This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-496

 

Paul Erik Landreville,
Relator,

vs.

Northshore Mining Company,
Respondent,

Commissioner of Employment and
Economic Development,
Respondent.

 

Filed January 27, 2004

Affirmed

Peterson, Judge

 

Department of Employment and Economic Development

File No. 1262902

 

Paul E. Landreville, 803 North Eighth Street, Virginia, MN  55792 (pro se relator)

 

Northshore Mining Company, c/o Carl Kerschen, 10 Outer Drive, Silver Bay, MN  55614 (respondent-employer)

 

Lee B. Nelson, Philip B. Byrne, Minnesota Department of Employment and Economic Development, 390 North Robert Street, St. Paul, MN  55101 (for respondent-commissioner)

 

            Considered and decided by Harten, Presiding Judge; Peterson, Judge; and Hudson, Judge.

 

 

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

Relator Paul E. Landreville challenges the decision of the commissioner’s representative that he is disqualified from receiving unemployment benefits because he was discharged for employment misconduct.  We affirm.

FACTS

Relator worked as a full-time, electrical-maintenance technician for respondent Northshore Mining Company (“Northshore”).  He was responsible for inspecting, repairing and maintaining electrical equipment at Northshore’s mine.

To restart operations following a controlled blast in the mine, Northshore’s rules require an examination of the blast area to determine whether the blast created any safety hazards, including electrical problems.  The examination following a May 22, 2002, blast revealed damage to electrical power wires.  The corrective plan for the damage required: (1) locking out the power source to the pit at the feeder, (2) locking out the switchgear in the pit, and (3) jumping the power lines to get power to a shovel and drill in the pit.

Relator used his personal lock on the feeder breaker to lock out the power source to the pit at the feeder.  Northshore’s policy, however, requires using a company lock on the breaker.  Relator then failed to properly disconnect and lock out the switchgear in the pit before disconnecting a cable leading to the shovel.  After jumping the lines changed the power source, another electrician noticed that the power did not come on at the shovel, but the lights were burning on the drill.  This meant that the cable that relator had disconnected was energized with 4,160 volts of electricity, which could have seriously injured or killed anyone who came in contact with the cable.  Relator then went and locked out the switchgear.    

Later that day, during a meeting with his supervisor, relator entered a statement in the electrical-technician’s report indicating that the procedure he followed to lock out the switchgear was wrong.  Relator’s entry stated,

(I dropped power @ crusher west feeder put my safety lock on & opened up a box behind shovel with the switch house still in.  This was wrong.  I should have not relied only on the feeder being locked out but should have opened up switch house too.)  The feeder can be energized from other sources by moving jumpers.

 

The company’s investigation concluded that because there was power to the drill in the pit, the switchgear had not been properly locked out.  Northshore identified other incidents as contributing to relator’s termination,[1] but the May 22, 2002, incident was the primary reason for his discharge. 

D E C I S I O N

            An employee discharged for employment misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4(1) (2002).

Employment misconduct means:

(1)              any intentional conduct, on the job or off the job, that disregards the standards of behavior that an employer has the right to expect of the employee or disregards the employee’s duties and obligations to the employer; or

(2)              negligent or indifferent conduct, on the job or off the job, that demonstrates a substantial lack of concern for the employment. 

 

Minn. Stat. § 268.095, subd. 6(a) (2002).  To be intentional, the conduct must be deliberate and not accidental.  Houston v. Int’l Data Transfer Corp., 645 N.W.2d 144, 149 (Minn. 2002).  Minn. Stat. § 268.095, subd. 6(a)(1) also requires

a sufficient showing in the record that the employee not only engaged in intentional conduct, but also intended to, or engaged in conduct that evinced an intent to, ignore or pay no attention to his or her duties and obligations or the standards of behavior the employer has a right to expect.

 

Id. at 150.  “A single incident can constitute misconduct when an employee deliberately chooses a course of conduct that is adverse to the employer.”  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 806 (Minn. 2002).

            Whether an employee has committed employment misconduct presents a mixed question of fact and law.  Colburn v. Pine Portage Madden Bros., Inc., 346 N.W.2d 159, 161 (Minn. 1984).  “Whether an employee committed the specific act or acts alleged to be misconduct is a question of fact.”  Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  “But whether the acts constitute misconduct is a question of law.”  Id.

            Issues of fact are determined by a preponderance of the evidence.  Minn. Stat. § 268.03, subd. 2 (2002).  The findings of the commissioner’s representative are reviewed in the light most favorable to the decision, and if there is evidence reasonably tending to sustain the findings, they will not be disturbed.  Schmidgall, 644 N.W.2d at 804.  “When the parties have presented conflicting evidence on the record, this court must defer to the Commissioner’s ability to weigh the evidence; we may not weigh that evidence on review.”  Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995).  When conflicting testimony requires a credibility determination, we defer to the commissioner’s representative’s credibility determination.  Jenson v. Dep’t of Econ. Sec., 617 N.W.2d 627, 631 (Minn. App. 2000), review denied (Minn. Dec. 20, 2000).

            The commissioner’s representative concluded that relator was discharged for employment misconduct because he failed to follow the employer’s safety procedures on May 22, 2002.  Relator argues that he did his job properly when he locked out the power source to the pit at the feeder, and it was other electricians who by-passed this lock-out that allowed the 4,160-volt cable to be energized.  But Kimball Alvey, Northshore’s area manager of safety and loss control, who testified that relator properly locked out the main power source at the feeder breaker, also testified that relator “failed to lock out the line to the pit.” Alvey also wrote in the report of his investigation of the incident that relator disconnected the power to the pit, but he “did not lockout the switchgear, which is the last source of protection from electrical power to anyone working on the shovel.”

            Alvey also wrote in his report that relator attended a meeting of electricians to discuss the corrective-action plan, and the plan included jumping the power lines to provide power to the shovel and drill.  This indicates that relator knew that power was to be re-routed to the cable that he disconnected without first locking out the switchgear and that the other electricians acted according to the plan.

            Relator argues that Alvey did not attend the meeting of electricians to discuss the corrective-action plan on the day of the blast, and, therefore, Alvey’s conclusion that relator attended the meeting is based on hearsay statements of other electricians that the meeting occurred and that relator was at the meeting. 

Relator is correct that the electricians’ statements that he attended the corrective-action-plan meeting are hearsay.  The electricians who reported that relator attended the meeting did not testify at the hearing before the unemployment law judge.  But hearsay is admissible at a hearing before an unemployment law judge.  Minn. Stat. § 268.105, subd. 1(b) (2002) sets forth the procedure for the evidentiary hearing before an unemployment law judge.  The statute provides that “[T]he commissioner shall adopt rules on evidentiary hearings.  The rules need not conform to common law or statutory rules of evidence and other technical rules of procedure.”  Minn. Stat. § 268.105, subd. 1(b).  Under the rules adopted by the commissioner, an unemployment law judge “may receive any evidence which possesses probative value, including hearsay, if it is the type of evidence on which reasonable, prudent persons are accustomed to rely in the conduct of their serious affairs.”  Minn. R. 3310.2922 (2001).  Statements that employees make during an employer’s investigation of an incident that affected the employees’ safety and, if it occurred again, could place the employees in danger, is the type of evidence on which reasonable, prudent persons are accustomed to rely in the conduct of their serious affairs.   The electricians’ statements are admissible hearsay.

Furthermore, relator admitted in his electrical-technician’s report that the procedure he followed to lock out the switchgear was wrong, which indicates that relator knew the correct procedure.  Relator contends that he wrote that statement under duress when his supervisor told him what to write.  But whether relator was truthful when he wrote the statement or truthful when he testified that he wrote the statement under duress is a credibility determination, and we must defer to the commissioner’s representative’s credibility determination.

There is evidence that reasonably tends to support the commissioner’s representative’s findings that relator failed to follow known company procedures to lock out the power source to the pit at the feeder and failed to disconnect and lock out the switchgear in the pit.  Because these are procedures that Northshore had the right to expect relator to follow, failing to follow the procedures is employment misconduct.

Affirmed.



[1]Additional reasons set forth in the termination memo are: (1) electrical department personnel believe relator works in an unsafe manner, is not a team player, does not communicate well, is not receptive to training; (2) relator gave false information to his supervisor during the investigation; (3) relator made threatening statements during the investigation; and (4) supervisors counseled relator on at least five separate occasions about his poor work performance.