Opinion
A22-0911
03-20-2023
Anoka County, Anoka, Minnesota, Respondent, v. Law Enforcement Labor Services, Inc., Brooklyn Center, Minnesota, Relator, Bureau of Mediation Services, Respondent.
Scott M. Lepak, Jennifer C. Moreau, Barna, Guzy &Steffen, Ltd., Minneapolis, Minnesota (for respondent Anoka County). Scott Higbee, Renee Zachman, Law Enforcement Labor Services, Inc., Brooklyn Center, Minnesota (for relator). Keith Ellison, Attorney General, Corinne Wright, Assistant Attorney General, St. Paul, Minnesota (for respondent Bureau of Mediation Services). Josie Hegarty, AFSCME Council 5, South St. Paul, Minnesota (for Amici AFSCME Council 5).
This opinion is nonprecedential except as provided by Minn. R. Civ. App. P. 136.01, subd. 1(c).
Bureau of Mediation Services File No. 22PCE0989
Scott M. Lepak, Jennifer C. Moreau, Barna, Guzy &Steffen, Ltd., Minneapolis, Minnesota (for respondent Anoka County).
Scott Higbee, Renee Zachman, Law Enforcement Labor Services, Inc., Brooklyn Center, Minnesota (for relator).
Keith Ellison, Attorney General, Corinne Wright, Assistant Attorney General, St. Paul, Minnesota (for respondent Bureau of Mediation Services).
Josie Hegarty, AFSCME Council 5, South St. Paul, Minnesota (for Amici AFSCME Council 5).
Considered and decided by Reilly, Presiding Judge; Reyes, Judge; and Larson, Judge.
NONPRECEDENTIAL OPINION
REILLY, Judge.
In this certiorari appeal, relator-union challenges an order issued by respondentagency on a petition for determination of an appropriate collective bargaining unit. Because respondent did not err by determining that relator's proposed bargaining unit was not an appropriate collective bargaining unit and that respondent county's alternative proposal was the appropriate collective bargaining unit, we affirm.
FACTS
In November 2021, relator Law Enforcement Labor Services, Inc. (the union) petitioned respondent Bureau of Mediation Services (BMS) for a determination of an appropriate bargaining unit. The union sought certification of a group of employees from the Anoka County Sheriff's Office (the sheriff's office). The union proposed a bargaining unit defined as, "All clerical and technical employees of the [sheriff's office], Anoka County, Minnesota, who are public employees within the meaning of Minn. Stat. § 179A.03, subd. 14, excluding supervisory, confidential, and all other employees." The proposed unit encompassed 16 positions: administrative services assistant, administrative supervisor, civil specialist, community relations coordinator, crime analyst, crime watch coordinator, data practices specialist, gun permit assistant, jail program coordinator, office support assistant, principal accounting clerk, principal administrative secretary, property technician, records technician, technical analyst, and training coordinator.
Respondent Anoka County opposed the union's petition and proposed a broader, county-wide clerical and technical unit. The county argued that there are 129 positions employed by the county within the job categories of administrative support, paraprofessional, service maintenance, and technical employees. The county noted that six of the 16 position titles identified by the union also exist in other county divisions, departments, or offices. Additionally, the county had 11 existing bargaining units. The county argued that the union's proposed bargaining unit would lead to the "undue proliferation of units." Thus, the county proposed a "broader wall to wall bargaining unit" for county clerical and technical employees.
BMS conducted a hearing in April 2022 and received stipulated exhibits into evidence. The parties stipulated to these issues at the start of the hearing: (1) "Whether the petitioned for bargaining unit is an appropriate bargaining unit"; and (2) "If not, what is the appropriate bargaining unit." Following the hearing, BMS issued a decision in June 2022 finding that the union's proposed bargaining unit was not an appropriate unit. BMS further determined that the only appropriate bargaining unit was a county-wide unit consisting of: "All clerical and technical employees of Anoka County, who are public employees within the meaning of Minn. Stat. § 179A.03, subd. 14, excluding the appraiser, senior appraiser, professional, supervisory, confidential, essential and all other employees."
The parties also asked BMS to consider whether "the positions of [c]ommunity [r]elations [c]oordinator and [t]ech [a]nalyst [should] be excluded as professional employees." BMS determined that these positions should be included as professional employees within the unit. The union does not challenge BMS's decision on this issue.
This certiorari appeal follows.
DECISION
I. Standard of Review
"Decisions of the commissioner [of BMS] relating to supervisory, confidential, essential, and professional employees, [or] appropriateness of a unit . . . may be reviewed on certiorari by the court of appeals." Minn. Stat. § 179A.051(a) (2022). "A presumption of correctness attaches to an agency decision, and deference is shown to an agency's conclusions in the area of its expertise." In re Rev. of 2005 Ann. Automatic Adjustment of Charges for All Elec. &Gas Utils., 768 N.W.2d 112, 119 (Minn. 2009) (In re 2005 Adjustment of Charges). Agency decisions "will be reversed only when they reflect an error of law or where the findings are arbitrary, capricious, or unsupported by substantial evidence." CUP Foods, Inc. v. City of Minneapolis, 633 N.W.2d 557, 562 (Minn.App. 2001), rev. denied (Minn. Nov. 13, 2001). A decision is arbitrary and capricious if it represents the "agency's will, rather than its judgment, or if the decision is based on whim or is devoid of articulated reasons." Id. at 565. "An agency's conclusions are not arbitrary and capricious if a rational connection between the facts found and the choice made is articulated." Fine v. Bernstein, 726 N.W.2d 137, 142 (Minn.App. 2007), rev. denied (Minn. Apr. 17, 2007). The party challenging the agency's decision bears the burden of proof. CUP Foods, Inc., 633 N.W.2d at 563. "Where the evidence is conflicting or more than one inference may be drawn from the evidence, findings must be upheld." Id. at 562.
II. Statutory Framework
The union challenges BMS's decision to deny its petition for determination of an appropriate bargaining unit. The Public Employee Labor Relations Act (PELRA) governs public-sector labor-management relations in Minnesota. See Minn. Stat. §§ 179A.01-.60 (2022). PELRA's objectives include promoting the "orderly and constructive relationships between all public employers and their employees." Minn. Stat. § 179A.01(a). PELRA generally recognizes the right of public-sector employees to form and join unions and to collectively bargain with their employers. Minn. Stat. § 179A.06, subds. 2, 5.
BMS shall "determine appropriate units, under the criteria of section 179A.09," including the classifications or positions assigned to the unit. Minn. Stat. §§ 179A.04, subd. 2, .10, subd. 2. Section 179A.09 provides that:
In determining the appropriate unit, the commissioner [of BMS] shall consider the principles and the coverage of uniform comprehensive position classification and compensation plans of the employees, professions and skilled crafts, and other occupational classifications, relevant administrative and supervisory levels of authority, geographical location, history, extent of organization, the recommendation of the parties, and other relevant factors. The commissioner shall place particular importance upon the history and extent of organization, and the desires of the petitioning employee representatives.Id., subd. 1.
These factors are known as "community of interest" factors. See, e.g., Sch. Serv. Emps. Loc. No. 284, Eden Prairie v. Indep. Sch. Dist. No. 270, Hopkins, 499 N.W.2d 828, 832 (Minn.App. 1993). Together with the community-of-interest factors, BMS may also consider whether overfragmentation will result from the certification of a proposed bargaining unit. See Minn. State Coll. Bd. v. Pub. Emp. Rels. Bd., 228 N.W.2d 551, 561 (Minn. 1975) (noting that the statute "attempt[s] to eliminate the overfragmentation which might result from the certification of individual bargaining units" (quotation omitted)); see also County of Scott v. Pub. Emp. Rels. Bd., 461 N.W.2d 503, 506 (Minn.App. 1990) (observing that the agency "may properly seek to avoid overfragmentation in the organization of public employees"), rev. denied (Minn. Dec. 20, 1990).
III. BMS's Decision Is Not Arbitrary or Capricious and Is Supported by Substantial Evidence in the Record.
BMS determined that the union's proposed unit was not an appropriate unit and that the county's alternative proposed unit was the appropriate bargaining unit for the sheriff's office employees. In its analysis, BMS considered the statutory community-of-interest factors and the risk of overfragmentation. We address each element in turn.
a. Statutory Factors
Principals and coverage of uniform comprehensive position classification and compensation plans. BMS considered the principals and coverage of uniform comprehensive position classification and compensation plans. The parties agreed that the sheriff's office employees "fall under the County's non-union classification and compensation system." BMS found that there are similarities between the union's proposed unit and other county clerical and technical positions. BMS further found that the union "[did] not identify dissimilarities between their proposed unit and other clerical and technical positions." As a result, BMS determined that this factor weighed against certification of the union's proposed unit.
The union argues that BMS's findings are arbitrary and capricious. But BMS's conclusions are not arbitrary and capricious if there is a rational connection between the facts found and the choice made by the agency. Fine, 726 N.W.2d at 142. BMS articulated a rational connection between its factual findings and its decision about this factor. BMS heard testimony from a county human-resources manager who provides human-resources services to county departments, including the sheriff's office. She testified that several positions that exist in the sheriff's office also exist in other county departments. She confirmed that the hiring and interview process is "substantially the same or similar for [the] Sheriff's Office and all the other departments at the county." The human-resources manager agreed that sheriff's office employees have the same titles as other county employees and that any distinctions "lie[] in the individual duties and the department rather than the title." She also confirmed that the job titles were "common" in the county's class and compensation system. She acknowledged that other county employees could not transfer to a position within the sheriff's office. At the same time, she testified that such transfers are also uncommon in other departments and divisions and stated, "It's not common for employees to be allowed to transfer across department lines without going through some sort of selection process." This testimony supports BMS's finding that there are similarities between the union's proposed unit and other clerical and technical positions within the county.
The union contends that BMS's holding "afforded too little weight to the [sheriff's county] employees' constitutional and statutory right to unionize." We agree that "[t]he right of employees to collectively organize is statutorily recognized in Minnesota." Hill-Murray Fed'n of Tchrs. v. Hill-Murray High Sch., Maplewood, Minn., 487 N.W.2d 857, 867 (Minn. 1992); see also Minn. Stat. § 179.10, subd. 1 (2022) (instructing that "[e]mployees shall have the right of self-organization and the right to form, join, or assist labor organizations"). Upon review, we conclude that the union's challenge goes to either the credibility of the witnesses or the weight BMS placed on that evidence in determining that the proposed unit shared similarities with other county positions. As a reviewing court, we defer to the agency's credibility determinations, and we will not substitute our judgment for that of the agency. Minneapolis Police Dept. v. Kelly, 776 N.W.2d 760, 766 (Minn.App. 2010). BMS's findings are supported by evidence in the record and are not arbitrary or capricious.
Professions and skilled crafts, and other occupational classifications. For this factor, BMS reviewed the job descriptions for the sheriff's office clerical and technical positions and the job descriptions for similar positions in other county departments. BMS found that "[t]he requirements for the jobs as well as the duties vary significantly from position to position." BMS found that "[t]he skills, crafts, and occupational classifications of [the proposed unit] are wide-ranging and diverse." BMS further found that "[t]he employees [in the county's alternative bargaining unit proposal] are also wide-ranging and diverse." BMS therefore determined that this factor was neutral.
The union argues that BMS's finding of neutrality is unsupported by substantial evidence because BMS failed to consider the evidence as a whole. The union claims that the evidence instead supports a finding that there is "a unique community of interest" among positions in its proposed unit. The union argues that sheriff's office employees are unique because they are required to participate in mental-health services, undergo extensive background investigations before employment, and could not work from home during the pandemic while other county employees had a right to do so. Again, the union seems to disagree with how BMS weighed the evidence. But it is within BMS's discretion to weigh the evidence and judge the credibility of witness testimony. CUP Foods, Inc., 633 N.W.2d at 563. "Unless manifestly unjust, inferences must be accepted even though it may appear that contrary inferences would be better supported by the record." Id. While we could make different findings based on the testimony presented, it is not the role of this court to do so on appeal. We therefore conclude that BMS's findings are supported by substantial evidence.
Relevant administrative and supervisory levels of authority. In addressing this factor, BMS acknowledged the union's argument that this factor weighs in its favor because the sheriff's office employees are supervised through a "paramilitary chain of command" that runs through the sheriff's office and ends with the sheriff. BMS acknowledged this argument but found that "[a] paramilitary structure does not affect collective bargaining abilities." BMS further found that the union failed to establish "that a lack of common supervision between [sheriff's office] employees and other County employees would create inconsistency in grievance responses and outcomes which could lead to 'unrest, instability and confusion.'" BMS determined that this factor weighed in favor of the county's alternative proposed unit.
The union argues that the positions in its proposed unit share a common supervisor, have a unique hiring process, and follow the same grievance procedures. The union claims that, based on this evidence, BMS should have determined that this factor favored the union's proposed unit. We do not agree. The record shows that the positions within the sheriff's department fall into multiple divisions, including the regional forensics lab, the jail division, the justice services division, the sheriff's administration division, the criminal investigative division, and the patrol division. Each division has its own commander and lieutenant. While these divisions ultimately report to the sheriff, they have different supervisors and separate chains of command. Additionally, the sheriff's office process for selecting and hiring employees is not unique to that department, compared with other county departments. The human-resources manager testified that the sheriff's office determines who to interview for each position and ultimately makes the hiring decision for each position within its department. Yet the human resources manager agreed that this selection and hiring process is "substantially the same or similar" for "all the other departments at the county." Based on this record, we determine that BMS's finding that this factor weighs against the union's proposed unit is supported by substantial evidence.
Geographic location. As for the geographic location of the employees in the proposed unit, BMS reasoned that if employees work in several locations then this factor would weigh against the certification of the union's proposed unit. The witnesses testified that they work in two locations in the county, the jail in downtown Anoka and the sheriff's office in Andover. BMS found that there was not a common or distinct geographical location for the union's proposed unit and concluded that this factor weighed against certification of the union's proposed unit.
The union argues that "operations between the two buildings are functionally integrated" because both buildings are located within Anoka County, both buildings are part of the sheriff's department, and employees interact mainly with one another but not with other county employees. That said, the record supports BMS's finding that the employees do not work at a common or distinct location. The human-resources manager testified that employees in the sheriff's department work at both the jail in Anoka and an office in Andover. An administrative supervisor in the jail division testified that she works in the jail and confirmed that the jail is in a different location than the sheriff's office. The union is urging us to draw a different inference from this evidence-namely, that sheriff's office employees are a distinct unit even though they are not located in a common location. But caselaw instructs that "[w]here . . . more than one inference may be drawn from the evidence, findings must be upheld." CUP Foods, Inc., 633 N.W.2d at 563. The record evidence supports BMS's findings on this factor.
History. The union argued that the history between the employees and the sheriff's office "span[ned] over 30 years and demonstrates stability in labor relations." BMS acknowledged that the union "is the exclusive representative for a vast majority of [sheriff's office] employees." Further, relying on one of its earlier decisions, BMS found that there was "strong evidence that a broad bargaining unit would not lead to stable and constructive labor relations." BMS determined that this factor weighed in the union's favor. The union does not challenge BMS's findings on this factor.
Extent of organization. BMS acknowledged the union's argument that it is "uniquely qualified and experienced in representing employees of law enforcement agencies" and had "no interest in representing a county-wide group." The union noted that sheriff's office employees also wanted to be represented by the union. BMS recognized that sheriff's office employees wanted a separate union but noted that "the extent of organization means the breadth of union support among employees. It measures which grouping of employees has expressed support for the union. It is not, in fact, the same thing as the desires of the petitioning employee representatives, who are the union organizations themselves." BMS stated that it had received a petition from a different union seeking to represent a group of librarians in Anoka County. BMS reasoned that there was a community of interest among employees in Anoka County broader than just the sheriff's office employees, which weighed against the union's proposed unit. Substantial evidence in the record supports this finding.
Recommendation of the parties. BMS found that "[n]ot surprisingly the parties have differing recommendations as to the construction of the appropriate unit." The union argued that sheriff's office employees "share a unique community of interest distinct from other County employees." The county, by contrast, claimed that the union's proposed bargaining unit "would result in some employees in a common classification being part of the bargaining unit while excluding others in the same general job title." The county sought a "broader wall to wall bargaining unit" for county clerical and technical employees. BMS concluded that this consideration was neutral and provided "no guidance" in its ultimate decision. The union argues that BMS did not appropriately weigh this factor. But BMS recognized that the "[d]esires of the petitioning employee representative are to represent only the clerical/technical employees of the Sheriff's Office." BMS also acknowledged the "particular importance of this factor when considering the weight of all factors in total." We are persuaded that BMS appropriately considered this factor, and we discern no basis for reversal.
Other relevant factors. Lastly, BMS considered other relevant statutory factors including the: (1) degree of functional integration, (2) nature of the employee skills and occupational functions, (3) interchangeability and contact among employees, (4) general working conditions, (5) hours of work, (6) number of employees affected, (7) work location, (8) nature of compensation, and (9) common supervision. BMS applied each factor and found that the lack of interchangeability, the contact among other employees, and the work location weighed in the union's favor. Even so, BMS found that a review of the job descriptions, the hours of work, the general working conditions, and the common supervision weighed in the county's favor. BMS concluded that these factors were neutral and neither weighed in favor nor against the union's proposed unit.
These factors come from a previous BMS decision. See Independent School District No. 709, Duluth and Non-Certified Supervisory Association and Education Directors Association, BMS Case No. 87-PR-0161 (July 22, 1987).
The union argues that BMS should have determined that these factors weighed in the union's favor. For example, the union faults BMS for failing to appropriately consider the job descriptions for the various departments. The union also argues that the general working conditions support their proposed unit. Upon review, we are persuaded that BMS did not ignore any of the relevant factors. While the union does not agree with BMS's analysis, the decision shows that BMS was aware of, and considered, each relevant factor. Our review is deferential, and we will not substitute our judgment for that of the agency. Kelly, 776 N.W.2d at 766. We discern no error in BMS's analysis of these final statutory factors.
b. Overfragmentation Concerns
Along with its analysis of the community-of-interest factors, BMS determined that certification of the union's proposed unit would lead to overfragmentation. Overfragmentation is a relevant consideration in a certification analysis. County of Scott, 461 N.W.2d at 506. The Minnesota Supreme Court instructs that:
[t]he purpose behind the PELRA and its incidents promoting collective bargaining is that those engaged in common occupations . . . with common goals and problems should bargain together for particular demands. Obviously, the Act and its statutory coordinates attempt to eliminate the "overfragmentation" which might result from the certification of individual bargaining units.Minn. State Coll. Bd., 228 N.W.2d at 561. BMS properly considered the risk of overfragmentation in determining whether the union's proposed bargaining unit was an appropriate unit. The decision noted that "[i]t is [BMS's] policy absent compelling reasons otherwise or stipulation by the parties to only certify four basic bargaining units in counties to prevent over-fragmentation of bargaining units." Generally, "units of essential, highway maintenance and public works, social service department, and county-wide office-clerical-administrative, technical, and professional employees will generally be determined as appropriate." BMS determined that the union's proposed unit would lead to overfragmentation of the clerical and technical group of employees in the county.
We also recognize this principle in a nonprecedential decision, which has persuasive value. See City of Bloomington v. Am. Fed'n of State, Nos. A12-1829, A12-2016, 2013 WL 3491133, at *5, n.3 (Minn.App. July 15, 2013) (noting that BMS considers the risk of overfragmentation when "[a]n unduly large number of bargaining units may either dilute the bargaining power of employees or subject the employer to whipsaw bargaining" (quotation and citation omitted)); see also Minn. R. Civ. App. P. 136.01, subd. 1(c) (allowing citation of nonprecedential opinions for persuasive value).
The union argues that BMS placed undue emphasis on this consideration and that "no unit should be presumed to cause over-fragmentation merely because it falls outside one of the four 'preferred' groups." The union notes that the county has eleven bargaining units, "far surpassing the presumption in favor of four basic groups." As a result, the union argues that certification of this unit would not lead to overfragmentation.
The union relies on caselaw from Vermont in support of its argument. We do not consider this caselaw persuasive. See Mahowald v. Minn. Gas Co., 344 N.W.2d 856, 861 (Minn. 1984) (noting that cases from other jurisdictions are not binding).
We are not persuaded. BMS acknowledged that there were "numerous bargaining units" already represented by the union in Anoka County. But BMS stated that these units "were primarily the result of stipulations between the parties." The record shows that there are 129 county positions that fall within the job categories of administrative support, paraprofessional, service maintenance, and technical employees. Six of the 16 position titles identified by the union also exist in other county divisions, departments, or offices. For example, a county witness testified that the positions of administrative supervisor, principal accounting clerk, principal administrative secretary, technical analyst, administrative services assistant, and office support specialist also exist in departments other than the sheriff's office. The union's current proposal to represent some-but not all-of these employees increases the risk of disruption caused by overfragmentation. Thus, BMS acted within its authority by determining that the risk of overfragmentation weighed against certification of the union's proposed bargaining unit.
In sum, we determine that BMS properly identified and considered the statutory community-of-interest factors set forth in Minn. Stat. § 179A.09 and the risk of overfragmentation. The union has not satisfied its burden of showing that the order is erroneous, arbitrary or capricious, or unsupported by record evidence. See In re Request for Issuance of SDS Gen. Permit MNG300000 , 769 N.W.2d 312, 323 (Minn.App. 2009) (placing burden of proof on the party challenging the agency's decision). Based on our deferential standard of review, we therefore conclude that substantial evidence supports BMS's determination that the union's proposed bargaining unit was not an appropriate collective bargaining unit and that the county's alternative proposed unit was the appropriate bargaining unit.
IV. BMS's Procedure in Analyzing the Union's Petition
The union finally challenges the procedure BMS used in analyzing its petition. BMS has used the following procedure in the past when evaluating a union's petition:
Because it is the union which is seeking to establish rights under the statute-and since the standard is "an" appropriate unit, rather than the "most" appropriate unit-when confronted with employer-union contentions over the boundaries of the appropriate unit, it is customary for administrative agencies to examine the proposals of the union first. It is only when the union's proposals are rejected as "inappropriate" that it becomes necessary to examine those presented by the employer.Hill-Murray Fed'n of Tchrs., 487 N.W.2d at 867.
Given the deferential standard of review, we conclude that BMS did not depart from its normal procedure because the record shows BMS ultimately evaluated the union's petition using this established standard. We do acknowledge, however, that in its evaluation of the community-of-interest factors, BMS appeared to depart from this policy by directly comparing the unit proposed by the union with the unit proposed by the county. BMS asserts that, even if this were a change from prior procedure, "[n]othing in PERLA . . . requires [BMS] to first examine the petitioned-for unit." But we observe that it is well-accepted that "[a]n agency must either conform to its prior norms and decisions or explain the reason for its departure from such precedent." In re 2005 Adjustment of Charges, 768 N.W.2d at 120 (quotation omitted). To the extent that BMS intends to depart from its prior norms in the future, it "must set forth a reasoned analysis for the departure that is not arbitrary and capricious." Id.
Affirmed.