In the Matter of a Petition for Decertification of an Exclusive Representative for Certain Employees of the State of Minnesota.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0798

In the Matter of a Petition for Decertification
of an Exclusive Representative for Certain Employees
of the State of Minnesota.

Filed January 16, 2018
Affirmed; motion to strike denied
Johnson, Judge

Bureau of Mediation Services
File No. 17PDE0404

Douglas P. Seaton, Thomas R. Revnew, Michael R. Link, Seaton, Peters & Revnew, P.A.,
Minneapolis, Minnesota (for relators)

Brendan D. Cummins, Cummins & Cummins, LLP, Minneapolis, Minnesota (for
respondent SEIU Healthcare Minnesota)

Lori Swanson, Attorney General, Jacob Campion, Caitlin Micko, Assistant Attorneys
General, St. Paul, Minnesota (for respondent Bureau of Mediation Services)

Considered and decided by Ross, Presiding Judge; Johnson, Judge; and Bratvold,
Judge.
U N P U B L I S H E D O P I N I O N
JOHNSON, Judge
Since 2014, personal-care assistants who provide home-based health-care services
to Medicaid recipients have been represented by a union . In 2016, seven personal-care
assistants petitioned the bureau of mediation services to decertify the union. The bureau
gathered information from the petitioning personal -care assistants and the union and
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ultimately denied the decertification petition on the ground that the petitioners had not
made a sufficient showing of interest in decertification . On appeal, the petitioning
personal-care assistants argue that the bureau erred by not further investigating the facts
relevant to their petition and by not conducting a hearing on the petition. We conclude that
the bureau did not err and, therefore, affirm.
FACTS
In 2013, the legislature and the g overnor enacted into law the Individual Providers
of Direct Support Services Representation Act . See 2013 Minn. Laws ch. 128, a rt. 2, at
2173-78. The act provides that personal-care attendants (PCAs) who perform home-based
health-care services for Medicaid recipients throughout the state may elect to be
represented by a union for purposes of the Public Employment Labor Relations Act
(PELRA), Minn. Stat. ch. 179A. See Minn. Stat. § 179A.54 (2016). Under PELRA, one
or more persons in a bargaining unit “may obtain a decertification election upon petition
to the commissioner [of the bureau of mediation services] stating the certified
representative no longer represents the majority of the employees in an established unit and
that at least 30 percent of the employees wish to be unrepresented.” Minn. Stat. § 179A.12,
subd. 3 (2016); see also Minn. R. 5510.0710, subp. 2. But a decertification petition must
be filed within a 60-day period that is between 270 and 210 days before the expiration of a
collective bargaining agreement. Minn. Stat. § 179A.12, subd. 4; Minn. R. 5510.0510.
In 2014, a certification election was held for the bargaining unit. A majority of the
5,849 voting PCAs chose to be represented by the Service Employees International Union
Healthcare Minnesota (SEIU). Accordingly, the bureau of mediation services ( BMS)
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certified SEIU as the exclusive representative of the state-wide bargaining unit. SEIU and
the PCAs in the bargaining unit entered into a collective bargaining agreement for the
period of July 1, 2015, to June 30, 2017.
The relators in this appeal are seven PCAs who are members of the bargaining unit
but wish not to be represented by SEIU. They filed a decertification petition with BMS in
early December 2016. Before doing so, they attempted to contact other PCAs in the
bargaining unit to solicit support for their decertification effort. In May 2016, they asked
both BMS and the department of human services (DHS) for a list of PCAs in the bargaining
unit, which would allow them to contact PCAs and obtain signatures on authorization cards
to indicate support for decertification. BMS provided relators with a list that had been
created for purposes of the certification election in 2014 . That list was outdated and,
according to relators, had numerous other data-quality problems that impeded relators ’
ability to contact PCAs in the bargaining unit. In September 2016, DHS provided relators
with a revised list, but the revised list was over -inclusive in that it included many PCAs
who were not in the bargaining unit because they did not provide the type of services
described in the statute. See Minn. Stat. § 179A.54, subd. 1(b) (defining “individual
provider” as defined in Minn. Stat. § 256B.0711, subd. 1(d) (2016)).
In October 2016, the petitioning PCAs commenced a lawsuit against BMS and DHS
in the Ramsey County District Court. Their claim against DHS was based on its statutory
obligation to compile and maintain a list of PCAs who have provided personal-care
services to Medicaid recipients and received payment for such services within the previous
six months. See Minn. Stat. § 256B.0711, subd. 4(f) (2016). Their claim against BMS was
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based on its statutory obligation to make DHS’s list publicly available if the list is available
to unions. See Minn. Stat. § 179A.54, subd. 9 (20 16). Ten days later, t he district court
ordered DHS to give relators a current list of PCAs in the bargaining unit. See Greene v.
Bureau of Mediation Servs. , A16-1863, 2017 WL 3122343 (Minn. App. July 24, 2017).
DHS subsequently provided relators with a series of three revised lists , but each was
deficient in some respect: the third list was incomplete, and the fourth and fifth lists did not
include home addresses or telephone numbers, as required by the district court’s order. On
November 29, 2016, DHS provided relators with a sixth list, which included 27,361 PCAs
whom DHS deemed to be members of the bargaining unit. Relators then began making
telephone calls to persons on the list.
Relators filed a decertification petition with BMS three days later, on December 2,
2016, the last day on which relators could do so within the statutorily required 60 -day
period. See Minn. Stat. § 179A.12, subd. 4. With their petition, relators submitted 2,596
authorization cards signed by PCAs who indicated that they favored decertification. In
their petition, relators alleged that the bargaining unit consisted of approximately 8,000
PCAs. If there were 8,000 PCAs in the bargaining unit, the 2,596 PCAs who signed
authorization cards would constitute 32.5 percent of the unit, thereby satisfying the 30 -
percent threshold.
On December 6, 2016, BMS issued an order stating that relators’ petition was timely
and that they had made a sufficient showing of interest to warrant a decertification election.
The following day, SEIU asked BMS to reconsider the matter. SEIU asserted that relators
had understated the number of PCAs in the bargaining unit and that the actual number was
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27,361, which is the number of PCAs included in DHS’s sixth list . If there were 27,361
PCAs in the bargaining unit, the 2,596 PCAs who signed authorization cards would
constitute only 9.5 percent of the unit, thereby falling below the 30-percent threshold.
On December 9, 2016, relators responded to SEIU’s motion for reconsideration.
Relators submitted five affidavits executed by persons who attempted to contact persons
included in the first list of PCAs , which had been complied in 2014 and was provided to
relators in May 2016 . Those five affidavits identify certain addresses that could not be
found, certain addresses that did not contain residences, and certain addresses for
residences that were not occupied. Relators also submitted an affidavit executed by an
attorney that summarizes efforts to contact persons included in the sixth list of PCAs, which
was provided to relators in November 2016. That affidavit states, among other things, that
9,579 telephone calls had been made after relators received DHS’s sixth list and that callers
had connected with 480 of the persons called. The attorney’s affidavit also states that 17.08
percent of the persons reached stated that they were not a PCA and that 11.46 percent of
the persons reached stated that they performed home -based health -care services that
excluded them from the bargaining unit. The attorney’s affidavit further states that only
1,955 names were on both the first list from May 2016 and the sixth list from November
2016, and that 10,958 names were on both the second list from September 2016 and the
sixth list from November 2016. The attorney’s affidavit concludes by stating the affiant’s
conclusion that the bargaining unit consists of approximately 8,000 to 8,500 persons.
On December 13, 2016, BMS’s commissioner issued a six-page order granting
SEIU’s request for reconsideration. The order states, “For the purpose of determining a
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showing of interest in this matter, the relevant list shall be the November 29, 2016 list
provided by DHS.” The order required DHS to submit, within six days, “a summary
explaining how [DHS] determined who i s included in the bargaining unit” and required
relators to submit, within 14 days, “substantial evidence demonstrating that its estimate of
approximately 8,000 eligible bargaining employees is accurate.”
DHS responded with a four-page letter describing the process by which it prepared
the sixth list. Relators also responded with a four -page letter, which noted that the sixth
list was not current because it include d active PCAs as of October 2016, not November
2016, as required by statute in light of relators’ filing of a decertification petition in early
December 2016. See Minn. Stat. § 256B.0711, subd. 4(f). In response to BMS’s request
for substantial evidence, relators primarily relied on their previous submissions. With their
response, r elators submitted 289 additional authorization cards signed by PCAs who
support the decertification petition. Relators concluded by asking BMS “to conduct a
thorough and complete investigation and hearing” and to allow them six additional months
to supplement their showing of interest. In January 2017, relators submitted 1,642
additional authorization cards signed by PCAs who support the decertification petition.
On February 7, 2017, BMS ordered DHS to submit a list of PCAs as of
November 30, 2016. DHS did so on February 8, 2017, by submitting a seventh and final
list that includes 28,144 PCAs . On February 10, 2017, BMS’s commissioner issued a
three-page order, which states that, based on the seventh list, relators “failed to submit the
requisite 30 percent showing of interest” and that the decertification petition is dismissed.
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Ten days later, relators requested reconsideration of the dismissal. They argued ,
among other things, that they had been prejudiced by not receiving an accurate list of
members of the bargaining unit on a timely basis and that BMS had not conducted an
investigation or a hearing as required by law. On April 21, 2017, BMS’s acting
commissioner issued a seven-page order that denied relators’ request for reconsideration.
Relators seek judicial review of BMS’s decision pursuant to a writ of certiorari.
Both BMS and SEIU have appeared in this court as respondents.
D E C I S I O N
Relators argue that BMS erred by dismiss ing their decertification petition and
denying their request for reconsideration. Their argument has two parts. First, they argue
that BMS erred by not conducting an appropriate investigation and by not conducting a
hearing. Second, they argue that BMS erred by not timely providing them with an accurate
list of bargaining-unit members and not ordering DHS to do so . They ask this court to
remand the matter to BMS for further investigation or a hearing or both.
“An appellate court may reverse an agency decision if the decision reflects an error
of law, if it is arbitrary, or if its findings are unsupported ” by substantial evidence. In re
Decertification of an Exclusive Representative of Certain Emps . of the Univ ersity of
Minnesota, Unit 9, 730 N.W.2d 300, 303 (Minn. App. 2007). “Substantial evidence is such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Patzwald v. Pub lic Emp’t Relations Bd. , 306 N.W.2d 118, 120 (Minn. 1981) (internal
alterations and quotation omitted) . The burden of establishing a lack of substantial
8
evidence is on the party challenging the agency decision. Reserve Mining Co. v. Herbst ,
256 N.W.2d 808, 825 (Minn. 1977).
A ruling is arbitrary and capricious if an agency: (a) relied on
factors not intended by the legislature; (b) entirely failed to
consider an important aspect of the problem; (c) offered an
explanation that runs counter to the evidence; or (d) the
decision is so implausible that it could not be explained as a
difference in view or the result of the agency’s expertise.

In re Review of 2005 Annual Adjustment of Charges for all Elec. & Gas Utils., 768 N.W.2d
112, 118 (Minn. 2009) (quotation omitted). “The agency decision will be presumed correct
and an appellate court will defer ‘to the agency’s expertise and special knowledge in the
field of its technical training, education, and experience.’” In re Petition for Clarification
of an Appropriate Unit, 660 N.W.2d 467, 469-70 (Minn. App. 2003), review denied (Minn.
July 15, 2003).
A.
Relators first argue that BMS’s decision to dismiss their petition without further
investigation and without a hearing “is un supported by substantial evidence, based upon
errors of law, and is arbitrary and capricious.”
As stated above, a prerequisite to a decertification election is a showing that “at least
30 percent of the employees wish to be unrepresented.” Minn. Stat. § 179A.12, subd. 3.
“Evidence of a showing of interest in the form of authorization signatures must accompany
all petitions .” Minn. R. 5510.0 710, subp. 2. If a decertification petition is filed, “the
commissioner shall hold hearings or conduct an investigation as required.” Minn. R.
5510.1910, subp. 4. If BMS conducts a hearing, “Evidence of a showing of in terest may
9
continue to be submitted up to the close of the hearing.” Minn. R. 5510.0710, subp. 2. At
a hearing, all parties “shall have the right to present evidence, rebuttal testimony and
argument on the issues, and to cross-examine witnesses.” Minn. R. 5510.1910, subp. 8.
In its order denying relators’ request for reconsideration, BMS initially noted that
relators had submitted additional authorization cards on three occasions after filing their
petition and that BMS had accepted those additional card s. The total number of cards
submitted by relators before BMS’s February 10, 2017 dismissal was 4,527. BMS’s
April 21, 2017 order also states that BMS “conducted an appropriate investigation . . . by
requiring the parties to submit written arguments conc erning the showing of interest” and
by “carefully consider [ing] the arguments of both parties .” The order states that BMS
“obtained a list of eligible voters from DHS and asked DHS to submit a detailed
explanation of the methods used to create the list” and that BMS counted the authorization
cards and “determined that the Petitioners’ showing of interest was inadequate.” The order
concludes by stating that BMS “used its discretion appropriately to decide that the list was
reasonably reliable for purposes of establishing the showing of interest, and a hearing was
not necessary.”
We begin our analysis by considering BMS’s and SEIU’s responsive arguments that
no further investigation or hearing was required because DHS’s list is, as a matter of law,
conclusive such that BMS was required to accept it. Respondents rely on a statute that
states, “ The individual providers eligible to vote in any such election shall be those
individual providers on the monthly list of individual providers compiled . . . most recently
preceding the filing of the election petition. ” Minn. Stat. § 179A.54, subd. 10. But the
10
statute requiring a 30 -percent showing of interest does not refer to the DHS list and does
not refer to PCAs who are eligible to vote in a decertification elect ion. Rather, the statute
requires a showing of interest of 30 percent of “employees” in the established unit. Minn.
Stat. § 179A.12, subd. 3. In this particular context, the employees in the established unit
are the PCAs who provide services to participants of the relevant programs. Minn. Stat.
§ 179A.54, subd. 2; see also id., subd. 1 (referring to Minn. Stat. § 256B.0711, subd. 1(d)).
The list that DHS is required to compile and maintain consists of PCAs “who have been
paid for providing direct support services to participants within the previous six months.”
Minn. Stat. § 256B.0711, subd. 4(f). A PCA may be included in a list maintained pursuant
to section 256B.0711, subdivision 4(f), even if he or she has ceased performing serv ices,
in which event he or she no longer would be an “employee.” Furthermore, BMS’s actions
demonstrate that BMS did not consider the DHS list to be determinative. BMS required
DHS to submit information concerning the process by which DHS had prepared the list.
Thereafter, BMS considered DHS’s explanations and determined that the list is
“reasonably reliable.”
Relators’ argument is based on an administrative rule that states, “ Upon receipt of
a petition, the commissioner shall hold hearings or conduct a n investigation as required.”
Minn. R. 5510.1910, subp. 4. No precedential opinion specifies when an investigation or
hearing is “required.” 1 Common sense suggests that an investigation or a hearing would

1Likewise, no non-precedential opinion specifies when an investigation or hearing
is “required.” In Minnesota Teamsters Pub. & Law Enf’t Emps., Local No. 320 v. City of
Coon Rapids, No. A12-1349, 2013 WL 1500975 (Minn. App. 2013), this court considered
an argument based on rule 5510.1910, subpart 4, and concluded that the rule does not
11
be required if there were a reasonable possibili ty that further investigation or a hearing
might result in a conclusion that the 30-percent threshold for a showing of interest has been
satisfied. At oral argument, relators’ attorney agreed that BMS need not go so far as to
determine whether every person included in a list of PCAs actually is an employee if such
a determination would not affect the ultimate conclusion as to whether a sufficient showing
of interest has been made. Rather, relators’ attorney agreed that BMS may deny a
decertification petition without determining the precise number of PCAs in the bargaining
unit if there is not a reasonable possibility that further investigation or a hearing might
result in a conclusion that the 30 -percent threshold for a showing of interest has been
satisfied.
With that practical standard in mind, we turn to the facts in the agency record to
determine whether they suggest a reasonable possibility that further investigation or a
hearing might have resulted in a conclusion that the 30-percent threshold for a showing of
interest was satisfied. At the time of BMS’s February 10, 2017 decision, relators had
submitted a total of 4,527 authorization cards supporting decertification. That number of
cards would satisfy the 30-percent threshold only if the number of employees were 15,090
or fewer. To establish that the bargaining unit consisted of 15,090 or fewer PCAs, relators
would have needed to convince BMS that at least 13,054 (or 46.38 percent) of the 28,144
PCAs on DHS’s seventh list actually were not employees when the petition was filed.

impose any particular standard on an investigation. Id. at *1; see also I n re Petition for
Clarification of Appropriate Unit , No. A03-421, 2003 WL 22999129, at *2 (Minn. App.
Dec. 23, 2003).
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In reviewing relators’ evidence, we set to one side the affidavits that cha llenged a
substantial number of addresses that were included in the first list, which was prepared in
2014. As all parties acknowledge, that list was outdated. Accordingly, it would not be
reasonable to assume that the degree of inaccuracy inherent in the first list is present in the
sixth list or the seventh list, which were current as of September 2016 and November 2016,
respectively.
In reviewing relators’ evidence concerning the number of employees in the
bargaining unit, we focus on the evidence that tends to show that fewer than all 28,144
persons on DHS’s seventh list are PCAs within the bargaining unit. Relators’ attorney’s
affidavit states that 28.54 percent of the persons who were contacted responded by
indicating that they were not a member of the bargaining unit. Assuming that statement to
be representative of all PCAs would imply that the size of the bargaining unit is 28.54
percent smaller than represented by the seventh list, i.e., that the bargaining unit consists
of 20,112 PCAs. If that were so, the 4,527 authorization cards submitted by relators as of
February 10, 2017, would reflect a showing of interest of 22.51 percent, which still would
be below the 30-percent threshold.
Given the evidence in the agency record, there is not a reasonable possibility that,
if all 28,144 persons on DHS’s seventh list had been contacted, a sufficient number of them
would have been determined to not actually be in the bargaining unit. As stated above,
46.38 percent of the pe rsons on the seventh list would need to be struck before the
bargaining unit would be small enough to allow relators to satisfy the 30-percent threshold
with 4,527 authorization cards . There is no indication in the record that relators’ sample
13
of 480 persons was so unrepresentative of the entirety of the seventh list. Likewise, there
is no evidence in the record as to the probability that , despite the 28.54 percent reduction
suggested by relators’ sample of 480 persons , the bargaining unit could, after fu rther
investigation or a hearing, be reduced by 46.38 percent or more to achieve an accurate
count of members of the bargaining unit. In the absence of statistical evidence, BMS had
no basis from which to determine, even by rough approximation or extrapolation, that the
bargaining unit actually is as small as 20,112, which would be necessary for relators to
prevail in their showing of interest.
In addition, we are aware that BMS was operating under practical time constraints.
If a union is decertified, the decertification is effective at the conclusion of the term of the
then-current collective-bargaining agreement. Minn. R. 5510.2310, subp. 2. In this matter,
the collective -bargaining agreement between SEIU and the bargaining unit was due to
expire on June 30, 2017. It would have been preferable for BMS to determine the need for
a decertification election early enough that an election could be conducted in the first half
of 2017. If BMS were to make such a determination that would cause an election to be
held in the second half of the year, and if the eligible voters were to approve decertification,
a decertified union would continue to represent non -consenting members for nearly two
years. Although BMS did not so state in any of its orders , we presume that BMS sought
to resolve relators’ petition well before the expiration of the 2015-2017 contract and before
the usual time for contract negotiations.
Furthermore, we are mindful of the special deference that is owed to administrative
agencies when they engage in discretionary decisions that implement their own
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administrative rules. See Resident v. Noot, 305 N.W.2d 311, 312 (Minn. 1981). The rule
on which relators’ argument is based provides that “the commissioner shall hold hearings
or conduct an investigation as required.” Minn. R. 5510.1910, subp. 4 (emphasis added).
Given the evidence in the agency record, we cannot say that BMS acte d arbitrarily or
capriciously by concluding that further investigation or a hearing was not required.
Relators also rely on a statute that provides as follows:
The commissioner shall, upon receipt of an employee
organization’s petition to the commissioner under
subdivision 3, investigate to determine if sufficient evidence of
a question of representation exists and hold hearings necessary
to determine the appropriate unit and other matters necessary
to determine the representation rights of the affected
employees and employer.

Minn. Stat. § 179A.12, subd. 5 (emphasis added). Relators’ reliance on this statute is
misplaced because the statute does not apply to a decertification petition. By its plain
language, the statute applies only to a certification p etition filed by an employee
organization, i.e., a union. See Minn. Stat. § 179A.03, subd. 6 (defining “e mployee
organization” to mean “ any union or organization of public employees whose purpose is
. . . to deal with public employers concerning grievance s and ter ms a nd conditions of
employment”).
Thus, we conclude that BMS did not err by dismissing relators’ petition without
further investigation and without a hearing.
B.
Relators also argue that BMS erred by not providing them with an accurate list of
bargaining-unit members in a timely manner and by not ordering DHS to do so. They
15
contend that BMS’s decision “failed to account for the fact that Relators were illegally
denied access to a timely, updated, and accurate list of PCAs within the bargaining unit.”
As stated above, DHS is obligated by statute to “compile and maintain a list of the
names and addresses of all individual providers who have been paid for providing direct
support services to participants within the previous six months.” Minn. Stat. § 256B.0711,
subd. 4(f). DHS also is obligated by statute to “share the lists with others as needed for the
state to meet its obligations under [PELRA] and made applicable to individual providers
under sec tion 179A.54, and to facilitate the representational processes under section
179A.54, subdivisions 9 and 10.” Id. DHS’s obligation to share the lists with BMS allows
BMS to satisfy its obligation to “provide lists compiled under section 256B.0711,
subdivision 4, paragraph (f), upon request, to any exclusive representative of individual
providers.” See Minn. Stat. § 179A.54, subd. 9. Indeed, the statute expressly requires DHS
to share the lists with BMS: “ To facilitate operation of this section, the comm issioner of
human services shall provide all lists to the commissioner of the Bureau of Mediation
Services, upon the request of the commissioner of the Bureau of Mediation Services. ” Id.
Furthermore, if BMS has made the list “available to an employee org anization under this
subdivision, the list must be made publicly available ,” which means that PCAs such as
relators have a right to the list. Id.
In its order denying relators’ request for reconsideration, BMS acknowledged
relators’ difficulties in contac ting members of the bargaining unit. BMS commented, “It
is well recognized that the workforce of individual providers is different from that of a
typical workforce” because they generally “do not report to a common workplace or
16
maintain a traditional busi ness address” and because they “often come in and out of the
bargaining unit as they work multiple jobs.” Accordingly, BMS stated that the “most
reasonable explanation for Petitioners’ difficulties in contacting individual providers is the
very nature of the ever-changing workforce, not that the DHS lists misstated the number
of individual providers by a magnitude so great that Petitioners’ showing of interest
reached the required 30 percent.” BMS also stated that relators were given an opportunity
to sup plement their showing of interest after they filed their petition. BMS noted that
relators submitted additional authorization cards on three occasions and that such cards
were considered by BMS.
To be sure , mistakes were made with respect to the list, and those mistakes
undoubtedly impeded relators’ attempt s to garner support for their decertification effort
before the applicable statutory deadline . Relators ultimately received a proper list, albeit
long after their first request. It appears that relators received a proper list only because they
diligently sought relief in the Ramsey County District Court, which promptly granted the
relief sought. See Greene, A16-1863, 2017 WL 3122343. Relators’ brief appropriately
notes that “this issue has already been decided by the district court in Greene.” Even so,
relators had very little time to work with the sixth list before the statutory deadline for filing
their decertification petition, and practically no time to work with the seventh list before
BMS issued its February 10, 2017 order.
We are mindful that BMS was not primarily responsible for relators’ inability to
obtain a proper list when they first requested it. DHS was and is the entity within state
government with the statutory obligation to “compile and maintain” a list of eligible voters.
17
See Minn. Stat. § 256B.0711, subd. 4(f). BMS was and is obligated to share the list with
unions and the general public, but BMS cannot do so unless and until it has received the
list from DHS. See Minn. Stat. § 179A.54, subd. 9. We understand that this bargaining
unit is unusual in nature and that the list had not previously been compiled since the
statutory obligation was imposed in 2013. Yet the need for such a list was foreseeable.
We trust that, now that a list has been complied, DHS will continue to maintain it in a
manner that ensures that any future requests will be satisfied promptly.
Relators contend that BMS “failed to account for the fact that Relators were illegally
denied access to a timely, updated, and accurate list of PCAs within the bargaining unit.”
We disagree. BMS’s orders frequently expressed an awareness of the delays in providing
relators with the lists to which they were due . BMS allowed relators to supplement their
initial showing of interest on three occasions over a period of more than two months, and
the additional authorization cards that they submitted were considered and counted before
BMS made its final agency decision.
Relators’ second argument appears to be based on an implicit premise that any
prejudice to their ability to make a showing of interest must result in a judicial remedy.
Relators have not cited caselaw to support such a premise. Furthermore, relators’ second
argument is complicated by practical realities. It is difficult to conceive of a remedy that
is not unduly prejudicial to the interests of those PCAs who prefer to remain members of
SEIU and to SEIU itself.
18
Thus, we conclude that BMS did not commit reversible err by not providing relators
with an accurate list of bargaining -unit members in a timely manner or by not ordering
DHS to do so.
C.
BMS filed a motion to strike before oral argument. BMS seeks to st rike pages 12-
27 and pages 49-69 from relators’ addendum on the ground that those documents are not
in the agency record. Because our analysis of the issues and our resolution of the appeal
is not affected by these documents, we deny the motion as moot.
Affirmed; motion to strike denied.