idaho 501, 510, 148 P.3d 1247, 1256 (2006)). The Commission‘s determination wh ether an employee‘s b e havior constituted
misco n duct is a factual determination that the Court will uphold if the determination is supported by substantial and competent evidence. Folks v. Mo s cow Sch. Dist. No. 281 , 129 Idaho 833, 836, 933 P.2d 642, 645 (1 997) (ci t ing Welch v. Cowles Publ’g Co. , 127 Idaho 361, 364, 900 P.2d 1372, 1375 (1995)). This Court has defined ―substantial and competent evidence‖ as ―such relevant evidence as a reasonable mind might accept as adequate to su p port a conclusion.‖ Folks
, 129 Idaho at 836, 933 P.2d at 645 (quoting Welch , 127 Idaho at 365, 900 P.2d at 1376)

. While conflicting evidence may exist in the record, the Court does not di s turb the Commission‘s factual findings unless they are clearly e r roneous. McAlpin v. Wood Riv er Med. Ctr. , 129 Idaho 1, 5, 921 Idaho 178, 182 (1996) (citing Ross v. Tupperware Mfg. Co./Premark , 122 Idaho 641, 643, 8375

P.2d 316, 318 (1992)). The Court will view a ll facts and inferences in the light most favo r able to the party who prevailed before the Commission. Higgins v. Larry Miller S u baru

– Mitsubishi , 145 Idaho 1, 4, 175 P.3d 163, 166 (2007) (citing Neihart v. Unive r sal Joint Auto Parts, Inc. , 141 Idaho 801, 802

– 03, 118 P.3d 133, 134

– 35 (2005)).
III. ANALYSIS
A. Ginther has failed to pr operly advanc e his claim of error regarding the admission of the exhibits. In his initial briefing before this Court, the sole issue that Ginther identified and argued is
his claim that the Commission erred in its determination that he was discharged for misconduct
in connection with his employment. Ginther did, however, refer to the failure to provide him a copy of the exhibits in his statement of facts. In its responsive brief, the Department characterized the failure to provide Ginther with copies of proposed exhi bits as a claimed procedural due process viol a tion. The Department noted that Ginther had not cited ―any propositions of law or legal authority to support his contention‖ and argued that this Court
should not consider the issue.
W hen the appeals examine r informed the parties that she was admitting the exhibits,
Ginther failed to o b

ject. He thus waived any right to raise the issue of the admission of the exhibits on appeal. ―A litigant may not remain silent as to claimed error during a prior proceeding a nd later raise his obje c tions for the first time on appeal.‖ Hoppe v. McDonald , 103 Idaho 33, 35, 644 P.2d 355
, 357 ( 1982 )

. Further, although the Department may well have accurately discerned a potential claim of a procedural due process violation, Ginthe r did not advance this claim as an issue on appeal nor did he support the claim with legal argument or citation to authority. ―We will not consider issues cited on appeal that are not supported by propositions of law, authority, or argument.‖ Callaghan v. Callaghan, 142 Idaho 185, 190, 125 P.3d 1061, 1066 (2005)

. For these reasons, we will not addre ss the effect of the failure to provide copies of proposed exhibits

. B. The Commission’s finding that Boise discharged Gint her for misconduct in connection with his employment was supported by substantial competent evidence. Ginther argues that the Com mission erred in its determination that he was discharged for
misconduct in connection with his employment. A discharged employee is not entitled to unemployment benefits if he is ―discharged for misconduct in connection with his e m ployment.‖
I.C. § 72

- 1 366(5). Both the Idaho Administrative Code and this Court d e fine misconduct as ―(1)6

a willful, intentional disregard of the employer‘s interest; (2) a deliberate violation of the employer‘s rules; or (3) a disregard of standards of b e havior which the empl oyer has a right to expect of its employees.‖ Chapman v. NYK Line N.A., Inc. , 147 Idaho 178, 182, 207 P.3d 154,
1 5 8 (2009) ( quoting Quinn v. J.R. Si m plot Co. , 131 Idaho 318, 321, 955 P.2d 1097 , 1100 ( 1998 )); IDAPA 09.01.30.275.02 (20 10 )

. The Idaho Admini strative Code provides that ―[t]he
test for mi s conduct in  ̳standard of behavior cases‘ is

. . . (i) [w]hether the clai m ant‘s conduct fell below the standard of behavior expected by the employer; and (ii) [w]hether the employer‘s expectation was objectively reaso n able in the particular case.‖ IDAPA 09.01.30.275.02 .c (2010). ―There is no requirement that the employee‘s disregard of the employer‘s expected standard of behavior must have been subjectively willful, intentional, or delibe r ate.‖ Welch v.
Cowles P ub’g Co. , 127 Idaho 361, 364, 900 P.2d 1372, 1375 (1995) ( citing Matthews v. Bucyrus

– Erie Co. , 101 Idaho 657, 65 9, 619 P.2d 1110, 1112 (1980)). Whether the di s charge for
misconduct is work

- related i s a factual determination. Chapman , 147 Idaho at 182, 20 7 P.3d at 158 ( citing Beaty v. City of Idaho Falls , 110 Idaho 891, 892, 719 P.2d 1151, 1152 (1986)). The burden of proving misconduct is on the e m ployer. Id. ; IDAPA 09.01.30.275.01 (2010). The test first requires the fact finder to answer two questions: (1) whether the employer had a standard of behavior it expected of the c laimant, and (2) whether the c laimant‘s behavior
fell below that sta n dard. According to the evidence admitted before the appeals examiner, Boise

e x pected and required Ginther t o perfo rm the set

- up and quality assurance checks before beginning a print run. T hese checks were in place to verify the flexo was operating and configured correctly and to prevent operators from printing non

- confor m ing units. Testimony at the hearing establish ed that Ginther was a qualified operator of this machine. Boise introduced evidence indicating that Ginther and/or his assistant would have discovered the O c tober 9 , 2008, error prior to initiating the run if one of them had completed the required checks. Ginther‘s
assistant te s tified that Ginther did not run a set

- up box until after they discovered the error. Although Ginther provided conflicting testimony, there was substantial competent ev i dence supporting the Commission ‘s determination that Ginther di d not perform

— or ensure that his assistant performed

— the set

- up and quality assu r ance checks prior to initiating the print run in question. Thus , the Commission r easonably co n clude d Ginther ‘s conduct fell below the standard of behavior Boise expected of Gi nther.7

The re was substantial competent evidence supporting the Commission‘s conclusion that Boise‘s expectation s were re a sonable. Boise‘s internal operating criteria for flexo operators required the oper a tor to perform all pre

- start quality and in

- process quality checks

. Ginther had been an operator for ―a while‖ and unde r stood the process and procedures he was supposed to
follow. Boise had previously disciplined Ginther on at least two occasions for his failure to
follow quality assu r ance procedures. T he last chance agreement, which Ginther signed, explicitly admonis h ed Ginther to perform his quality checks and that failure to do so could result
in his termination. There was testimony that one of the previous incidents for which Ginther had been discip lined had cost Boise $5,000. Ginther argues that it was not reasonable for Boise to expect him to pe r form the quality
checks himself because he alone did not bear the r e sponsibility for performing them. Rather,
both he and his assistant colle c tively bor e that responsibility. Based upon evidence presented at the hearing, the Commission found that Ginther was ultimately responsible for ensuring that the quality checks were performed. Based upon the testimony provided by Ginther‘s supervisor, we
find that there was substantial competent evidence supporting this finding. Ginther also argues that Boise‘s disciplinary procedures were unreasonable because Boise never should have placed him on the last chance agreement in the first place. Ginther
asserts that he was not at fault in one of the incidents that preceded the last chance agreement

. Therefore, Ginther argues that it was not reaso n able for Boise to place him on a last chance agreement and subsequently fire him for vi o lating its terms. Ginther‘s argu ment is misplaced. The question before the Commission and this Court is not whether Boise‘s decision to terminate Ginther was wise or just; rather, the question for resolution is whether Boise terminated him for misconduct in connection with his employmen t. In the context of these proceedings, the last chance agreement is relevant only to the extent that it unambiguously communicated to Ginther that Boise expected him to comply with quality control procedures. Ginther argues that this Court should rule that ―simple performance errors on an over

worked and under

- trained produ c tion line worker do not qualify as misconduct under the unemployment benefits statute.‖ We are unable to do so. To adopt this request, we would have
to make a fa c tual determinatio n that the conditions of Ginther ‘s employment were such that Boise‘s expectation of compliance with its quality control procedures was unreasonable. In our view, this factual question is governed by the second prong of the misco n duct analysis under8

IDAPA 09.01.30.275.02 .c. T he Commission‘s factual d e terminations reflect its consideration of the evidence on this point. The Commission considered Ginther‘s testimony that Boise had
reduced the crew on his machine down from three people to two in the precedin g ye ar, that the flexo was not operating properly on O c tober 9, that Boise had inadequately trained him to operate that partic u lar machine, and that the employees at Boise were under pressure to meet production qu o tas. Despite this testimony, the Commissi on did not find Boise‘s expect a tion that Ginther would perform his quality assurance checks under such conditions to be objectively
unreasonable. As the Commission addressed the factual question Ginther now wishes this Court

to answer differently, we are not free to substitute our view of the evidence for that of the
Commission. Because substantial and competent evidence supports the Commission‘s factual findings
, we affirm the decision to deny Ginther‘s claim for unemployment insurance benefits.
IV. CONCL USION Ginther has failed to properly advance any claim of error regarding the admission of evidence before the appeals examiner. Substantial competent evidence supported t he Commission‘s decision to deny Ginther‘s claim for unemployment insurance benefits . We
therefore affirm. Costs to Respondents.

Chief Justice EISMANN and Justices BURDICK, J. JONES and W. JONES CONCUR

.