Law Enforcement Labor Services, Inc., Brooklyn Center, Minnesota, 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This opinion is nonprecedential except as provided by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
A22-1119

Law Enforcement Labor Services, Inc., Brooklyn Center, Minnesota,
Relator,

vs.

City of St. Cloud, Minnesota,
Respondent,

International Association of Machinists & Aerospace Workers, Vadnais Heights,
Minnesota,
Respondent,

Bureau of Mediation Services,
Respondent.

Filed April 3, 2023
Reversed and remanded
Slieter, Judge

Bureau of Mediation Services
File No. 21PRE0388

Mark J. Schneider, Kimberley K. Peyton Sobieck, Law Enforcement Labor Services, Inc.,
Brooklyn Center, Minnesota (for relator)

Renee Courtney, St. Cloud City Attorney, Kevin M. Voss, Assistant City Attorney, St.
Cloud, Minnesota (for respondent City of St. Cloud)

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

Considered and decided by Connolly, Presiding Judge; Larkin, Judge; and Slieter,
Judge.
2
NONPRECEDENTIAL OPINION
SLIETER, Judge
Relator Law Enforcement Labor Services Inc. (LELS) appeals from an order issued
by respondent Bureau of Mediation Services (BMS) that withdrew BMS’ earlier
certification of LELS as the exclusive representative of all supervisory employees
employed in the St. Cloud police department support division ( the support division).
Because BMS failed to consider whether the employees in the support division were
supervisory employees as defined by statute, its decision to withdraw LELS’ certification
was without substantial evidentiary support. Therefore, we reverse and remand for further
proceedings.
FACTS
Respondent International Association of Machinists & Aerospace Workers
(IAMAW) was the exclusive representative of all supervisory employees in the support
division beginning in November of 2007. On September 17, 2020, LELS submitted a
petition to BMS seeking appointment as the exclusive representative for the support
division.
A mail-ballot election was held. On November 10, 2020, BMS certified LELS “as
the exclusive representative for the employees” in the support division.
In March 2022, LELS submitted an unrelated petition for exclusive representation
to BMS involving the St. Cloud Fire Department. When BMS began its review for this
unrelated petition, it realized that certifying LELS as the exclusive representative for the
support division may have been an error.
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BMS issued an order on July 12, 2022, determining that it erred in November of
2020 by certifying LELS as the exclusive representative of the support division “due to
LELS’s exclusive representative status of several non- supervisory units . . . of the same
public employer.” BMS concluded that “[c]ertifying the [support division] to LELS creates
an improper affiliation, prohibited under statute and LELS is also prohibited under the
statute to act as the exclusive representative for the unit.” BMS’ July 12 order withdrew
its previous certification of LELS as exclusive representative of the support division, and
reinstated IAMAW as the exclusive representative.
On July 22, 2022, LELS submitted a request for reconsideration. LELS argued that
it was improper to issue the order without providing advanced notice or an opportunity to
be heard, the sua sponte decision was beyond BMS’ authority and jurisdiction, and the
record did not support that the affected employees are supervisory within the meaning of
Minn. Stat. § 179A.03, subd. 17 (2022). In its order denying reconsideration, BMS
acknowledged that it “failed to initially conduct an investigation on the petition for a
challenge of exclusive representative status submitted by LELS on September 17, 2020,”
but it ultimately denied LELS’ request for reconsideration concluding that there was “no
error or fact or law” when it reversed its earlier decision. LELS makes this certiorari
appeal.
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DECISION
“This court’s task is to review the BMS decision to determine whether it reflects an
error of law, whether the determinations are arbitrary and capricious, or whether the
findings are unsupported by the evidence.” In re Clarification of an Appropriate Unit, 880
N.W.2d 383, 386 (Minn. App. 2016) (quotations omitted). Relators have the burden of
proof when challenging an agency decision. In re Excelsior Energy Inc., 782 N.W.2d 282,
289 (Minn. App. 2010).
LELS argues that BMS’ conclusion that the support division is comprised of
supervisory employees within the meaning of Minnesota’s Public Employment Labor
Relations Act (PELRA) did not have substantial evidentiary support and was arbitrary or
capricious.
We “accord substantial deference to the agency’s decision.” Citizens Advocating
Responsible Dev. v. Kandiyohi County Bd. of Comm’rs, 713 N.W.2d 817, 832 (Minn. 2006)
(CARD). When reviewing an agency’s action, we must “determine whether the agency has
taken a hard look at the problems involved, and whether it has genuinely engaged in
reasoned decision-making.” Id. (quotation omitted).
“Substantial evidence is defined as (1) such relevant evidence as a reasonable mind
might accept as adequate to support a c onclusion; (2) more than a scintilla of evidence;
(3) more than some evidence; (4) more than any evidence; or (5) the evidence considered
in its entirety.” Cannon v. Minneapolis Police Dep’t, 783 N.W.2d 182, 189 (Minn. App.
2010) (quotation omitted).
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PELRA prohibits a union from being certified as an exclusive representative for,
and acting on the behalf of, supervisory employees if that union is also the exclusive
representative of nonsupervisory employees of the same public employer. Minn. Stat.
§ 179A.06, subd. 2 (2022). PELRA defines a “supervisory employee” as:
a person who has the authority to undertake a majority of the
following supervisory functions in the interests of the
employer: hiring, transfer, suspension, promotion, discharge,
assignment, reward, or discipline of other employees, direction
of the work of other employees, or adjustment of other
employees’ grievances on behalf of the employer. To be
included as a supervisory function which the person has
authority to undertake, the 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 assistant, are always considered
supervisory employees.

Minn. Stat. § 179A.03, subd. 17. Thus, evidence must show that the supervisory
employees perform the statutory functions that qualify them as supervisory employees.
BMS directs our attention to its November 2007 certification of IAMAW and
LELS’ petition from September 2020. Both documents, in slightly different language,
identify the support division as supervisory employees “who are public employees within
the meaning of Minn. Stat. § 179A.03, Subd. 14, excluding confidential and all other
employees.” This, BMS argues, is substantial evidence that the employees in the support
division are supervisory. We are not persuaded.
Though the petition states that the supervisory employees are “public employees”
within the meaning of PELRA, and references the appropriate statutory definition of a
public employee, the petition makes no reference to the statutory definition of supervisory
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employees. See Minn. Stat. § 179A.03, subd. 14 (2022) (defining “public employee”).
And, there is no evidence in the record, and the petition and November 2007 certification
provides none, indicating that the employees in the support division engage in the “hiring,
transfer, suspension, promotion, discharge, assignment, reward, or discipline of other
employees, direction of the work of other employees, or adjustment of other employees’
grievances on behalf of the employer,” or use “independent judgment.” Minn. Stat.
§ 179A.03, subd. 17. Nor is there any evidence indicating that these employees are the
“administrative head[s] of . . . police.” Id.
Because BMS made its decision with no evidence, it lacked “more than a scintilla
of evidence” and is, consequently, unsupported by substantial evidence. See Cannon, 783
N.W.2d at 189. Accordingly, we reverse BMS’ decision and remand for further
proceedings.1
Reversed and remanded.

1 LELS also argues that BMS lacked the statutory authority to decertify it, decertification
without a hearing violated its due process rights, and reinstatement of IAMAW as the
representative for the employees was arbitrary and capricious. Because we reverse and
remand for the reasons stated, we do not reach these arguments.