                         This opinion will be unpublished and
                         may not be cited except as provided by
                         Minn. Stat. § 480A.08, subd. 3 (2014).

                              STATE OF MINNESOTA
                              IN COURT OF APPEALS
                                    A15-0540

                             Ken Peterson, Commissioner,
                      Minnesota Department of Labor and Industry,
                                     Respondent,

                                           vs.

                               United Parcel Service, Inc.,
                                        Relator.

                                Filed December 21, 2015
                                       Affirmed
                                      Kirk, Judge

                      Occupational Safety & Health Review Board
                            File No. OAH 60-1901-31010


Lori Swanson, Attorney General, Scott A. Grosskreutz, Assistant Attorney General, St.
Paul, Minnesota (for respondent)

Joseph G. Schmitt, Peter Gray, Lisa M. Schmid, Nilan Johnson Lewis PA, Minneapolis,
Minnesota; and

Carla J. Gunnin (pro hac vice), Jackson Lewis P.C., Atlanta, Georgia (for relator)


      Considered and decided by Stauber, Presiding Judge; Kirk, Judge; and Willis,

Judge.




 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                        UNPUBLISHED OPINION

KIRK, Judge

       Relator United Parcel Service, Inc. (UPS) argues that the Occupational Safety and

Health Division of the Minnesota Department of Labor and Industry (MnOSHA) board

erred in finding that UPS had failed to abate its violations of Minn. R. 5205.0110, subp. 3

(2013), and that the rule was improperly promulgated. We affirm.

                                     DECISION

       This is the second appeal in this continuing litigation. An in-depth summary of the

history of the dispute was provided in our first decision. Peterson v. United Parcel Serv.,

Inc., Nos. A13-2378, A14-0467, 2014 WL 4672393 (Minn. App. Sept. 22, 2014), review

denied (Minn. Dec. 16, 2014). The facts relevant to the instant case are as follows: UPS is

a multi-national package-delivery company that operates a network of retail stores and

distribution centers, including distribution centers in Minneapolis and Maple Grove. In

2010, MnOSHA issued two citations to UPS for violating Minnesota’s indoor-workroom

standard, which, at the time, required an employer to maintain a minimum temperature of

60 degrees Fahrenheit in any indoor workroom where strenuous work was performed. See

Minn. R. 5205.0110, subp. 3. In 2012, the citations became final, and we subsequently

upheld the district court’s grant of summary judgment affirming the finality of the

MnOSHA board’s order. Peterson, 2014 WL 4672393 at *6-*7. The Minnesota Supreme

Court denied UPS’s petition for further review.

       In 2013, MnOSHA conducted a follow-up inspection of UPS’s Minneapolis

distribution center, and recorded temperature readings falling below 60 degrees. It issued


                                            2
UPS a failure-to-abate citation and a citation for failure to submit a certification showing

how the violation was corrected, as required under Minn. R. 5210.0532, subp. 2 (2013).

       In December 2013, respondent Minnesota Department of Labor and Industry (DLI)

moved for summary disposition and, after a hearing, the administrative-law judge (ALJ)

granted the motion, affirming the failure-to-abate citations.        UPS appealed and the

MnOSHA board affirmed both citations.

       “Summary disposition is the administrative equivalent of summary judgment.”

Pietsch v. Minn. Bd. of Chiropractic Exam’rs, 683 N.W.2d 303, 306 (Minn. 2004).

Summary disposition is appropriate if there are no genuine issues of material fact and the

moving party is entitled to judgment as a matter of law. In re Rate Appeal of Benedictine

Health Ctr., 728 N.W.2d 497, 500-01 n.3 (Minn. 2007). The MnOSHA board’s decision

may be appealed “in accordance with the applicable provisions of [the Minnesota

Administrative Procedure Act (MAPA), Minn. Stat. §§ 14.001-.69 (2014)].” Minn. Stat.

§ 182.65 (2014). This court will affirm an administrative agency’s decision unless its

findings, inferences, conclusions, or decisions are

                      (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. A party challenging an agency’s findings must establish that they are

not supported by substantial evidence. Reserve Mining Co. v. Herbst, 256 N.W.2d 808,



                                              3
826-27 (Minn. 1977). If an agency engages in reasoned decision-making, we will affirm,

even if we may have reached a different conclusion had we been the fact-finder. Cable

Commc’ns Bd. v. Nor–W. Cable Commc’ns P’ship, 356 N.W.2d 658, 669 (Minn. 1984).

We presume that an agency’s decision is correct and defer to an agency’s conclusions in

its area of expertise. Id. at 668.

       The commissioner of DLI is authorized to impose penalties when an employer fails

to correct a violation after a final order. Minn. Stat. § 182.661, subd. 2 (2014). An

employer who repeatedly violates the requirements of any order adopted under the

authority of the commissioner may be assessed a fine. Minn. Stat. § 182.666, subd. 1

(2014).

       On appeal, UPS argues that MnOSHA did not prove that UPS failed to abate the

original citations and that the indoor-workroom standard was improperly promulgated and

is therefore invalid. UPS contends that it is difficult to simultaneously comply with the

indoor workroom-standard and the garage ventilation rule, especially in the winter months,

when it must constantly circulate cold, fresh air into the garage areas. See Minn. R.

5205.0200, subp. 1 (2013) (stating “[v]entilation shall be provided for . . . all live storage

garages, housing six or more vehicles driven by internal combustion engines.”).

       We recognize the practical difficulty faced by UPS in complying with both the

indoor-workroom standard and the garage-ventilation rule in the winter months. But UPS

lost its opportunity to challenge the validity of the indoor-workroom standard when it failed

to perfect its certiorari appeal of the final order. This case is narrow in scope: it is solely

about UPS’s compliance with the 2012 final order requiring it to comply with the indoor-


                                              4
workroom standard. On this point, UPS failed to present any evidence before the ALJ or

the MnOSHA board indicating that it had abated or attempted to abate its violation at any

time after the final order. For this reason, the MnOSHA board’s decision is supported by

substantial evidence in the record. Reserve Mining Co., 256 N.W.2d at 826-27.

       Moreover, in an October 2013 order opinion, we dismissed UPS’s declaratory-

judgment petition to review the validity of the indoor-workroom standard because the

occupational-safety-and-health standards provided in Minn. Stat. § 182.655 (2014) are not

subject to review by this court under Minn. Stat. § 14.44 (2014). Therefore, UPS’s

challenge to the legality of the indoor-workroom standard is not properly before this court.

       Affirmed.




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