In the Matter of: American Federation of State, County, and Municipal Employees, Council 5, Relator,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-1009

In the Matter of: American Federation of State, County, and Municipal Employees,
Council 5,
Relator,

vs.

Ramsey County,
Respondent,

State of Minnesota Public Employment Relations Board,
Respondent.

Filed April 4, 2022
Affirmed
Reilly, Judge

Public Employment Relations Board
File No. 21-U-019

Josie Hegarty, AFSCME Council 5, South St. Paul, Minnesota (for relator)

John J. Choi, Ramsey County Attorney, Elisabeth Brady, A ssistant County Attorney, St.
Paul, Minnesota (for respondent county)

Jill Kielblock, Interim Executive Director, Public Employment Relations Board, St. Paul,
Minnesota (respondent)

Considered and decided by Slieter, Presiding Judge; Reilly, Judge; and Rodenberg,
Judge.
*

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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NONPRECEDENTIAL OPINION
REILLY, Judge
In this certiorari appeal, relator union challenges a decision by respondent Public
Employment Relations Board to dismiss a charge of unfair labor practice the relator union
brought against respondent Ramsey County. We affirm.
FACTS
Relator American Federation of State, County, and Municipal Employees, Council
5 (the union) represents nearly all of the 80 employees of responde nt Ramsey County’s
Workforce Solutions Department, which provides employment and training services to job
seekers and businesses. The most recent collective bargaining agreement covering
department employees was in effect from January 2018 through December 2020.
The parties began negotiating a new agre ement in September 2020. During
negotiations, the county proposed updates to the Alternativ e Work Schedule Policy in an
appendix to the agreement (the policy). The policy defined regu lar business hours and
identified when deviations may be authorized . The policy stated expressly: “a workday
cannot exceed 10 hours.” The county proposed removing that language, asserting that it
was redundant because the policy specifically defined work schedules as either 8 hours per
day/5 days per week or 10 hours per day/4 days per week. The union objected to four items
in the county’s propos ed changes to the policy, includ ing the proposal to remove the
language that “a workday cannot exceed 10 hour s.” Although the co unty agreed to add
back the language that “a wo rkday cannot exceed 10 hours,” it did not accept all four of
the union’s demands and the union responded that its four objections were “all or nothing.”
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In a mid-November 2020 email exchange, a union representative offered edits to the
county’s proposed changes to the policy. The county considered the union’s edits but
rejected them in substance. The union resp onded, “Unfortunately, if the employer is
unwilling to accept the union’s edits, we will wit hdraw the issue.” On a shared master
tracking sheet titled “Issues and Current Status,” mediators noted under the “Hours of
Work” issue, “[County] drafted policy; i ssue dropped by union 11/1 9/2020.” Later the
parties submitted a document titled “Final Reso lutions on All Issues.” In the “Hours of
Work” section, it stated that the policy update had been shared with the union and the issue
had been resolved.
The parties reached a tent ative agreement in Decembe r. The union submitted the
proposed contract to its members for ratifica tion. But because the final language of the
new agreement was not yet available, the un ion summarized the changes to its members,
noting that the policy was still being updated. Th e union ratified the new agreement in
mid-December and the county approved it on December 22. When the final written
agreement was circulated to the parties, th e union realized that the language “a workday
cannot exceed 10 hours” had been removed from the policy. Based on that omission, the
union declined to sign the written agreement.
The union filed unfair-labor-practice charges with respondent Public Employment
Relations Board (PERB) 1 against the county alleging, in part, that the county failed to

1 PERB investigates and resolves claims of unfair labor practice under the Public
Employment Labor Relations Act (PELRA) for all public employers and their employees
across the State of Minnesota. Minn. Stat. §§ 179A.01-.60 (2020).
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negotiate in good faith on a subject of mandat ory bargaining. The union argued that it
rejected the county’s proposed changes to the policy and the proposed changes were
dropped by both parties.
PERB observed that the union appeared to believe that when it withdrew “the issue”
of the 10-hour workday, it withdrew it on behalf of both parties. The union also believed
that its withdrawal of “the issue” would preclude any amendments to the policy relating to
the union’s four original objections. PERB found that the union did not have the authority
to withdraw the county’s proposal. PERB also found that the county reasonably interpreted
the union’s November 19 email to say that it was dropping its opposition to the four earlier-
disputed items. PERB concluded that the union’s claim had no reasonable basis in law or
fact and dismissed the union’s unfair-labor-practice charge.
Relator appeals to this court by writ of certiorari.
DECISION
I. Great deference is afforded to agency decisions.
We review decisions from agencies such as PERB to determine “whether the order
or determination was arbitrary, oppressive, unreasonable, fraudulent, under an erroneous
theory of law, or without any evidence to support it.” Eneh v. Minn. Dep’t of Health, 906
N.W.2d 611, 614 (Minn. App. 2018). An admi nistrative agency’s decision is presumed
correct and we “defer to an agency’s conclusions in the area of its expertise.” In re
Reichmann Land & Cattle, LLP, 867 N.W.2d 502, 512 (Minn. 2015) (quotation omitted).
When we review the decision of an administ rative agency, we will re verse or modify the
decision only if the decision was unconstitutional, in excess of the agency’s statutory
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authority or jurisdiction, ba sed on unlawful procedure, based on an error of law,
unsupported by substantial evidence, or arbitrary or capricious. Minn. Stat. § 14.69 (2020);
see also Eneh, 906 N.W.2d at 614.
Applying this deferential standard, we vi ew the agency’s factual findings “in the
light most favorable to the decision” and “will not disturb those findings if there is evidence
reasonably tending to sustain them.” Lewison v. Hutchinson, 929 N.W.2d 444, 451 (Minn.
App. 2019) (quotations omitted). In determ ining whether a decision is arbitrary or
capricious we look at whether the agency “(a) relied on factors not intended by the
legislature; (b) entirely failed to consider an important aspect of th e problem; (c) offered
an explanation that runs counter to the evidence; or (d) the de cision is so implausible that
it could not be explained as a difference in view or the result of the agency’s expertise.” In
re Schmalz, 945 N.W.2d 46, 54 (Minn. 2020) (quotation omitted).
II. PERB’s decision is not arbitrary or capricious and is supported by substantial
evidence in the record.

On appeal, the union argues that PERB erred in three ways. First, the union asserts
that because the policy deals with a subject of mandatory bargaini ng, mutual agreement
was needed to amend it. Second, the union c ontends that the county waived any right it
may have had, as a matter of inherent managerial policy, to alter the policy without
negotiation. Finally, the union argues that ev en if the policy falls within the county’s
inherent managerial policy, it cannot be modified at will. We address the union’s first
argument in section A, and the second and third arguments in section B.

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A. Mandatory subject of bargaining
The union first contends that the policy deals with a mandatory subject of bargaining
and that the county failed to argue in good faith when it removed the language about
allowable hours of work absent agreement by the union. Under PELRA, public employers
are prohibited from “refusing to meet and negotiate in good faith with the exclusive
representative of its employees.” Minn. Stat. § 179A.13, subd. 2(5) (2020). A unilateral
change by an employer to th e terms and conditions of empl oyment violates employees’
collective bargaining rights when the change affects a mandatory bargaining term and
conflicts with the parties’ past practices. Law Enf’t Labor Servs., Inc. v. Sherburne County,
695 N.W.2d 630, 637 (Minn. App. 2005). But the obligation to meet and negotiate in good
faith does not require a public employer to agre e or concede to proposed changes. Minn.
Stat. § 179A.07, subd. 2(a) (2020).
Here, the record shows that the parties actively negotiated changes to the policy
from September to November 2020. The coun ty first proposed changes to the policy
language in September 2020, including re moving the language that a workday cannot
exceed 10 hours. PERB found that the county reasonably believed th e language to be
redundant because the policy al ready specified eight-hour da ys or ten-hour days. The
union voiced its disagreement and requested that the language be kept in the policy. The
union also suggested other modifications to the policy and the county agreed to incorporate
some of them, but the union maintained that the changes were “all or nothing.” Thus, there
is no evidence in the record that the county re fused to negotiate in good faith over the
language in the policy.
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Additionally, a union may waive the statut ory right to negotiate using “clear and
unmistakable language.” Law Enf’t Labor Servs., Inc. , 695 N.W.2d at 638 (quotation
omitted). In November 2020, the county sent the union an updated draft of the policy that
did not include the language “a workday cann ot exceed 10 hours.” The union sent a
counteroffer, the county rejected it in substance, and the union then withdrew “the issue.”
PERB found that the county r easonably believed that the un ion withdrew its objections
when the union emailed the c ounty stating: “if the employer is unwilling to accept the
union’s edits, we will withdraw the issue.” Mediators noted on a master tracking sheet
titled “Issues and Current Status,” after the subject line Hours of Work: “[County] drafted
policy; issue dropped by union 11/19/2020.”
The union argues that when it “withdrew” the issue of the length of the workday, it
did not waive the right to negotiate on the issu e. But we agree with PERB that it was
reasonable for the county to interpret “we will withdraw the issue” in the context of other
records and communications to mean that the union no lo nger contested the issue and
waived its objection. For these reasons, PERB’s finding that the county did not unilaterally
change the agreed-upon language is supported by substantial evidence and is not arbitrary
or capricious.
B. Employee work hours as a matter of inherent managerial policy
The union also argues that PERB erred in characterizing employee work hours as a
matter of inherent managerial policy such that the county did not have to negotiate before
making changes. See Minn. Stat. § 179A.07, subd. 1 ( 2020) (providing that public
employers need not negotiate over “matters of inherent managerial policy”). But the union
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appears to be misreading PERB ’s analysis about whether th e policy involves a matter of
inherent managerial policy. PERB determined that the county did not unilaterally change
the parties’ agreement, and, in a footnote, st ated simply that “[w]e express no opinion on
whether [the policy] . . . was a previously-negotiated Memorandum of Understanding or a
unilateral employer policy with in its managerial authority under PELRA.” Although
PERB cites cases that discuss the length and timing of shifts as matters of inherent
managerial policy, PERB expressly disclaimed a determination whether the original policy
fell within inherent managerial policy. And the county does not appear to argue that the
policy is not subject to mandatory bargaining. Thus, whether the policy could fall within
inherent managerial policy is not properly be fore us. For the same reason, we need not
resolve the union’s third argument that, if the change was made as a matter of inherent
managerial policy, it was procedurally defective. Because there is no decision or argument
that the policy change was ma de as a matter of inherent ma nagerial policy, resolution of
this argument is unnecessary and would require speculation.
Based on the reasons above, we conclude that PERB’s finding that the union waived
its right to bargain on changes to language in the policy is supported by substantial evidence
and is not arbitrary or capricious.
Affirmed.