Lumpkin v. North Central Airlines, Inc.

• Decision Date: 06 July 1973
• Docket Number: No. 43903,43903
• Citation: 209 N.W.2d 397,296 Minn. 456
• Parties: Eugene LUMPKIN, Respondent, Commissioner of Manpower Services, Respondent, v. NORTH CENTRAL AIRLINES, INC., Relator.
• Court: Minnesota Supreme Court

Page 397

209 N.W.2d 397

296 Minn. 456

Eugene LUMPKIN, Respondent, Commissioner of Manpower Services, Respondent, v. NORTH CENTRAL AIRLINES, INC., Relator.

No. 43903.

Supreme Court of Minnesota.

July 6, 1973.

Syllabus by the Court

1. Viewing the findings of the commissioner of the Department of Manpower Services in the light most favorable to the decision below, there is evidence reasonably tending to sustain the conclusion that claimant was discharged for reasons other than misconduct.

2. Where the commissioner of the Department of Manpower Services by statute has the authority to affirm, modify, or set aside the findings of fact or decision of the department's appeal tribunal and where the appeal tribunal has applied the wrong burden of proof, the commissioner may on appeal weigh the evidence under the correct burden of proof and need not remand to the appeal tribunal.

3. The decision of a system board of adjustment, as provided by the Railway Labor Act, 45 U.S.C.A. § 151 et seq., upholding claimant's discharge was not res judicata as to the case before the Minnesota Department of Minpower Services where no record of the findings and the issues litigated before the system board was offered into evidence before the Department of Manpower Services.

Maslon, Kaplan, Edelman, Borman, Brand & McNulty, John C. McNulty, and Andris A. Baltins, Minneapolis, for relator.

Oakes, Metcalf & Palm, Minneapolis, for Eugene Lumpkin.

Warren Spannaus, Atty. Gen., Curtis D. Forslund, Sol. Gen., Peter C. Andrews, Asst. Atty. Gen., William A. Peters, Special Atty. Gen., St. Paul, for Commissioner of Manpower Services.

Heard before KNUTSON, C.J., and OTIS, KELLY, and GILLESPIE, JJ.

ROBERT B. GILLESPIE, Justice. ^*

North Central Airlines, Inc., petitioned for a writ of certiorari to review a decision of the Minnesota Department of Manpower Services. Claimant, Eugene Lumpkin, was discharged by his employer, North Central Airlines, Inc., on June 22, 1971, after approximately 11 years of work with the airline. Lumpkin's separation notice stated that he was discharged for pilferage constituting misconduct.

Claimant subsequently applied for unemployment benefits. A claims deputy for the Department of Manpower Services determined that Lumpkin was involuntarily terminated from his employment for reasons other than proven willful misconduct connected with his work. Pursuant to Minn.St. 268.10, subd. 2, relator appealed to an appeal tribunal of the Department of Manpower Services. The appeal, after an evidentiary hearing, affirmed the claim deputy's determination, and relator then appealed the tribunal's decision, as authorized by Minn.St. 268.10, subd. 5, requesting a review by the commissioner. The commissioner found that relator had not sustained the burden of proving by a fair preponderance of the evidence that the acts of claimant complained of constituted misconduct and affirmed the decision of the appeal tribunal.

At the time of claimant's termination, he was employed as the lead cleaner in relator's catering service. For several months prior to claimant's discharge, relator had experienced losses of liquor used in its flight service. The airline hired Pinkerton detectives to watch the employees. Claimant was under surveillance for a number of days but nothing was discovered. At about 9 p.m. on June 20, 1971, George Karnas and Bill Runkel, North Central employees, decided to go to the airport during their off-duty hours to see how the Pinkerton men were doing and to look around. Karnas testified that Lumpkin was his prime suspect. Karnas stationed himself in the flight kitchen office from which he observed claimant step from the back of a company van with what appeared to be a jacket wrapped around his arm. At that moment, Karnas was summoned to the phone to speak to Runkel who had stationed himself along the post road. Karnas, over objection, testified that Runkel told him that he had observed Lumpkin drive a company van down Military Road, stop, and make two trips to the side of the road to deposit some articles. The two men returned to the site of the stop and discovered several boxes filled with approximately 100 miniature bottles of liquor. They decided to wait along the road. At about 10:30 p.m., claimant drove up in his own automobile to the area where the liquor was hidden. Karnas approached the car and observed claimant move from the passenger side to the driver side and at the same time make a 'throwing motion.'

Karnas testified that he confronted claimant and that claimant admitted that he had taken the liquor and requested that he be given a break. When asked if he had company material in a brown bag in the car, claimant replied that he did not and offered to submit to an on-the-spot search of his car. Karnas declined. Claimant's testimony substantiated that of Karnas regarding the bag and the offer to allow a search, but claimant denied making any admissions and denied knowledge of the theft. He testified that he had been on the road to meet a woman, not his wife. Karnas ordered claimant, who had just finished overtime work, to return to the guard shack and write a report. Claimant did not do so and did not return to work for 2 days. Karnas testified that claimant was not due to return to work until the 22nd. Over counsel's objection on the grounds of relevancy, Karnas further testified that claimant had previously been suspended for 30 days for delaying a flight.

A hearing was held before a system board of adjustment, as provided by the Railway Labor Act, 45 U.S.C.A. § 151, et seq., to consider claimant's discharge. On August 6, 1971, the board upheld claimant's discharge; however, no record of those proceedings was presented to the appeal tribunal or the commissioner of the Department of Manpower Services. Claimant also filed discrimination charges with the Minnesota Department of Human Rights, but on March 29, 1972, the commissioner thereof made a determination of no probable cause. That determination and the testimony on which it was based were not before the appeal tribunal and were not a part of the record upon which the commissioner rendered his decision.

The appeal tribunal found that claimant was involuntarily separated from his employment for reasons other than misconduct and thus claimant was not disqualified for benefits. The tribunal found that the employer had not established beyond a reasonable doubt that claimant had stolen the items. Relator then appealed to the commissioner. The commissioner, upon consideration of the evidence in the record and arguments of counsel, approved and adopted the findings of fact and decision of the appeal tribunal in his order. In a short memorandum he noted that the burden is on the employer to show by a fair preponderance of the evidence that the acts complained of constituted misconduct and that the employer had not sustained that burden.

1. Does the evidence sustain the finding of the commissioner that the claimant was involuntarily separated from his employment for reasons other than misconduct? We so find.

The burden to prove that the employee is disqualified from receiving benefits under Minn.St. 268.09, subd. 1, is upon the employer. The employer must establish by the greater weight of the evidence that the employee was guilty of the misconduct charged. Johnson v. Ford Motor Co., 289 Minn. 388, 184 N.W.2d 786 (1971); Kantor v....