In the Matter of a Petition for Clarification of an Appropriate Unit Hibbing Police Federation, Hibbing, Minnesota, Relator,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-1157

In the Matter of a Petition for Clarification of an Appropriate Unit Hibbing Police
Federation, Hibbing, Minnesota,
Relator,

vs.

City of Hibbing, Minnesota,
Respondent,

Minnesota Association of Professional Employees, Shoreview, Minnesota,
Respondent,

Bureau of Mediation Services,
Respondent.

Filed June 8, 2020
Affirmed
Connolly, Judge

Bureau of Mediation Services
File No. 19PCL0220

Robert J. Fowler, Fowler Ditsch, LLC, Little Canada, Minnesota (for relator)

Richard E. Prebich, Hannah N. Casey Forti, Prebich Law Office, P.C., Hibbing, Minnesota
(for respondent City of Hibbing)

Keith Ellison, Attorney General, Corinne Wright -MacLeod, Assistant Attorney General,
St. Paul, Minnesota (for respondent Bureau of Mediation Services)

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Considered and decided by Connolly, Presiding Judge; Larkin, Judge; and Cochran,
Judge.
U N P U B L I S H E D O P I N I O N
CONNOLLY, Judge
Relator-union challenges a unit clarificat ion order issued by respondent Bureau of
Mediation Services (the BMS) that declined to remove police captains from a bargaining
unit that included other police officers and transfer them to a proposed new unit, arguing
that (1) the BMS failed to apply the correct legal standard, (2) the proposed unit should
have been ce rtified, and (3) alternatively, the BMS’s finding that the captains were not
supervisory was erroneous and arbitrary and capricious. Because the finding that the
captains are not supervisory is not erroneous or arbitrary and capricious, and there is no
basis to remove them from their current unit or to establish the proposed unit, we affirm.
FACTS
Relator Hibbing Police Federation (HPF) is a single bargaining unit that includes all
Hibbing police officers except the chief of police, i.e., captains, patr ol officers, and
sergeants. Respondents are the City of Hibbing (Hibbing), which employs all Hibbing
police officers, and the BMS, which, through its hearing officer (HO), was the decision-
maker in the conflicts between HPF and Hibbing.
In September 2018, the members of HPF voted to have the captains removed from
the single unit that then composed HPF and formed into another unit, known as the
“Captains’ Unit,” which would have been a second unit in HPF, and not placed in the

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Minnesota Association of Pro fessional Employees (MAPE) .1 HPF filed a “petition for
clarification or amendment of appropriate unit” with the BMS, stating that the four captains
among the Hibbing police officers were essential, supervisory, and confidential; also, they
had “no communi ty of interest with [MAPE], as they are essential and licensed, and
[MAPE] has no experience with police representation, such as officer-involved shootings.”
Therefore, the captains sought to transfer to a new bargaining unit, called the Captains’
Unit, that HPF would represent as its second bargaining unit.
The BMS conducted a hearing on the petition between Hibbing and HPF ; police
captains testified at the hearing. The HO stated, “The issue, for the record, is: Is the
position of Captain in the Hibbing Police Department a supervisory or confidential
position, as the . . . terms are defined by [the Public Employment Labor Relations Act
(PELRA)]; and [if so,] what, if any, is the appropriate unit for its inclusion?”
When asked for its opening statement, HPF replied:
[W]e submitted . . . the outline of what we believe the issues
are. . . . [T]he position for the Captains in the Federation is that
the Captains are supervisory or confidential and should be
separated from the existing [HPF] all in clusive unit that exists
now, and so they seek to be represented by the same union [i.e.,
HPF] but in a Unit 2 of just Captains.
So the broad issue that you stated into the record we
believe is correct generally; but to break it down more
specifically, . . . there is no Deputy Chief position above that
of Captain. . . .
So the first way to become supervisory and confidential
is to be the department head’s next in command . . . and we
believe that the rank of Captain is that next in command as it
exists today, the date of the hearing. . . .

1 While MAPE is listed as a respondent, it takes no part in this appeal and did not submit a
brief.

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The second is that applying [Minn. Stat. § 179A.03,
subd. 17 (2018)] under PELRA of the 10 part test, we believe
the Captains easily meet more than half of those criteria [.] . . .
[W]e’re going to present evidence on those ten factors.

HPF went on to explain its view that the captains should have their own Captains’ Unit
rather than be placed in MAPE and concluded its opening statement with, “the key inquiry
is going to really be whether these folks are truly supervisory.”
Hibbing in its opening statement said its position was that “the Captains are not
supervisory, and that has been sustained by 14 years of actual practice.” The remainder of
the 293-page transcript shows that the major issue of the hearing was whether captains
were supervisory and the secondary issue was whether the captains, if supervisory, should
join MAPE or form a separate Captains’ Unit.
Hibbing and HPF submitted post -hearing briefs. Hibbing reiterated the arguments
made at the hearing on whether the captains were supervisory employees and, if so,
whether they should be placed in MAPE or form a Captains’ Unit. HPF , despite having
said at the hearing that, “assuming that the Captains are, as we will allege, supervisory,
then the question becomes is there a community of interest with MAPE,” changed its theory
of the case in its post-hearing brief and argued that the first and major issue was whether
the Captains’ Unit was “appropriate” within the meaning of Minn. Stat. § 179A.09, subd.
1 (2018) (concerning the determination of bargaining units).
The HO’s order did not address the appropriateness of the proposed Captains’ Unit
under Minn. Stat. § 179 A.09, subd. 1, perhaps because, throughout the lengthy hearing,

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neither party had indicated th at the appropriateness of that unit was an issue 2 and both
parties had agreed with the HO’s statement that the primary issue was whether the captains
were supervisory employees within the meaning of Minn. Stat. § 179A.03, subd. 17. The
HO determined that the captains were not supervisory within the meaning of the statute
and should remain within the unit represented by HPF. HPF now argues that this decision
was unreasonable.3
D E C I S I O N
“Decisions of the commissioner [of the Bureau of Mediation S ervices] relating to
supervisory, confidential, essential, and professional employees . . . may be reviewed on
certiorari by the court of appeals.” Minn. Stat. § 179A.051(a) (2018). “In a challenge to
the decision of an administrative agency requiring thi s court to construe the words of a
statute, we review the statutory interpretation de novo and then consider whether the
agency’s decision was reasonable in light of the proper meaning of the statute.” In re
Application of Hildebrandt for Duty -Related Corr. Plan Disability Benefits , 701 N.W.2d
293, 298 (Minn. App. 2005).

2 We note, however, that neither the captains’ testimony nor any other evidence indicated
that the present HPF is not an appropriate unit for captains within the meaning of Minn.
Stat. § 179A.09, and there appears to be no history of problems with contract negotiations
or employee morale.

3 Having determined that the captains were not supervisory and therefore had no reason to
leave HPF, the HO did not address either (1) whether captains should go into MAPE or
into a proposed Captains’ Unit or (2) whether the proposed Captains Unit would be
appropriate under Minn. Stat. § 179A.09, subd. 1.

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It is clear from the opening pages of the hearing transcript, quoted above, that the
HO and the parties agreed the issue was whether the captains in the Hibbing Police
Department were s upervisory employees within the meaning of Minn. Stat. § 179A.03,
subd. 17. That statute provides:
“Supervisory employee” means a person who has the authority
to undertake a majority of the following supervisory functions
in the interest of the employer: [1] hiring, [2] transfer,
[3] suspension, [4] promotion, [5] discharge, [6] assignment,
[7] reward, or [8] discipline of other employees, [9] direction
of the work of other employees, or [10] adjustment of other
employees’ grievances on b ehalf of the emplo yer. . . . [T] he
exercise of the authority by the person may not be merely
routine or clerical in nature but must require the use of
independent judgment. The administrative head of a . . . police
or fire department, and the administrative head’s assistan t are
always considered supervisory employees.

Minn. Stat. § 179A.03, subd. 17. There are ten supervisory functions listed; thus, to be
considered supervisory, a position must entail at least six of those functions.
As to supervisory functions 1, 3, 4, and 5, i.e., hiring (or employment), suspension,
promotion, and discharge, the HO relied on Minn. Stat. § 419.05 (2018), which establishes
the relati onship between the t hree-member unpaid police civil service commission and
police officers in rega rd to those four functions. “The commission shall have absolute
control and supervision over the employment, promotion, discharge, and suspension of all
officers and employees of the police department of [Hibbing] and these powers shall extend
to and include all members of the police departmen t.” Minn. Stat. § 419.05 . From this,
the HO concluded that “the Commission maintains authority over these functions and
therefore [they] are not delegated to the Captains.” In support, the HO cited the Rules and

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Regulations of the Police Civil Service Commission, presented as an exhibit at the hearing,
which details how the Commission is to handle these four functions.
As to function 8, discipline, the HO relied on the testimony of two captains. One
testified that he did not know if he had the authority to issue oral or written discipline, but
that anything he did issue would go into a separate file kept by the captains, not into the
employee’s personnel file. The other captain testified that anything in an empl oyee’s
permanent personnel file would be referred to the chief of police, not to a captain. Neither
captain testified that he had been delegated the authority to discipline, and there was no
directive in the record delegating to captains the authority to discipline. From this, the HO
concluded that captains did not perform supervisory function 8, discipline.
As to function 2, transfer, one captain testified that he would be unable to move
individuals to other departments and another captain testified that, while he had input as to
who went on which crew, captains never made the decision to move someone. No captain
claimed the ability to transfer an employee to another equal job classification. The HO
concluded that captains did not perform supervisory function 2, transfer.
As to function 10, adjustment of employee grievances, the HO relied on the
collective bargaining agreement, which in Step 1 of its grievance procedure refers to a
grievance supervisor or representative designated by the employer. There was no evidence
as to who, if anyone had been designated to perform this function. One captain testified
that he had no authority over contract violations; two others did not address the issue. No
evidence indicated that captains were trained in adjust ing grievances or knew how to do

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so, and the chief of police testified that Step 1 grievances went to the chief of police. The
HO concluded that captains did not perform supervisory function 10, grievance adjustment.
The HO ultimately concluded that func tions 1, 3, 4, and 5 were performed by the
commission, not by captains; that functions 2, 8, and 10 had not been delegated to captains
by their emp loyer; and that only functions 6, 7, and 9 had been delegated to captains.
Therefore, the HO concluded that captains do not perform the majority of supervisory
functions required to be designated as supervisory personnel under Minn. Stat. § 179A.03,
subd. 17. We agree.
The HO also addressed HPF’s argument that the four captains were supervisory
because, in the absence of a deputy chief of police, they were all second-in-command after
hours and were therefore “administrative head’s assistant[s].” See Minn. Stat. § 179A.03,
subd. 17 (providing that administrative heads and their assistants are always designated as
supervisory). The chief of police stated that she had been hoping to hire a deputy, that the
process had begun, and that she herself had assumed the deputy’s duties. One of the police
commissioners testified that the commission intends to hire a deputy . The HO noted that
the statute refers to “administrative head’s assistant” in the singular and that the BMS had
consistently held that the post is a single individual, not a group of individuals having the
same rank. The argument that all four captains are equivalent to a deputy chief of police
and are therefore supervisory is unpersuasive.
The HO’s determination that, as non supervisory employees, the captains should
remain in the HPF is supported by the statute and the record.

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In any event, HPF’s reliance on Minn. Stat. § 179A.09, subd. 1, is misplaced. That
statute provides:
In determining the appropriate unit, the commissioner shall
consider the principles and the coverage of uniform
comprehensive position classification an d compensation plans
of the employees, professions and skilled crafts, and other
occupational classifications, relevant administrative and
supervisory levels of authority, geographic al location, history,
extent of organization, the recommendation of the pa rties, 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.

Minn. Stat. § 179A.09, subd. 1. But the issue here is not the determination of a bargaining
unit: it is moving employees who are already in a unit to one of two other units, i.e., MAPE
or the proposed Captains’ Unit. As HPF said at the hearing, the issue of what unit the
Captains should join arises only after the Captains are determined to be supervisory and
therefore excluded from the current HPF unit.
HPF argues that “[o]bviously, [Minn. Stat. § 179A.09, subd. 1] is the statute that
governs hearings for Unit Clarification such as this,” but HPF offers no sup port for that
argument. Moreover, this court has rejected the argument, although in an unpublished and
therefore nonprecedential opinion.
Despite dicta in several cases from this court that suggest
otherwise, the community -of-interest factors set out in Minn.
Stat. § 179A.09 are not relevant and do not apply to petitions
seeking to clarify a unit by determining whether certain
employees are supervisory. See, e.g. , In re Petition for
Clarification of Appropriate Unit , 555 N.W.2d 552, 554
(Minn. App. 1996) (discussing community of interest criteria
in certiorari appeal from commissioner’s order prohibiting
confidential supervisory employee from remaining in
supervisory bargaining unit); Local No. 320 [v. County of

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McLeod, 509 N.W.2d 554, 556 (Minn. App. 19 93)] (citing
community of interest criteria on review of commissioner’s
order concluding that employee was supervisory and thus
member of unit composed of supervisory employees).
Sch. Serv. Emp s. Local 284 v. Indep. Sch. Dist. No. 281 , No. C6 -01-2219, 2002 WL
1013767 at *2 (Minn. App. May 21, 2002). We are persuaded by that analysis.
The HO correctly addressed whether the captains are supervisory, determined under
the relevant statute that they are not, and ordered that they remain in the current HPF unit.
This decision was reasonable.
Affirmed.