This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).


Gregory Hansen,


Willmar Electric Service, Inc.,

Filed December 14, 1999
Anderson, Judge

Kandiyohi County District Court
File No. C2-98-890

Richard A. Miller, Brendan D. Cummins, Miller, O’Brien, Bloom, 1208 Plymouth Building, 12 South Sixth Street, Minneapolis, MN 55402 (for appellant)

Douglas P. Seaton, Jill Krummen, Burk & Seaton, P.A., 7301 Ohms Lane, Suite 320, Edina, MN 55439 (for respondent)


Considered and decided by Short, Presiding Judge, Anderson, Judge, and Holtan, Judge.[*]

U N P U B L I S H E D   O P I N I O N


The district court refused to impose a late-payment-of-wages penalty under Minn. Stat. § 181.13 (Supp. 1997) concluding that a National Labor Relations Board (NLRB) settlement precludes the penalty. Because receipt of a penalty under section 181.13, in addition to a NLRB settlement for "backpay," does not result in a double recovery, we reverse.


On February 13, 1998, appellant Gregory Hansen was released from his employment at Willmar Electric Service. On the same day, appellant made a demand for immediate payment of his wages. Appellant did not receive his wages until February 20, 1998. Appellant filed suit in conciliation court seeking damages for the six-day delay in payment of his wages under Minn. Stat. § 181.13 (Supp. 1997). The conciliation court imposed a $1,024 statutory penalty on respondent for late payment of appellant’s wages.

In addition to the state-law claim, appellant simultaneously pursued a federal action with the NLRB. Appellant charged that respondent had wrongfully terminated his employment because of union organizing activities. The parties settled the NLRB claim, and respondent agreed to pay appellant $2,185.

Respondent then removed the conciliation court case to district court, where the district court reversed the conciliation court decision. The district court concluded that the NLRB settlement precluded appellant from recovering under section 181.13 because (1) recovery under both federal and state law would result in a double recovery, and (2) the NLRB settlement was an accord and satisfaction of appellant’s claims. Appellant now challenges the district court’s refusal to impose a penalty under section 181.13 for late payment of wages.


The facts are undisputed and the only question before this court is whether the district court erred in its interpretation of Minn. Stat. § 181.13 (Supp. 1997). The interpretation of a statute is a question of law and is reviewed de novo. Oslund v. Johnson, 578 N.W.2d 353, 356 (Minn. 1998). Section 181.13 provides that:

When any employer employing labor within this state discharges an employee, the wages or commissions actually earned and unpaid at the time of the discharge are immediately due and payable upon demand of the employee.

Minn. Stat. § 181.13(a) (Supp. 1997). The district court held that appellant could not recover penalty damages under section 181.13 because he had already been "made whole" by the NLRB settlement. Appellant argues that the district court ruling frustrates the purpose of the National Labor Relations Act (NLRA) and is therefore preempted by federal law. Appellant’s reliance on the doctrine of preemption is misplaced. The real question for this court is whether receiving both a penalty under section 181.13 and a NLRB settlement results in a double recovery.

A double recovery of damages is not allowed for a single act of conduct, even if the conduct gives rise to multiple claims. Vaughn v. Northwest Airlines, Inc., 558 N.W.2d 736, 745 (Minn. 1997). A party may offer alternative legal theories, but in order to recover under both claims a party must present clear-and-convincing proof that the acts giving rise to the claims are different in kind. Wirig v. Kinney Shoe Corp., 461 N.W.2d 374, 379 (Minn. 1990). The district court relied on Otis v. Mattila, 281 Minn. 187, 199, 160 N.W.2d 691, 700 (1968), in holding that damages under section 181.13 would result in a double recovery of damages. The court in Otis held that the imposition of a penalty under Minn. Stat. § 181.14, relating to an employee who quits or resigns, in addition to an award for liquidated damages under the Fair Labor Standards Act (FLSA), would result in a double recovery. Id. As the court in Otis explained, an award under the FLSA fulfilled the purpose of the penalty under Minn. Stat. § 181.14 because both provided the "employee a recovery beyond the actual wages due and both prompt the employer to make full and timely payment." Id. at 199, 160 N.W.2d at 700.

Unlike Otis, appellant has not offered claims under the NLRA and Minn. Stat. § 181.13 as alternative theories of recovery. Further, unlike the FLSA, the NLRA is not a prompt-payment-of-wages statute. A NLRA "backpay" remedy may be used to deter unfair labor practices as well to remedy unfair labor practices. Package Serv. Co. v. NLRB, 113 F.3d 845, 848 (8th Cir. 1997). In comparison, a penalty award under section 181.13 penalizes employers who fail to promptly pay employee back wages. Minn. Stat. § 181.13 (Supp. 1997).

The NLRA is triggered when an employee is fired for unfair labor practices; section 181.13 is triggered when an employer fails to timely pay an employee’s wages. The allegation here is that respondent violated both federal and state laws. First, appellant claims that respondent fired him for union-organizing activities in violation of the NLRA, and second, he claims that respondent failed to promptly pay his wages in violation of section 181.13. Here, appellant is entitled to receive "backpay" under the NLRB settlement and a penalty award under section 181.13 because he was subjected to two wrongs at two different times. A double recovery does not result by imposing a penalty for late wages under section 181.13 even though appellant has recovered "backpay" damages in a NLRB settlement agreement.

The district court erred in characterizing the NLRB settlement as an accord and satisfaction of appellant’s claims. An accord and satisfaction is a method of discharging a contract or a cause of action through the mutual agreement of the parties. Acton Const. Co. v. State, 363 N.W.2d 130, 133 (Minn. App. 1985); Action Instruments Co. v. Hi-G, Inc., 359 N.W. 2d 664, 666 (Minn. App. 1984). The parties in this case did not expressly enter into an accord and satisfaction. Rather, the parties expressly agreed that the settlement agreement resolved only appellant’s NLRB claim. The NLRB settlement agreement specifically states, "[t]his Agreement settles only the allegations in the above-captioned case(s), and does not constitute a settlement of any other case(s) or matters." The record is clear; the NLRB settlement was not an accord and satisfaction of appellant’s claims.

Appellant, for the first time, seeks reasonable costs, disbursements, and attorney fees under Minn. Stat. § 181.171. We decline to review this issue because appellant may not raise an issue for the first time on appeal. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). Appellant also seeks attorney fees for this appeal. An award of fees on appeal is a matter of discretion for the appellate court. Bucko v. First Minn. Sav. Bank, 471 N.W.2d 95, 99 (Minn. 1991) (holding plaintiff "may" be entitled to attorney fees upon appeal if statutorily entitled to attorney fees at district court). Even if this court wanted to exercise its discretion and award attorney fees it would be unable to do so; the record is devoid of any data supporting his costs, disbursements, or fees. This court declines to award attorney fees for either the trial or the appellate proceedings.

The record demonstrates that the imposition of a penalty under Minn. Stat. § 181.13 and the NLRB "backpay" settlement did not result in a double recovery.


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