This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-96-2268

Gary W. Bastian, Commissioner,

Department of Labor and Industry,

State of Minnesota,

Respondent,

vs.

Conrad Peterson,

d/b/a Gopher Tackle; et al.,

Relators.

Filed April 22, 1997

Reversed

Mansur, Judge

[*]

Occupational Safety and Health Review Board

File No. R4512-032-2231

Hubert H. Humphrey III, Attorney General, Francis C. Ling, Assistant Attorney General, 525 Park Street, Suite 200, St. Paul, MN 55103-2106 (for Respondent)

Patrick M. Krueger, Borden, Steinbauer & Krueger, P.A., 302 South Sixth Street, P.O. Box 411, Brainerd, MN 56401 (for Relators)

Considered and decided by Harten, Presiding Judge, Short, Judge, and Mansur, Judge.

U N P U B L I S H E D O P I N I O N

MANSUR, Judge

Relator was found to have discharged two employees in retaliation for their protected activity. Relator challenges (1) the Occupational Safety and Health Review Board's review of the first administrative hearing, which the board affirmed in part and reversed in part; (2) the Board's affirmance of the second administrative hearing, which found that appellant had discharged the two employees in question in retaliation for protected activity; and (3) the Board's affirmance of the damages awarded in the second hearing. We reverse the Board's reversal of the first administrative hearing.

FACTS

Appellant Conrad Peterson owns Gopher Tackle (Gopher), where his wife, Janice, and two children, Tracy and Darrick Peterson, also work. Laurie Turner began working for Gopher in March 1990; her relationship with the Petersons was good and she received regular raises. Turner's brother, Jeffrey Thomas, began working at Gopher in January 1992.

In August 1992, Thomas, with Turner's support, filed a complaint with the Occupational Safety and Health Division (OSHD) of the Minnesota Department of Labor and Industry regarding possible safety and health hazards. The OSHD inspected Gopher in September and October 1992 and issued citations for violations. Turner and Thomas allege that they were harassed by the Petersons, including a denial of raise requests, as a result of the citations.

Turner and Thomas filed a second complaint with OSHD on March 31, 1993. No new violations or uncorrected violations were found. On March 31, Peterson mailed separation notices for Turner and Thomas to the Department of Jobs and Training. Turner was told of her termination on April 1, 1993. Thomas quit that same morning, not knowing that he had been terminated.

Turner and Thomas, through the Commissioner of the Minnesota Department of Labor and Industry (the Commissioner), charged Peterson with retaliatory discharge and other retaliatory activity, alleging that they were discharged because of their protected activity in making health and safety complaints. The Administrative Law Judge (ALJ) held that Turner and Thomas were denied a pay raise because of their protected activities. However, the ALJ held that Turner was not discharged because of her protected activities and that Thomas voluntarily discontinued his employment. The Commissioner appealed the decision to the Occupational Safety and Health Review Board (Board). The Board affirmed the ALJ's holding that Gopher denied Turner's and Thomas's pay raise because of their protected activities and reversed his holdings regarding their discharges.

The issue of the retaliatory discharge was remanded. A second ALJ held that both Turner and Thomas were discharged in retaliation for their protected activities and awarded them backpay and job search expenses. Peterson appealed the second ALJ's holdings to the Board. The Board affirmed. This appeal followed.

D E C I S I O N

Peterson challenges the decisions of the Board, which qualifies as an agency under Minnesota law. See Minn. Stat. § 14.02, subd. 2 (1996). A reviewing court may reverse or modify a decision of an agency if the decision is:

(a) In violation of constitutional provisions; or

(b) In excess of the statutory authority or jurisdiction of the agency; or

(c) Made upon unlawful procedure; or

(d) Affected by other error of law; or

(e) Unsupported by substantial evidence in view of the entire record as submitted; or

(f) Arbitrary or capricious.

Minn. Stat. § 14.69 (1996).

Peterson argues that the Board's decision regarding the first administrative hearing was arbitrary and capricious because it was not adequately supported. A decision is arbitrary and capricious if it is a product of the agency's will and not the agency's judgment. Markwardt v. State, Water Resources Bd., 254 N.W.2d 371, 374 (Minn. 1977). The rejection of an ALJ's findings without explanation is evidence of the agency's desire to exercise its will and not its judgment. Northern Messenger, Inc. v. Airport Couriers, Inc., 376 N.W.2d 285, 290 (Minn. App. 1985), review denied (Minn. Jan. 17, 1986).

In reviewing the ALJ's 22-page order and memorandum, we observe that the Board affirmed in part and reversed in part in a 3-page decision. The board explained reversal on the termination issue by stating:

The Board finds the Complainants' claims have merit and satisfy the three-part analysis for discrimination claims as articulated by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). In addition, the Board finds that the reasons given by Respondents for their actions are pretextual.

This paragraph is not an explanation, but a legal conclusion. We reverse the Board's decision because it fails to provide reasons for its reversal of the ALJ's detailed findings and because it is unsupported by substantial evidence in view of the entire record. As the decision is written, it appears that the Board exercised its will rather than its judgment. While we give deference to the decisions of the Board, that task is made impossible if adequate reasons are not provided for its decisions. We hold that the Board's decision involving its review of the first administrative hearing was arbitrary and capricious. Because of our holding, we need not address the issues raised on this appeal regarding the Board's review of the second administrative hearing.

Reversed.

[ ]* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.