Anoka County, Anoka, Minnesota v. Law Enforcement Labor Services, Inc., Brooklyn Center, Minnesota

STATE OF MINNESOTA

IN SUPREME COURT

A22-0911

Court of Appeals McKeig, J.
Concurring, Thissen, Procaccini, JJ.

Anoka County, Anoka, Minnesota,

Respondent,

vs. Filed: March 6, 2024
Office of Appellate Courts
Law Enforcement Labor Services, Inc.,
Brooklyn Center, Minnesota,

Appellant,

Bureau of Mediation Services,

Respondent.
________________________

Scott M. Lepak, Jennifer C. Moreau, Barna, Guzy & Steffen, Ltd., Coon Rapids,
Minnesota, for respondent Anoka County.

Renee Zachman, Scott Higbee, Law Enforcement Labor Services, Inc., Brooklyn Center,
Minnesota, for appellant.

Keith Ellison, Attorney General, Corinne Wright, Assistant Attorney General, Saint Paul,
Minnesota, for respondent Bureau of Mediation Services.
________________________

SYLLABUS
1. When considering a petition to certify an appropriate bargaining unit, the

Bureau of Mediation Services must first consider whether the petitioned-for unit is an

appropriate unit before considering an alternative proposal.

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 2. The Bureau of Mediation Services is allowed to consider overfragmentation

as a relevant factor when determining an appropriate bargaining unit.

3. When the Bureau of Mediation Services is determining an appropriate

bargaining unit, a four-unit policy preference not specifically enumerated in Minnesota

Statutes section 179A.09 (2022) may not control over specifically enumerated statutory

factors or carry greater weight than those factors section 179A.09 requires that the Bureau

must place particular importance upon.

Reversed and remanded.

OPINION

MCKEIG, Justice.

The Bureau of Mediation Services (the Bureau) is a state agency whose role is to

facilitate a constructive labor-management environment. See Minn. Stat. §§ 179.02,

179A.04 (2022). One of the Bureau’s functions included in the Public Employment Labor

Relations Act (PELRA), see Minn. Stat. §§ 179A.01-179A.25 (2022), is to make

bargaining unit determinations for public employees. See Minn. Stat. § 179A.04, subd. 2.

This appeal is from a unit determination order issued by the Bureau that found the

petitioning employees’ proposed unit to be inappropriate, while finding the employer’s

preferred unit to be the appropriate unit.

Clerical and technical employees from the Anoka County Sheriff’s Office, through

their chosen representative, Law Enforcement Labor Services, Inc. (the Union), submitted

a petition to the Bureau to determine an appropriate collective bargaining unit. Their

employer, Anoka County (the County), opposed the unit, arguing for a county-wide clerical

2
and technical employee unit. The Bureau found the County’s unit to be the appropriate

choice because, among other considerations, the employees’ proposed unit was not one of

the four basic county units preferred by the Bureau. The court of appeals affirmed, holding

that the Bureau had appropriately weighed the statutory factors found in PELRA, the

Bureau was authorized to consider overfragmentation of bargaining units in its analysis,

and the Bureau had not departed from its normal procedure in analyzing the employees’

petition. Because the Bureau gave controlling weight to a four-unit policy preference not

found in PELRA, we reverse and remand.

FACTS

In November 2021, the Union submitted a petition to the Bureau to determine an

appropriate bargaining unit for certain clerical and technical employees of the Anoka

County Sheriff’s Office. After two amendments to the petition, the final unit proposed by

the Union was “[a]ll clerical and technical employees of the Anoka County 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 County notified the Bureau that it considered the Union’s proposed unit to be

inappropriate and proposed that the only appropriate unit was a broader, county-wide unit

of all non-exempt clerical and technical employees. Six of the position titles from the

Union’s proposed unit overlapped with employees from the proposed county-wide unit, so

the County expressed concerns that those employees in overlapping positions not employed

by the Sheriff’s Office would be left out of the bargaining process. The County also noted

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that it already had 11 existing bargaining units, and adding smaller units such as the one

proposed by the Union would lead to the “undue proliferation” of units.

A hearing was held before a Bureau hearing officer at the Sheriff’s Office in April

2022. The parties stipulated to specific questions to be answered by the hearing officer,

the pertinent two of which were: 1) “Whether the petitioned for bargaining unit is an

appropriate bargaining unit;” and 2) “If not, what is the appropriate bargaining unit?”

Stipulated exhibits were received into evidence, each party presented witnesses, and the

record was left open for the parties to submit written follow-up briefs, which both parties

did. The Bureau issued its decision in June 2022, finding that: 1) “The Union’s proposed

bargaining unit is not an appropriate unit;” and 2) “The appropriate bargaining unit is: ‘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.’ ”

On certiorari appeal, the Union argued that the Bureau made numerous errors of

law, including coming to arbitrary and capricious conclusions when analyzing statutory

unit determination factors, inappropriately comparing the two proposed bargaining units,

and improperly concluding that certification of the Union’s proposed unit would result in

overfragmentation. The court of appeals affirmed, holding that “[the Bureau] properly

identified and considered the statutory community-of-interest factors set forth in Minn.

Stat. § 179A.09 and the risk of overfragmentation” when determining the appropriate unit.

Anoka Cnty. v. L. Enf't Lab. Servs., Inc., No. A22-0911, 2023 WL 2564408, at *7 (Minn.

App. Mar. 20, 2023). Recognizing the deferential standard of review given to state agency

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decisions, the court of appeals also found that the Bureau did not depart from its normal

procedure when evaluating the Union’s petition. Id. Although the court did note that the

Bureau “appeared” to directly compare the unit proposed by the Union to the one proposed

by the County, the court ultimately concluded that the Bureau followed its normal

procedure by first evaluating the Union’s proposals before examining those presented by

the County. Id. We granted the Union’s petition for further review.

ANALYSIS

The Union makes a number of arguments that the decision of the court of appeals

should be reversed, presenting three questions. The first question is whether the Bureau’s

unit determination conformed with its prior norms and decisions. The second question is

whether the Bureau improperly considered overfragmentation when determining an

appropriate bargaining unit based on obsolete case law or an incorrect reading of PELRA.

The third question is whether the Bureau gave inappropriate weight to a policy preference

of only certifying four basic county bargaining units. We address each question in turn.

I.

We first address whether the Bureau adhered to its prior norms and decisions when

analyzing the Union’s proposed bargaining unit. Mindful of the separation of powers

doctrine, we have long held that “[c]onstitutional principles . . . require that the judiciary

refrain from a de novo review of administrative decisions.” Dokmo v. Indep. Sch. Dist. No.

11, Anoka-Hennepin, 459 N.W.2d 671, 674 (Minn. 1990). So, “decisions of administrative

agencies enjoy a presumption of correctness, and deference should be shown by courts to

the agencies’ expertise and their special knowledge in the field of their technical training,

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education, and experience.” Rsrv. Min. Co. v. Herbst, 256 N.W.2d 808, 824 (Minn. 1977).

However, “[w]e may reverse or modify the decision of an administrative proceeding . . . if

the findings, inferences, or conclusions are arbitrary or capricious, or are unsupported by

substantial evidence in view of the entire record as submitted.” In re Reichmann Land &

Cattle, LLP, 867 N.W.2d 502, 512 (Minn. 2015) (citation omitted) (internal quotation

marks omitted). Therefore, if it appears that an agency has not taken a hard look at the

issue before them nor engaged in reasoned decision-making, we will intervene. Id.

Nevertheless, “[t]he appellant bears the burden of establishing that the agency findings are

not supported by the evidence in the record.” In re Rev. of the 2005 Ann. Automatic

Adjustment of Charges for All Elec. & Gas Utilities, 768 N.W.2d 112, 118 (Minn. 2009).

PELRA is meant to “promote orderly and constructive relationships between all

public employers and their employees.” Minn. Stat. § 179A.01(a). The Legislature has

established, in relevant part, that this goal is best accomplished by “(1) granting public

employees certain rights to organize and choose freely their representatives; [and] (2)

requiring public employers to meet and negotiate with public employees in an appropriate

bargaining unit.” Minn. Stat. § 179A.01(c)(1)–(2) (emphasis added).

One of the Bureau’s duties is to “determine appropriate units, under the criteria of

section 179A.09.” Minn. Stat. § 179A.04, subd. 2. The statute sets out the criteria in

section 179A.09 as follows:

In determining the appropriate unit, the commissioner 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

6
 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.

Minn. Stat. § 179A.09, subd. 1 (2022). 1 The Bureau must consider these statutory factors

when making an appropriate unit determination under PELRA. See id. (stating “the

commissioner shall consider . . .” (emphasis added)); Minn. Stat § 645.44, subd. 16 (2022)

(defining “shall” to mean mandatory). When evaluating the statutory factors, the Bureau

must “conform to its prior norms and decisions” absent a rational explanation for the

departure. See In re Rev. of 2005 Ann. Automatic Adjustment, 768 N.W.2d at 120 (“[A]n

agency must generally conform to its prior norms and decisions or, to the extent that it

departs from its prior norms and decisions, the agency must set forth a reasoned analysis

for the departure that is not arbitrary and capricious.”).

The Union argues that the Bureau improperly departed from its past norms and

decisions when analyzing the employees’ proposed unit. Specifically, the Union claims

that rather than considering whether the proposed unit was “an” appropriate unit, the

Bureau instead considered whether the unit was the “most” appropriate unit, directly

1
In its briefs to this court and in many of its unit determination orders, the Bureau
refers to these statutory factors as “community of interest factors.” See, e.g., Anoka Cnty.
& L. Enf’t Lab. Servs., Inc., BMS Case No. 22-PCE-0989, at 6 (June 2, 2022); City of
Winona & Int’l Ass’n of Firefighters, Loc. 575, BMS Case No. 07-PCL-0325, at 4 (Dec. 7,
2006). This is evidently because the Bureau applies “community of interest standards” in
its analyses with the goal of “rendering unit determinations that promote effective and
harmonious long-term collective bargaining relationships between union and
management.” Hennepin Cnty. Econ. Assistance Supervisor’s Ass’n & Hennepin Cnty.,
BMS Case No. 99-PCE-1585, at 5 (Nov. 12, 1999) (emphasis added) (citation omitted).
We have not adopted, nor have we endorsed, the term “community of interest factor,” and
we will refer to the factors listed in PELRA simply as the statutory factors.

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comparing it to the County’s proposed bargaining unit. We have previously held that,

consistent with customary agency practice, the Bureau must first consider the proposals of

a petitioning union, stating:

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.

In re Hill-Murray Fed’n of Tchrs. v. Hill-Murray High Sch., 487 N.W.2d 857, 867 (Minn.

1992).

In this case, an analysis of the Bureau order reveals one instance in which the

language is clearly suggestive of a direct comparison between the units proposed by the

Union and the County. 2 But the Bureau analyzed all the other statutory factors by

comparing each party’s position, rather than comparing the proposed units themselves. In

other words, the Bureau generally followed its established practice of first examining the

proposals of the Union. See L. Enf’t Lab. Servs., Inc., & City of Wabasha, BMS Case No.

18-PCE-0706, at 4–7 (June 13, 2018) (finding seven factors in favor of the union’s position

and one neutral); IBEW, Loc. 160 & City of Truman, BMS Case No. 20-PCL-1339, at 3–4

2
The second statutory factor is “professions and skilled crafts, and other occupational
classifications.” Minn. Stat. § 179A.09, subd. 1. When analyzing this factor, the Bureau
stated, “The skills, crafts, and occupational classifications of the employees [the Union]
proposed for inclusion into the bargaining unit are wide-ranging and diverse. The
employees the County is proposing make up the bargaining unit are also wide-ranging and
diverse.” Anoka Cnty. & L. Enf’t Lab. Servs., Inc., BMS Case No. 22-PCE-0989, at 7 (June
2, 2022) (emphasis added). The Bureau ultimately determined this factor to be neutral.

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(Aug. 17, 2020) (finding one factor favoring the city’s position, four favoring the union’s

position, and two neutral); IUOE, Loc. No. 49 & City of Big Lake, BMS Case No. 17-PCL-

0678, at 3–7 (May 10, 2017) (finding three factors favoring the city’s position, four

favoring the union’s position, and two neutral); City of Elk River & IUOE, Loc. No. 49,

BMS Case No. 16-PCE-0323, at 3–6 (Jan. 14, 2016) (finding three factors favoring the

city’s position, three favoring the union’s position, and three neutral).

The Union persuasively argues that simply because a factor favors the employer, it

does not necessarily mean that the factor disfavors the union. Although the point is well

taken, we believe that the way the parties crafted the stipulated issues has created confusion

about the Bureau’s order. In particular, the parties asked the Bureau to determine not only

whether the Union’s proposed unit was appropriate, but also to determine the unit that

would be appropriate if the Union’s proposed unit was inappropriate. There are areas of

the Bureau’s order where an inference could be made that there was an improper

head-to-head comparison between the petitioned-for bargaining unit of the Union and the

alternative unit proposed by the County. But a contrary inference could also be made that

the Bureau analyzed the Union’s proposed unit first, found the unit inappropriate, and then

went on to analyze other potential units. Aside from the single direct unit comparison

noted above concerning the second statutory factor, the record does not show with certainty

that the Bureau departed from its past practices here.

Though perhaps we would have come to different conclusions were we to analyze

the facts within these statutory factors ourselves, it appears from the record that the Bureau

engaged in reasoned decision making, and we are wary of nitpicking the reasoning of state

9
agencies. See In re Reichmann Land & Cattle, 867 N.W.2d at 512 (“We will affirm agency

conclusions even if we may have reached a different conclusion if we were the

factfinder.”).

Here, we do not conclude that the Bureau improperly compared the Union’s

proposed unit to that of the County’s. Going forward, however, we caution the Bureau

against using a head-to-head comparison method absent a reasoned analysis and

explanation for the departure. As we explained in Hill-Murray and as the Bureau itself has

recognized, “the Bureau’s role is to determine an appropriate unit, not the most appropriate

unit.” Indep. Sch. Dist. No. 709 & Non-Certified Supervisory Ass’n & Educ. Dirs. Ass’n,

BMS Case No. 87-PR-161, at 8 (July 22, 1987); see Hill-Murray Fed’n of Tchrs.,

487 N.W.2d at 867.

II.

We next determine whether the Bureau may consider overfragmentation when it

analyzes PELRA’s statutory factors when making a unit determination. The concept of

overfragmentation, as described by the Bureau, is that “a bargaining structure of individual

departments . . . would lead to fragmented bargaining disadvantageous to the employees,

the union, and the employer . . . [and] there [is] a distinct balance between the narrow

community of interest of some employees and the excessive fragmentation of the

bargaining structure.” Anoka Cnty. & L. Enf’t Lab. Servs., Inc., BMS Case No. 22-PCE-

0989, at 6 (June 2, 2022).

The Union claims that the Bureau has improperly extended a holding from our

nearly 50-year-old decision in Minn. State Coll. Bd. v. Pub. Emp. Rels. Bd., 228

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N.W.2d 551 (Minn. 1975), when considering overfragmentation in the unit determination

analyses. Interpretation of case law is a legal question that we review de novo. State v.

Robideau, 796 N.W.2d 147, 150 (Minn. 2011).

Minnesota State College Board analyzed an appeal related to the determination “that

the appropriate bargaining unit for faculty members employed at the seven state colleges

[was] a single state-wide unit.” 228 N.W.2d at 553. When Minnesota State College Board

was decided, PELRA contained a method of determining units for state employees distinct

from other public employees. 3 See Minn. Stat. § 179.74, subd. 4 (1974) (“[T]he director

of mediation services shall define appropriate units of state employees as all the employees

under the same appointing authority except where professional, geographical or other

considerations affecting employment relations clearly require appropriate units of some

other composition.”). The Union argues that because our decision in Minnesota State

College Board contemplated state employees, the court could have only been discussing

state employees in the context of Minn. Stat. § 179.74, subd. 4 (1974), when discussing

PELRA. We disagree.

In analyzing the issue presented in Minnesota State College Board, we stated:

The purpose behind the PELRA and its incidents promoting collective
bargaining is that those engaged in common occupations, in the instant case
faculty members at the state colleges, with common goals and problems
should bargain together for particular demands. Obviously, the Act and its

3
PELRA was recodified in 1984. See Act of Apr. 24, 1984, ch. 462, 1984 Minn.
Laws 235 (codified as Minn. Stat. §§ 179A.01–179A.25 (2022)). Through the
recodification, both the purpose behind PELRA and the statutory factors remained
substantively unchanged.

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 statutory coordinates attempt to eliminate the ‘overfragmentation’ which
might result from the certification of individual bargaining units.

228 N.W.2d at 561 (citation omitted). We did not limit our discussion of

overfragmentation to confine the concept to state employees only. See id. In fact, when

discussing the “purpose behind” PELRA, we even highlighted that the case at bar was

discussing a narrower subset of state college employees rather than the many more public

employees included within the full scope of PELRA. See id. (“[I]n the instant case faculty

members at the state colleges . . . .”).

Moreover, independent of our opinion in Minnesota State College Board, the plain

language of PELRA itself provides the Bureau with authority to consider

overfragmentation as part of the unit determination analysis. We review questions of law

and statutory interpretation de novo. State v. Wigham, 967 N.W.2d 657, 662 (Minn. 2021).

“When determining the plain and ordinary meaning of undefined words or phrases in a

statute, courts should look to the dictionary definitions of those words and apply them in

the context of the statute.” State v. Haywood, 886 N.W.2d 485, 488 (Minn. 2016).

In addition to the specifically listed statutory criteria in section 179A.09 that must

be considered when making a unit determination, that section also states that the Bureau

must also consider “other relevant factors.” Minn. Stat. § 179A.09, subd. 1 (“the

commissioner shall consider . . . other relevant factors”). “Relevant” is defined as “having

significant and demonstrable bearing on the matter at hand.” Merriam-Webster’s

Collegiate Dictionary 1051 (11th ed. 2014). In the context of the statute, the Commissioner

of the Bureau is thus able to consider other factors that have significant and demonstrable

12
bearing on whether a unit is appropriate, consistent with the stated purpose of PELRA “to

promote orderly and constructive relationships between all public employers and their

employees.” Minn. Stat. § 179A.01(a).

The Bureau is the governmental body that is best positioned to determine what

“other relevant factors” may best help promote orderly and constructive employment

bargaining relationships. The inference that the Legislature has entrusted the

Commissioner of the Bureau to use their expertise when determining these factors is

logical, especially considering the extent of the Commissioner’s other powers in the public

employment arena. See Minn. Stat. § 179A.04 (including the power to investigate petitions

for election procedures and arbitration, to provide mediation services, and to create

grievance procedures).

Had the Legislature wanted the Bureau to consider only certain factors, it would not

have included the catch-all “other relevant factors” phrase; conversely, had it wanted the

Bureau to consider other specific factors, it clearly knew how to do so. The only reasonable

interpretation of “other relevant factors” is one that implicitly allows the Bureau to

determine which factors are relevant when making a thorough unit determination analysis.

“[O]ther relevant factors” traditionally considered by the Bureau include “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) The number of employees affected; 7) Work location; 8) Nature of

compensation; and 9) Common supervision.” Indep. Sch. Dist. No. 709, BMS Case

No. 87-PR-161 at 4. None of these factors are a specifically listed factor, yet the Bureau

13
has developed them through its decades of experience making bargaining unit

determinations.

The same may be said for the addition of overfragmentation to the Bureau’s list of

“other relevant factors.” When discussing the potential pitfalls resulting from the undue

proliferation of bargaining units—another phrase for overfragmentation—the Bureau has

stated that “[w]hile the number of bargaining units is not a factor listed at § 179A.09, the

Bureau has traditionally considered it as an ‘other relevant factor.’ ” Minn. Ass’n of Pro.

Emps. & Ramsey Cnty., BMS Case No. 03-PCE-955, at 6 (July 25, 2003). This factor has

been developed and applied by the Bureau for at least 40 years. See, e.g., Minn. Sch. Emps.

Ass’n & Indep. Sch. Dist. No. 690, BMS Case No. 81-PR-947-A, at 2 (May 27, 1981)

(stating that its analysis “requires the balance between the community of interest of

employees and excessive fragmentation”); L. Enf’t Lab. Servs. & Anoka Cnty., BMS

No. 21-PCE-0336, at 4 (Feb. 24, 2021) (explaining that “over fragmentation, a

consideration not identified in §179A.09 [is] however a consideration the Bureau has used

for decades”).

Based on our analysis, we hold that under PELRA, overfragmentation is one of the

“other relevant factors” that the Bureau is allowed to consider when analyzing statutory

factors for a unit determination.

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 III.

With overfragmentation in mind, we now turn to the third question, which is

whether the Bureau gave improper weight to overfragmentation and its four-unit policy

preference when making its unit determination. As discussed above, the Bureau may

consider overfragmentation in its unit analyses, but the question remains of how much

weight may be given to that factor and its related consideration, the Bureau’s four-unit

policy preference.

When determining bargaining structures for county government employees, the

Bureau has long followed a policy of forming units based on broad occupational groups to

avoid excessive fragmentation of the bargaining structure. See AFSCME, Council No. 65

& Cnty. of Sibley, BMS Case No. 83-PR-48-A, at 4–5 (Sept. 10, 1982). The inclusion of

a “clerical-technical-professional unit” in that structure began over 40 years ago. Id. at 5.

Today, the four basic units of county government preferred by the Bureau when making

unit determinations are “essential, highway maintenance and public works, social service

department, and county-wide office-clerical-administrative, technical, and professional

employees.” AFSCME, Council No. 65 & Cnty. of Morrison, BMS Case No. 99-PCE-402,

at 2 (Jan. 4, 1998). We must determine whether the Bureau’s adherence to its four-unit

policy preference when determining the appropriate unit in this case was supported by

PELRA. 4

4
In its brief to us, the Union argued for the first time that this four-unit policy
preference was an improperly promulgated administrative rule. “Generally, we do not
address issues the petitioner fails to raise in a petition for further review because such a
failure waives the issue on appeal.” State v. Koppi, 798 N.W.2d 358, 366 (Minn. 2011).

15
 Statutory construction is a question of law that we review de novo.

Anderson-Johanningmeier v. Mid-Minnesota Women's Ctr., Inc., 637 N.W.2d 270, 273

(Minn. 2002). “The object of all interpretation and construction of laws is to ascertain and

effectuate the intention of the legislature. Every law shall be construed, if possible, to give

effect to all its provisions.” Minn. Stat. § 645.16 (2022).

The factors that the Bureau must consider when making an appropriate unit

determination are “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.” Minn. Stat. § 179A.09, subd. 1. The “other relevant

factors” phrase creates a general catch-all category, which, as discussed above, allows the

Bureau to consider factors that it deems integral to the process of determining an

appropriate unit. Section 179A.09 also provides that “[t]he commissioner shall place

particular importance upon the history and extent of organization, and the desires of the

petitioning employee representatives.” Id.

What PELRA does not state is that the general catch-all factors may control over

those factors specifically enumerated by the Legislature. If the Legislature had wanted to

“An issue is not properly before this court when a party presents it for the first time in its
brief, and we generally do not address issues that were not raised in a party’s petition for
review.” Hennepin Healthcare Sys., Inc. v. AFSCME Minn. Council 5, Union, 990
N.W.2d 454, 468 n.5 (Minn. 2023). Because the issue of an improperly promulgated
administrative rule is not properly before us, we do not address it.

16
give the Bureau such discretion, it could have. After all, the Legislature clearly knew how

to give some factors more weight than others based on the instruction that “[t]he

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. By legislative directive, the Bureau is required to give these three factors greater

weight. Therefore, we conclude that the catch-all factors determined to be relevant by the

Bureau—including overfragmentation and the four-unit preference—cannot be given

greater weight than the history and extent of organization, and the desires of the petitioning

employee representatives. Likewise, the catch-all factors cannot be given controlling

weight over the specifically listed statutory factors.

After detailing its analysis of the statutory factors, the Bureau stated in the

conclusion of its order:

It is the Bureau'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.

Anoka Cnty. & L. Enf’t Lab. Servs., Inc., BMS Case No. 22-PCE-0989 at 11 (emphasis

added). It is plain from this language that the Bureau considered its four-unit preference

to be effectively controlling and to carry greater weight than any other factor in the unit

determination analysis, including the three factors section 179A.09 requires the Bureau to

“place particular importance upon.” To only certify four basic units, absent compelling

reasons, is not only contrary to the plain language of PELRA, but it makes the specific

statutory factors all but extraneous.

17
 Further, when articulating its decision regarding the Union’s petitioned-for

bargaining unit, the Bureau stated, “[n]either party presented evidence showing the Bureau

has created any bargaining units of clerical/technical employees in a Sheriff’s office or

other singular department without a rationale reason [sic] for such exception.” Id. Nothing

in PELRA justifies the Bureau creating an evidentiary burden of this type in favor of its

four-unit preference. Not only must the Bureau make its unit determination decision based

upon the statutory factors, but it also may not base that determination on whether there

exists evidence to show that the Bureau has previously created a similar unit.

In short, the Bureau gave priority and effectively controlling weight to its four-unit

preference and the related overfragmentation concerns over the specific factors listed in

PELRA. “Agency decisions are reversed when they reflect an error of law.” Citizens

Advocating Responsible Dev. v. Kandiyohi Cnty. Bd. of Comm'rs, 713 N.W.2d 817, 832

(Minn. 2006). Prioritizing the four-unit policy preference over those factors upon which

the Bureau must place particular importance—and giving the four-unit preference

controlling weight over the specifically listed factors in Minn. Stat. § 179A.09, subd. 1—

was an error of law.

We therefore conclude that the Bureau did not properly analyze the Union’s

petitioned-for bargaining unit when it found the unit to be inappropriate because it was not

one of the four preferred basic county bargaining units. Remand is appropriate here

because the unit determination decision that was initially made weighted the statutory

factors in PELRA improperly. A bargaining unit determination must now be made by the

Bureau giving appropriate weight and consideration to those factors.

18
 CONCLUSION

For the foregoing reasons, we reverse the decision of the Bureau and remand for

further proceedings consistent with this opinion.

19
 CONCURRENCE

THISSEN, Justice (concurring).

Law Enforcement Labor Services, Inc. (the Union) filed a petition on behalf of all

non-supervisory, non-confidential clerical and technical employees 1 of the Anoka County

Sheriff’s Office to determine the appropriate bargaining unit for those employees. 2 The

Public Employment Labor Relations Act (PELRA) charges the Commissioner of the

Bureau of Mediation Services (the Bureau) with determining “appropriate units, under the

criteria of section 179A.09.” Minn. Stat. § 179A.04, subd. 2 (2022); see Minn. Stat.

§ 179A.03, subd. 2 (2022) (defining “appropriate unit or unit” as “a unit of employees

determined under sections 179A.09 to 179A.11”). 3 In other words, while the Bureau has

authority to make unit determination decisions, its power is constrained by the framework

of limitations on the Bureau’s authority set forth in PELRA. In re Qwest’s Wholesale Serv.

Quality Standards, 702 N.W.2d 246, 259 (Minn. 2005) (explaining that administrative

1
The terms confidential employees, public employees, and supervisory employees
are defined in Minn. Stat. § 179A.03, subds. 4, 14 and 17 (2022).
2
The job classifications of the Sheriff’s Office employees on whose behalf the Union
filed the petition include Principal Administrative Secretary, Civil Specialist, Principal
Accounting Clerk, Community Relations Coordinator, Crime Analyst, Gun Permit
Coordinator, Assistant Gun Permit Coordinator, Administrative Supervisor, Property
Technician, Records Technician, Data Practices Specialist, Technical Analyst, Training
Coordinator, and Crime Watch Coordinator.
3
The task of making unit determinations is qualitatively different in nature than
another task delegated to the Bureau—that of assisting in the resolution of labor disputes
between employers and employees through mediation and arbitration. See, e.g., Minn.
Stat. §§ 179.02, 179.06-09 (2022). The dissonance between those two roles may have
contributed to some of the concerns I have about the Bureau’s decision in this case and the
evolution of its approach to unit determinations described in more detail below.

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agencies are creatures of statute, retain only those powers granted to them by statute, and

must act within their statutory authority); see also In re Surveillance And Integrity Rev.

(SIRS) Appeals by Trinity Home Health Care Servs. and Etyane Ayana, 996 N.W.2d 178,

188 (Minn. 2023) (observing that “[a]n agency’s authority may be stated either expressly

in statute or implied from the express powers given to the [agency] by the Legislature” and

“[a]ny enlargement of express powers by implication must be fairly drawn and fairly

evident from the agency objectives and powers expressly given by the legislature”

(citations omitted) (internal quotation marks omitted)). Further, when the language of a

statute is unambiguous, we apply the plain language of the statute. In re Denial of

Contested Case Hearing Requests, 993 N.W.2d 627, 646 (Minn. 2023). It is only when

the language of a statute is ambiguous that we may consider an agency’s interpretation in

which case “we may, but are not required to, defer to the agency’s reasonable interpretation

of the statute . . . .” Id. When the agency’s reasonable interpretation of an ambiguous

statute has been longstanding (as is this case here), it is ordinarily “entitled to weight,”

Minn. Power & Light Co. v. Pers. Prop. Tax, Taxing Dist., Sch. Dist. No. 695, 182 N.W.2d

685, 689 (Minn. 1970), and may be used to help ascertain “the intention of the legislature,”

Minn. Stat. § 645.16 (2022).

As a court, we owe some deference to the Bureau based on its experience and

expertise. But the Bureau also must defer to the Legislature; it does not have free range to

do what it wants within its area of expertise. Accordingly, we owe the Bureau no deference

when their norms and practices run contrary to the Legislature’s plain statutory directives.

One fundamental disagreement I have with the court is that it leapt immediately to

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deference to the agency without first determining if the statutory language is plain and the

scope of the limits that plain language places on agency authority.

Applying its own policy preferences and decision-making norms, the Bureau

determined that the bargaining unit proposed by the Union was not an appropriate unit. In

addition, the Bureau determined that the appropriate bargaining unit is:

All clerical and technical employees of Anoka County, who are public
employees within the meaning of Minn. Stat. § 179A.03, [s]ubd. 14,
excluding the appraiser, senior appraiser, professional, supervisory,
confidential, essential and all other employees.

Thus, instead of organizing the clerical and technical employees in the Sheriff’s

Office—the employees who have expressed an interest in organizing and the group the

Union desires to organize—the Bureau’s decision requires that unless the Union organizes

the currently unorganized clerical and technical employees in every department of Anoka

County with the statutory exceptions noted, no clerical and technical employees may

organize and receive the protections of PELRA.

In this appeal, we must determine whether the Bureau properly determined that the

bargaining unit proposed by the Union was not an appropriate unit. The court concludes

that the Bureau’s determination was flawed because it placed undue reliance on concerns

about overfragmentation. I agree with the conclusion but for different reasons.

For one thing, the Bureau relied on a policy of its own invention that county

employees must be organized into one of four basic bargaining units unless the employees,

their representative, and the employer agree that a different unit is appropriate or if the

employees and their representative offer a “compelling reason” to deviate from the

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four-basic-bargaining-unit structure. This four-basic-bargaining-unit-presumption policy

has no basis in the language and structure of Minnesota Statutes section 179A.09,

subdivision 1 (2022), for determining whether the bargaining unit proposed by the

employees and their representative is an appropriate unit—indeed, the policy is

contrary to the framework set forth by the Legislature in the statute. By presuming that the

four-basic-bargaining-unit structure is the presumptive default structure, the Bureau

flipped the statutory framework on its head. In short, the Bureau’s decision in this case is

contrary to law and arbitrary.

The Bureau also misapplied several of the statutory factors set forth in section

179A.09, subdivision 1. Among other things, and importantly, the Bureau placed undue

weight on concerns about overfragmentation of bargaining units and failed to “place

particular importance upon the history and extent of organization, and the desires of the

petitioning employee representatives,” as expressly required by section 179A.09,

subdivision 1. In fact, the Bureau did not consider the desires of the petitioning employee

representatives at all.

A.

I start where I must with the language of the statute. In Minn. Stat. § 179A.01

(2022), the Legislature provided us with a clear statement of the values and purposes it had

when it enacted PELRA. The Legislature observed that, in addition to public employees

and public employers, the public in general had an interest in “orderly and

constructive relationships between all public employers and their employees.” Minn. Stat.

§ 179A.01(a). Indeed, the Legislature told us that the “right of the citizens of this state to

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keep inviolate the guarantees for their health, education, safety, and welfare” must be a

“paramount right.” Id. The Legislature further recognized that the “importance or

necessity of some services to the public can create imbalances in the relative bargaining

power between public employees and employers” that render the bargaining power of

public employees different than those of private sector employees. Minn. Stat.

§ 179A.01(b); see also Minn. Stat. §§ 179A.18, 179A.19 (2022) (prohibiting strikes by

essential employees and making strikes by other public employees illegal unless certain

protocols are followed); Minneapolis Fed’n of Tchrs. Loc. 159 v. Obermeyer, 147 N.W.2d

358, 365–67 (Minn. 1966) (discussing the history of restrictions on public employees in

organizing a labor union). Finally, the Legislature stated that the balancing of the rights

and interests of “the public employee, public employer, and the public at large” is best

served by “granting public employees certain rights to organize and choose freely their

representatives [and] requiring public employers to meet and negotiate with public

employees in an appropriate bargaining unit and providing that the result of bargaining be

in written agreements.” Minn. Stat. § 179A.01(c)(1), (2) and (3).

It is also important that the question for the Bureau in unit determination cases is

whether the unit proposed by the representatives of the employees who seek to organize is

an appropriate unit—not necessarily the most appropriate unit. As we stated in

Hill-Murray Federation of Teachers v. Hill-Murray High School, 487 N.W.2d 857, 867

(Minn. 1992):

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

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 over the boundaries of the appropriate unit, it is customary for administrative
agencies [like the Bureau] 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.

In that case, we also cited with approval In re Morand Bros. Beverage Co. v. NLRB,

91 N.L.R.B. 409, 418 (1950), for the proposition that it is not necessary that the “unit for

bargaining be the only appropriate unit, or the ultimate unit, or the most appropriate

unit”—the unit only needs to be appropriate. Hill-Murray, 487 N.W.2d at 867; see also In

re AFSCME Council No. 65 & Indep. Sch. Dist. No. 480, PERB Case No. 77-PR-802-A,

at 4 (Nov. 10, 1977) (stating that the role of the Bureau “is to determine if the unit petitioned

for is ‘an’ appropriate bargaining unit. No provision of [PELRA] mandates that collective

bargaining in a proposed unit which is otherwise appropriate is to be denied simply because

another unit may be conceptually ‘most’ appropriate”) [opinion attachment 4]. The court

properly recognizes this and holds that the Bureau cannot consider bargaining unit

structures other than that proposed by the organizing employees and their representative

until the Bureau first determines that the bargaining unit proposed by the organizing

employees and their representatives is not an appropriate unit.

But this is not simply a matter of procedural process; this principle is another

indication that PELRA expresses a preference for the wishes of the employees seeking to

organize and their representatives. The bargaining unit proposed by the organizing

4
Several of the decisions of the Bureau and the Public Employment Relations Board
that the Bureau and the parties cited, and upon which the majority opinion and this
concurrence rely, are not readily available or accessible to the public. In the interest of
transparency, those decisions are attached to this opinion.

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employees and their representatives is the starting place for the entire analysis and that unit

should be approved unless there is a reason to believe that the unit is inappropriate. The

fact that another unit may be more appropriate from the perspective of the employer or the

Bureau is irrelevant. The Bureau’s approach (as exemplified in this case)—which starts

with the Bureau’s preferred four-basic-bargaining-unit structure and insists that

the employees and their representatives prove that the proposed unit is a more

appropriate bargaining unit compared to the Bureau’s preferred county bargaining unit

structure—ignores this fundamental design principle embedded in PELRA.

This legislative inclination for the bargaining unit preferences of the organizing

employees and their representative is also expressly found in Minn. Stat. § 179A.09, the

language defining the scope of the Bureau’s authority to make unit determinations.

Section 179A.09, subdivision 1, provides:

In determining the appropriate unit, the commissioner 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.

(Emphasis added.) A few observations about this statutory language are in order.

The list of considerations the Commissioner may consider in determining the

appropriate bargaining unit is non-exclusive. In addition to the listed factors, the

Commissioner may consider “other relevant factors” including the concept of

overfragmentation upon which the Bureau relies so heavily in making unit determinations

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as it did in this case. 5 I agree with the court’s conclusion on this point. I also believe,

however, that although the conclusion is implicit in its decision, the court fails to

sufficiently distinguish consideration of overfragmentation as one additional factor

among many (which is permissible) and the separate issue of whether the way the

Bureau’s policy concern with overfragmentation has hardened into a presumptive

four-basic-bargaining-unit rule is proper (it is not). The problem with the Bureau’s

decision in this case is not simply that it considered its four-unit preference “to carry greater

weight than any other factor in the unit determination analysis,” but rather that it applies a

four-basic-bargaining-unit rule at all. That in itself is an arbitrary rule. I will address this

issue in more detail below.

Another aspect of section 179A.09, subdivision 1—one that is dispositive in this

case—is the final phrase of the provision. The statutory text requires that the Bureau place

5
As the court notes, the Bureau has identified a number of “other relevant factors”
including “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) The number of employees affected; 7) Work
location; 8) Nature of compensation; and 9) Common supervision.” Indep. Sch. Dist. No.
709 & Non-Certified Supervisory Ass’n & Educ. Dirs. Ass’n, BMS Case No. 87-PR-161,
at 4 (July 22, 1987). It strikes me after reviewing past Bureau decisions that most of these
factors are the same as, or included within, the factors specifically identified in
section 179A.09, subdivision 1. It is not clear why the Bureau treats them as independent
“other relevant factors”—perhaps it creates an appearance of extra heft to counterbalance
the factors the Legislature said were to be given particular importance. In contrast, the
Bureau’s decision in Anoka Cnty. & AFSCME, Council No. 14, BMS Case No. 02-PCE-
894, at 5–6 (Mar. 27, 2002), provides a clear example of a unique “other relevant factor.”
As discussed more fully in footnote 7 below, in that case, the Bureau found that
administrative staff in the Anoka County courts was an appropriate unit because, by
legislation, the court administration staff would soon after organizing become statewide
court employees rather than county employees. Id.

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greater weight on the history and extent of organization and the desires of the petitioning

employees than it places on (1) other factors that the commission “shall consider,” (2) any

“other relevant factors,” (3) the manner in which the public employer has structured its

operations, or (4) the Bureau’s broad policy concerns about overfragmentation. 6 Minn.

6
The preference to be placed on the bargaining unit proposed by the organizing
employees and their representative is also shown in the evolution of section 179A.09,
subdivision 1, and its predecessor statutes. The language now found in section 179A.09,
subdivision 1, was first added to statute in 1965. Act of May 26, 1965, ch. 839, § 2, 1965
Minn. Laws 1554, 1555–56 (codified as amended at Minn. Stat. § 179.52, subd. 4 (1966)).
The amended language provided:
In defining the [representation] unit, the labor conciliator shall take into
consideration, along with other relevant factors, the principles of efficient
administration of government, the principles and the coverage of uniform
comprehensive position classification and compensation plans in the
governmental agency, the history and extent of organization, occupational
classification, administrative and supervisory levels of authority,
geographical location, and the recommendations of the parties.
Id. In 1971, the Legislature enacted the modern version of PELRA. Act of Nov. 3, 1971,
ch. 33, 1971 Minn. Laws Extra Sess. 2709. Section 11 of the legislation provided:
The director shall determine appropriate units. In determining the
appropriate unit he shall take into consideration, along with other relevant
factors, the principles and the coverage of uniform comprehensive position
classification and compensation plans of the employees, the history and
extent of organization, involvement of professions and skilled crafts and
other occupational classifications, relevant administrative and supervisory
levels of authority, the desires of the employees and employers, geographical
location, and the recommendation of the parties.
Id., ch. 33, § 11, 1971 Minn. Laws Extra Sess. at 2725 (codified at Minn. Stat. § 179.71,
subd. 3 (1972)). In this amendment, the Legislature affirmatively eliminated the express
reference to “the efficient administration of government,” added the language “the desires
of the employees and employers” and changed the plural “recommendations of the parties”
to the singular “recommendation of the parties.”
In 1973, the Legislature amended this provision once again to a form substantially
similar to that now found in section 179A.09, subdivision 1. Act of May 24, 1973, ch. 635,
§ 26, 1973 Minn. Laws 1526, 1536. The amended provision provided:
In determining the appropriate unit [the director] shall take into
consideration, along with other relevant factors, the principles and the
coverage of uniform comprehensive position classification and

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Stat. § 179A.09, subd. 1. And significantly, these factors upon which the Bureau must

place particular importance emphasize once again the critical value that the Legislature

placed on allowing the employees to organize themselves as they wish to be organized.

The importance the Legislature placed on allowing the employees to organize as

they wish to be organized is also clear from the phrase “extent of organization” as that term

was and is understood in labor law. See generally Minn. Stat. § 645.08(1) (2022)

(“technical words and phrases and such others as have acquired a special meaning . . . are

construed according to such special meaning or their definition”). Extent of organization

is a term of art that refers to “[t]he scope of the union’s organizing campaign, that is, the

groups of employees on which the union has focused it organizing efforts.” 1 The

Developing Labor Law 11-10 (John E. Higgins, Jr., ed., 7th ed. 2017). Or, as articulated

by the Bureau, the phrase “measures which grouping of employees has expressed support

for the union.” Cnty. of Anoka & AFSCME, Council No. 14, BMS Case No. 02-PCE-894,

at 3 (May 8, 2002) (May 2002 AFSCME-Anoka County Decision). 7

compensation plans of the employees, the history and extent of organization,
involvement of professions and skilled crafts and other occupational
classifications, relevant administrative and supervisory levels of authority,
the desires of the employees and employers, geographical location, and the
recommendation of the parties, and shall place particular importance upon
the history and extent of organization and the desires of the petitioning
employee representatives.
Id. In addition to adding the requirement that the Bureau place “particular importance upon
the history and extent of organization and the desires of the petitioning employee
representatives,” the Legislature affirmatively eliminated any reference to the desires of
the employers as a factor that “shall” be considered.
7
In its decision in this case, the Bureau cited Anoka Cnty. & AFSCME, Council No.
14, BMS Case No. 02-PCE-894 (Mar. 27, 2002) (March 2002 AFSCME-Anoka County

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 The concept of extent of organization arose in response to early National Labor

Relations Board (NLRB) decisions that placed significant weight on the extent of

organizing efforts existing at the time of the petition to determine an appropriate unit was

filed. The rationale for placing weight on the extent of organization was a recognition that

“it is often desirable to render collective bargaining a reasonably early possibility for the

employees involved” in the organizing effort. The Developing Labor Law, supra, at 11-10.

This preference served the interest of labor peace by allowing those employees interested

in organizing to be recognized before they resorted to striking or other tactics to force the

employer to recognize the union and also limiting the ability of other unorganized

Decision), as the source of the definition. In fact, the definition is included in the May
2002 AFSCME-Anoka County Decision, the Bureau’s ruling affirming the March 2002
AFSCME-Anoka County Decision upon reconsideration.
Nonetheless, the Bureau’s initial decision in the March 2002 AFSCME-Anoka
County Decision is informative here. The decision arose out of AFSCME Council 14’s
efforts to organize a bargaining unit much like the bargaining unit proposed by the Union
in this case—a bargaining unit consisting of all non-supervisory, non-confidential office
clerical/administrative and technical public employees within Anoka County court
administration. March 2002 AFSCME-Anoka County Decision at 1. As in the current
case, Anoka County opposed the unit determination, asserting that the appropriate unit is
all non-supervisory, non-confidential office clerical/administrative and technical public
employees of Anoka County. Id. The Bureau rejected the County’s position, primarily on
the ground that court administration staff would soon become statewide court employees.
Id. at 5–8. But in its analysis, the Bureau determined that the “extent of organization”
factor favored the smaller, more focused unit proposed by AFSCME because the
“[e]vidence indicates that the extent of Council [14]’s organizational activity has been
limited to the court employees. This factor supports Council 14’s proposed bargaining
unit,” id. at 5—the opposite of the Bureau’s decision in this case.

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employees or others to block collective bargaining by requiring the union to organize

additional workers. 8 As described in the NLRB’s 1947 Annual Report:

Another factor influencing the Board’s determination of the appropriate unit
was the extent of employee self-organization. This circumstance had been
effective in the past in establishing the appropriateness of a grouping of
employees which was less than the optimum one but was nevertheless
feasible for bargaining purposes. The theory expressed in these cases was
that it is often desirable in the determination of an appropriate unit to render
collective bargaining for the employees involved a reasonably early
possibility, lest prolonged delay expose the organized employees to the
temptation of striking to obtain recognition and permit unorganized
employees engaged in other work tasks to thwart collective bargaining by
those who have evinced an interest in selecting a representative.

12 NLRB Ann. Rep. 20 (1947) (emphasis added).

In other words, by stating that the Bureau must place “particular importance” on

extent of organization, the Legislature directed that, in determining whether the proposed

unit is an appropriate unit, the Bureau must give the unit preferences of those employees

who have expressed an interest in organizing more weight than the other statutory

factors—even if the employees’ preferred unit is not optimal. 9

8
In this regard, recall the expressed purpose of the Legislature in enacting PELRA: to
create “orderly and constructive relationships between all public employers and their
employees” and to grant “public employees certain rights to organize and choose freely
their representatives.” Minn. Stat. § 179A.01(a), (c)(1).
9
The “particular importance” that the Legislature instructed the Bureau to place on
the preferred unit of those employees who have expressed an interest in organizing stands
in contrast to federal law. In the 1947 Labor-Management Relations (Taft-Hartley) Act,
Congress amended 29 U.S.C. § 159(c)(5)—known as Section 9(c)(5)—and told the NLRB
that “[i]n determining whether a unit is appropriate . . . the extent to which the employees
have organized shall not be controlling.” Taft-Hartley Act, ch. 120, sec. 101, § 9(c)(5), 61
Stat. 136, 144 (1947). In other words, when it amended PELRA in 1973, the Minnesota
Legislature expressly made the choice to take a different course and place greater
importance on the extent to which the employees have organized than Congress did in the

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 The Legislative intent to place “particular importance” on allowing the employees

to organize themselves as they wish to be organized is also shown in the phrase “the desires

of the petitioning employee representatives” in section 179A.09, subdivision 1—a factor

that the Bureau failed to address in its decision in this case. In prior decisions, the Bureau

has stated that this factor looks to the “desires of the . . . union organizations themselves.”

May 2002 AFSCME-Anoka County Decision at 3. And we applied this preference in just

this manner in Minnesota State College Board v. Public Employment Relations Board, a

case in which we faced the question of whether the appropriate bargaining unit for the

faculty at Minnesota’s then seven state colleges and universities was a single statewide unit

or a unit for each individual college. 228 N.W.2d 551, 553 (Minn. 1975). We held that a

statewide unit was appropriate. Id. at 562. Among the reasons for our decision was that

section 179.71 (the 1974 provision parallel to section 179A.09, subdivision 1) provided

that the Bureau “shall place particular importance upon the history and extent of

organization and the desires of the petitioning employee representatives” and three out of

the four employee representatives agreed that the appropriate unit was the statewide unit.

Id. at 561.

Finally, under section 179A.09, subdivision 1, the Bureau is required to place

“particular importance” on the history of organization of employees of the public employer.

Taft-Hartley Act. See generally Eli Rock, The Appropriate Unit Question in the Public
Service: The Problem of Proliferation, 67 Mich. L. Rev. 1001, 1004 (1969) (noting that
the Minnesota Legislature’s decision to permit a government agency to rely on the “extent
of employee organization” expressly moved in the direction of “further proliferation” of
bargaining units).

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See May 2002 AFSCME-Anoka County Decision at 2 (history means “bargaining

history”). This factor will be discussed in more detail below.

One further comment about the structure and language of PELRA is necessary. In

contrast to the multi-factor framework set forth in section 179A.09, subdivision 1, for

making unit determination decisions for county or other local governments’ employee

bargaining units, the Legislature adopted a different approach for statewide employees.

The Legislature expressly defines in statute the appropriate units for executive branch

employees of the State of Minnesota, Minn. Stat. § 179A.10, subd. 2 (2022) (establishing

in statute 19 distinct bargaining units for employees of the state executive branch). The

Legislature similarly defined the appropriate units for judicial branch employees, Minn.

Stat. § 179A.101 (2022), employees of the State Board of Public Defense, Minn. Stat.

§ 179A.104 (2022), and the University of Minnesota, Minn. Stat. § 179A.11 (2022). In

addition, “[f]or school districts, unit means all the teachers in the district.” Minn. Stat.

§ 179A.03, subd. 2. Stated more simply, the Legislature mandated specific categorical

bargaining units for certain groups of public employees, but it did not do so for county and

other local employees. For county and local employees, the Legislature directed that the

Bureau use a multi-factor balancing test in which particular emphasis is placed on

employee autonomy, self-determination, and preferences.

In summary, under the Public Employment Labor Relations Act, the preferences of

the employees seeking to organize and their representatives must be afforded particular

importance by the Bureau when deciding whether the unit those employees and

representatives have proposed is an appropriate unit. That is shown by the expressly stated

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purposes of PELRA, which favor the right of employees both to organize for purposes of

negotiating with public employers (it is the fact of organization and negotiation that allows

for labor peace) and to choose the representative they prefer, as well as the specific

language of section 179A.09, which limits the scope of the Bureau’s authority to determine

whether a proposed unit is an appropriate unit.

B.

The Bureau’s approach to determining whether the unit proposed by the Union and

the Sheriff’s Office employees it was representing was the appropriate unit was quite

different from the framework set forth in PELRA and, specifically, section 179A.09,

subdivision 1. The Bureau’s approach is best summarized in its own words in the decision:

It is the Bureau’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.

Anoka Cnty. & L. Enf’t Lab. Servs., Inc., BMS Case No. 22-PCE-0989, at 11 (June 2,

2022). Although the Bureau now seeks to disavow the statement as loose language, I see

no reason not to take the hearing officer at her word. The decision in this case as a whole

is permeated with an overriding concern about overfragmentation and a preference for

“four basic bargaining units.” 10 In fact, the hearing officer was being admirably honest

about the Bureau’s policy and practice. The hearing officer explained in great detail that

10
The four basic bargaining units for counties identified by the Bureau in its decision
are units of essential employees, highway maintenance and public works employees, social
service department employees, and county-wide office-clerical-administrative, technical,
and professional employees. Anoka Cnty. & L. Enf’t Lab. Servs., Inc., BMS Case No.
22-PCE-0989 at 5 (citing AFSCME Council No. 65 & Cnty. of Morrison, BMS Case No.
99-PCE-402, at 2 (Jan. 4, 1998) [opinion attachment]).

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the Bureau has applied a presumption against any proposed bargaining unit that does not

fall within one of the four basic bargaining units for several decades. Id. at 5–6 (citing

AFSCME Council No. 65 & Cnty. of Morrison, BMS Case No. 99-PCE-402, at 2 (Jan. 4,

1998) [opinion attachment]; AFSCME Council No. 65 & Cnty. of Redwood, BMS Case No.

90-PCE-2003, at 3 (Sept. 12, 1989) [opinion attachment]; AFSCME Council No. 65 and

Cnty. of Sibley, BMS Case No. 83-PR-48-A, at 4–5 (Sept. 10, 1982) [opinion attachment]).

I agree with the court that the Bureau’s stated and applied policy—that absent

compelling reasons otherwise or stipulation by the parties, it will refuse to certify a county

employee bargaining unit that deviates from the four-basic-bargaining-unit structure—is

inconsistent and in conflict with section 179A.09, subdivision 1. Indeed, the presumption

in favor of the four-basic-bargaining-unit structure turns on its head the analysis mandated

by the Legislature that gives a preference to the wishes of the organizing employees and

their chosen representative.

I conclude, however, that the problem with the decision in this case is not only that

the Bureau gave undue weight to overfragmentation concerns and the Bureau’s own policy

preference for four basic bargaining units. I would go further: the four-basic-bargaining-

unit structure should not be considered at all. Notably, while not expressly stated, the court

does not express disagreement with this broader conclusion. The Bureau’s policy of

requiring every group of county employees who wish to organize a union to organize all

the employees in a unit that conforms to one of the Bureau’s preordained boxes unless they

can get the county employer to agree to their unit or show some other compelling

circumstance is wholly arbitrary. In sum, under the Bureau’s approach, the legislative

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emphasis on employee self-determination turns into a “state-agency-knows-best” process

which often may be (as in this case) a roadblock to employee self-determination and,

indeed, shifts power away from the employees the statute is designed to empower and

instead defers to the wishes of the employer by requiring, in all but the most compelling

cases, that the employer sign-off before departing from the four-basic-bargaining-unit

presumption.

1.

Nothing in section 179A.09, subdivision 1, suggests that county and other

local government bargaining units must presumptively fall within very specific

defined occupational groups—essential employees, highway maintenance and public

works employees, social service department employees, and county-wide

office-clerical-administrative, technical, and professional employees. The statute makes

no mention of four basic bargaining units. The Bureau’s approach is contrary to the

multi-factor balancing approach set forth in the statute. Further, the Legislature did adopt

in statute the approach of establishing preordained occupational bargaining groups for

employees of the state executive branch, the court system, the State Board of Public

Defense, the University of Minnesota, and for teachers in school districts. Minn. Stat.

§§ 179A.10, subd. 2, 179A.101, 179A.104, 179A.11, and 179A.03, subd. 2. If the

Legislature had intended that the Bureau determine whether a bargaining unit of county or

other local government employees is appropriate based on a preordained occupational or

departmental structure—if it had intended that the Bureau adopt something like the

four-basic-bargaining-unit structure it uses as a matter of Bureau policy—it would have

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done so because it plainly knows how to do so. Firefighters Union Loc. 4725 v. City of

Brainerd, 934 N.W.2d 101, 110 (Minn. 2019) (refusing to read a motive element into one

part of a statute where the Legislature expressly included a motive element in another

related part of the statute). And, most fundamentally, the Bureau’s presumption that its

four-basic-bargaining-unit will apply absent compelling reasons otherwise is directly

contrary to the Legislature’s directive that the Bureau “place particular importance upon

the history and extent of organization, and the desires of the petitioning employee

representatives.” Minn. Stat. § 179A.09, subd. 1.

2.

The conclusion that the Bureau’s policy is inconsistent with the statute and that the

presumptive four-basic-bargaining-unit structure is arbitrary also becomes evident when

one considers the evolution of the Bureau’s approach to unit determination decisions. A

review of these cases demonstrates that the Bureau adopted its policy by ignoring the

statutory language in section 179A.09, subdivision 1, and imposing instead its conception

of what an appropriate unit is. In particular, the history of the Bureau’s determination

decisions shows that it started off by affording great deference to the bargaining unit

proposed by the organizing employees and their representative. In the 1980s, however, the

Bureau’s rationale and approach changed with decisions focused on an overriding concern

about fragmentation and no mention of the particular importance to be placed on the history

and extent of organization and the desires of the petitioning employee representative.

By the late 1980s, this focus on fragmentation had hardened into the Bureau’s rigid

four-basic-bargaining-unit rule.

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 Early unit determination decisions of the Bureau and the Public Employment

Relations Board focused on the statutory language in what is now section 179A.09,

subdivision 1, and appropriately placed heavy weight on the desires of the organizing

employees and their representative. For instance, in 1977, AFSCME Council 65 sought to

organize all non-teaching employees of Independent School District 480 excluding

employees who work less than 14 hours per week or 100 days per year. In re AFSCME

Council No. 65 & Indep. Sch. Dist. No. 480, PERB Case No. 77-PR-802-A, at 2 (Nov. 10,

1977) [opinion attachment]. At the urging of the school district, the Bureau determined

that the employees should be separated into six distinct bargaining units. Id. at 1–2. The

Bureau further determined that employees in four of the six units demonstrated sufficient

interest in organizing and ordered a representation election for those units, but employees

in two of the six units did not demonstrate sufficient interest in organizing and did not order

an election. Id. at 2.

The Public Employment Relations Board reversed the Bureau’s decision and

ordered that one general unit of employees, rather than four separate units of employees,

was the appropriate unit. Id. at 3. The Public Employment Relations Board reasoned

that section 179.71, subdivision 3 (1976)—the earlier version of section 179A.09,

subdivision 1—governed. Id. The Public Employment Relations Board explained that

AFSCME 65 desired a single unit of employees and “[s]ection 179.71, subd. 3, makes it

clear that the desires of the petitioning employee representative shall be given particular

importance.” Id. at 4. The Public Employment Relations Board also observed:

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 [T]he role of the . . . Director is to determine if the unit petitioned for is “an”
appropriate bargaining unit. No provision of the Public Employment Labor
Relations Act mandates that collective bargaining in a proposed unit which
is otherwise appropriate is to be denied simply because another unit may be
conceptually “most” appropriate.

Id. In other words, the Public Employment Relations Board determined that one broader

unit of employees (although not all employees) was appropriate—even if some other unit

would be more appropriate—because that was the petitioning employee representative’s

desire. The Bureau amended its order accordingly. AFSCME Council No. 65 & Indep.

Sch. Dist. No. 480, BMS Case No. 77-PR-802-A (Dec. 5, 1977) [opinion attachment].

In 1981, the Minnesota School Employees Association sought to organize a unit of

employees of Independent School District 690, consisting of cooks, custodians,

secretarial/clerical, and teacher aids. Minn. Sch. Emps. Ass’n & Indep. Sch. Dist. 690, BMS

Case No. 81-PR-947-A, at 1 (May 27, 1981) [opinion attachment]. The school district

argued that there should be separate bargaining groups for each occupation as well as for

bus drivers. Id. at 2.

The Bureau agreed with the Minnesota School Employees Association (it excluded

five employees because they were supervisory employees or confidential employees) and

certified a unit of all non-teacher employees of the school district. Id. at 3. The Bureau

explained:

In determining appropriate units, the Bureau is directed by the statutory
criteria established by Minn. St. 179.71, subd. 3. The application of these
criteria to the employment relationship existing in school districts requires
the balance between the community of interest of employees and excessive
fragmentation of bargaining structure. At some point the Bureau’s general
policy of separate units for office, food service, maintenance, and

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 transportation employees conflicts with unit fragmentation because of the
number of employees involved.

Minn. St. 179.71, subd. 3, emphasizes that in determining appropriate units
the [Bureau] “shall place particular importance upon the history and extent
of organization and the desires of the petitioning employee representatives.”

Id. at 2 (emphasis added) (citing AFSCME Council No. 65 & Indep. Sch. Dist. No. 480,

PERB Case No. 77-PR-802-A at 2). Once again, the Bureau settled on a broader unit

covering more employees (even though its then-preference was separate units for different

occupational groups) because that was the petitioning employee representative’s desire.

In 1982, the Bureau made the first turn toward its current policy, absent compelling

reasons otherwise or stipulation by the parties, to only certify four basic bargaining units

in counties to prevent overfragmentation of bargaining units. That year, AFSCME

Council 65 sought to organize a bargaining unit of all full-time clerical, technical, and

professional employees of Sibley County, except that the union did not want to include

employees in the county’s Public Health Nursing Department. AFSCME Council No. 65

& Cnty. of Sibley, BMS Case No. 83-PR-48-A at 5. Sibley County argued that the

employees in the Public Health Nursing Department should be included. Id. The Bureau

determined that the Public Health Nursing Department employees should be included in

the unit. Id.

The Bureau quoted Minnesota Statutes section 179.71, subdivision 3 (1982), but

unlike its prior decisions, the Bureau made no mention whatsoever in its analysis of the

statutory requirement that it must “place particular importance upon the history and extent

of organization and the desires of the petitioning employee representatives.” Minn. Stat.

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§ 179.71, subd. 3 (1982). Rather, the Bureau for the first time and without citation to

authority asserted that it had a “policy of determining separate bargaining units for

certain employee categories.” AFSCME Council No. 65 & Cnty. of Sibley, BMS Case

No. 83-PR-48-A at 4–5. Citing the Minnesota School Employees Ass’n decision discussed

above (but without reference to its reliance on the preferences of the organizing employees

and their representative) the Bureau went on:

Law enforcement (or essential employees), public works, and employees
subject to the Minnesota Merit System are traditionally assigned to different
units.

The establishment of a clerical-technical-professional unit or “courthouse”
unit versus departmental units is at the center of the dispute in this case.
AFSCME Council No. 65 argues for the exclusion of the Public Health
Nursing Department from a base clerical-technical-professional unit of other
county employees. The Bureau finds that there is a definite community of
interest between the Public Health Nursing Department and other county
employees. This community of interest is reflected by common systems of
compensation and job classification, occupational titles, supervisory
structure, and a single personnel policy. Acceptance of the AFSCME
Council No. 65 argument could result in a bargaining structure of individual
departments. Such a structure, in the Bureau’s opinion, would lead to
fragmented bargaining disadvantageous to the employees, the union, and the
employer. As we found in Minnesota School Employees Association v.
Independent School Dist. No. 690 . . . there is a distinct balance between the
narrow community of interest of some employees and the excessive
fragmentation of the bargaining structure.

Id. at 5. Here we see the emergence of the Bureau’s four-basic-bargaining-unit structure

policy and its overriding concern about fragmentation. The Bureau justified its new policy

of “determining separate bargaining units for certain employee categories” as opposed to

department-based bargaining units by focusing on some of the factors included in the

statute—common systems of compensation and job classification, occupational titles,

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supervisory structure, and a single personnel policy 11—as part of its “community of

interest” analysis. But as noted above, in justifying this policy, the Bureau entirely ignored

consideration of other factors—those factors upon which the Legislature directed the

Bureau to place “particular importance.”

More critically, the Bureau also imposed its own policy preference against

“excessive fragmentation” based on “the Bureau’s opinion” about what is best for the

employees, the union, and the employer. By insisting that it knows best what’s good for

the employees and the union, the Bureau fundamentally shifted its role in unit

determination proceedings. To put a finer point on it: rather than doing as the Legislature

directed and giving particular deference to the choices made by the organizing employees

and their representatives, the Bureau agglomerated to itself the power to decide what’s best

while entirely ignoring the “extent of organization” and “the desires of the petitioning

employee representatives.” Minn. Stat. § 179A.09, subd. 1.

By 1989, the Bureau’s approach to unit determination decisions hardened into its

current policy approach. In AFSCME Council No. 65 & County of Redwood & Law

Enforcement Labor Services, Inc., BMS Case No. 90-PCE-2003 at 6, the Bureau

determined that all office, clerical, technical, and professional employees of Redwood

County, except for maintenance employees in the Highway Department, Social Services

11
The statutory language described these factors as “the principles and the coverage
of uniform comprehensive position classification and compensation plans of the
employees, involvement of professions and skilled crafts and other occupational
classifications [and] relevant administrative and supervisory levels of authority.” Minn.
Stat. § 179.71, subd. 3 (1982).

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Department employees, supervisory, confidential, and essential employees constituted a

proper bargaining unit. The Bureau rejected AFSCME Council 65’s attempt to exclude

Public Health Nursing Service employees from the unit. Id. at 3–4.

What is more important for our purposes is how the Bureau described its approach

to unit determination:

In establishing the bargaining structure for county government the Bureau
has followed a general policy favoring four separate appropriate units.
Absent compelling reasons, units of broad occupational groups composed of
essential, highway maintenance, social service department, and office-
clerical-technical-professional employees are determined appropriate.

. . . Such a bargaining structure weighs the unit determination criteria
of [PELRA], the organizational structure of county government, and the
community of interest of the employees involved. The record in this case
supports a . . . finding that a unit of office-clerical-technical-professional
employees is appropriate.

Id. at 3 (emphasis added) (footnote omitted). By the late-1980s, then, the Bureau’s rule

that, absent compelling circumstances, the only appropriate bargaining unit for county

employees is one of the four “broad occupational groups” was fully formed. The Bureau

also plainly stated that this rule is based not only on the legislative directive in

section 179A.09, subdivision 1, but also on “the organizational structure of county

government”—an amorphous concept nowhere mentioned in statute—and the community

of interest of the employees involved. 12 Moreover, as we saw in the discussion of AFSCME

Council No. 65 & County of Sibley, BMS Case No. 83-PR-48-A, the Bureau made

12
In AFSCME Council No. 65 and County of Morrison, BMS Case No. 99-PCE-402
at 3, the Bureau made clear that the “ ‘community of interest’ of all County employees” is
a concept distinct from the factors set forth in section 179A.09, subdivision 1.

C-24
absolutely no reference to the statutory directive that it “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 (emphasis added). Rather, in

contravention of the statutory directive that the Bureau “shall consider” all the factors

explicitly listed in section 179A.09, subdivision 1, the Bureau considered in passing only

a subset of the statutory factors: a common system of compensation, a common

organizational and supervisory structure, and a common personnel policy. AFSCME

Council No. 65 & Cnty. of Redwood & L. Enf’t Lab. Servs., Inc., BMS Case

No. 90-PCE-2003 at 4.

In summary, the Bureau has adopted and applies a policy to only certify four basic

bargaining units in counties to prevent overfragmentation of bargaining units, absent

compelling reasons otherwise or stipulation by the parties. That policy, however, is wholly

unmoored from the statutory language of PELRA and, in particular, section 179A.09,

subdivision 1, and, as such, exceeds the Bureau’s authority. In developing the policy, to

the extent the Bureau considered the statute, it focused solely on a subset of the factors

identified in the statute and ignored other statutory factors that the Legislature told the

Bureau it “shall” consider: geographical location, the recommendation of the parties,

and—above all—the “particularly importan[t]” factors of history and extent of

organization and the desires of the petitioning employee representatives. Minn. Stat.

§ 179A.09, subd. 1. It relied on earlier decisions where it approved broader units over

narrow units which were expressly based on the employees’ unit preferences and turned

that into a principle that applies even in direct contravention of (and without even

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mentioning) the employees’ preferences. More critically, this history makes clear that the

Bureau imposed its own policy opinions and preferences about what is the best bargaining

unit for the employees, the union, and the employer instead of abiding by the limits on the

scope of its authority in unit determination decisions imposed by the Legislature, which

directed it to give preference to the bargaining unit proposed by the organizing employees

and their representatives.

3.

The hearing officer in this case—and the County in its argument to us—also relied

on our decision in Minnesota State College Board v. Public Employment Relations Board,

228 N.W.2d 551 (Minn. 1975), to support the Bureau’s four-basic-bargaining-unit policy

and its strong preference against overfragmentation. The case does not support the policy.

In Minnesota State College Board, we faced the question whether the appropriate

bargaining unit for Minnesota’s then seven state colleges and universities was a single state

unit or each individual college. 228 N.W.2d at 553. We considered the question under the

statutory framework in place at the time. Id.

At the time, PELRA authorized the Bureau to determine an appropriate unit for

public employees generally using criteria substantially similar to the criteria set forth in

current section 179A.09, subdivision 1. See Minn. Stat. § 179.71, subd. 3 (1974). In a

separate section, the statute also included specific provisions related to state employees (as

opposed to employees of county and other local governments); a category which included

employees of the state colleges and universities. In particular, Minn. Stat. § 179.74

provided that “the director of mediation services shall define appropriate units of state

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employees as all the employees under the same appointing authority [as defined in

section 43.01, subdivision 11] except where professional, geographical or other

considerations affecting employment relations clearly require appropriate units of some

other composition.” Minn. Stat. § 179.74, subd. 4 (1974). In other words, PELRA

constrained the Bureau’s authority to determine appropriate units for state employees by

creating a strong presumption that the appropriate unit should include all employees under

the same appointing authority. No such language existed then or now for county and other

local governments.

We determined that the appointing authority for employees of the state college and

university system was the State College Board and not the presidents of the individual

colleges and universities. Minn. State Coll. Bd., 228 N.W.2d at 560. Consequently, under

section 179.74, subdivision 4, the critical question was whether professional, geographical,

or other considerations affecting employment relations clearly required that the

appropriate units were each individual college or university. Id.

We concluded that other considerations did not clearly require that the individual

colleges and universities were the appropriate units. Among other things, we made several

specific observations about the state college and university system:

(1) The legislature has moved to coordinate the entire state-wide college
system under the auspices of the State College Board and has therefore
indicated an intent that uniformity be established.
(2) The SCB has implemented this intention and has promulgated rules which
govern each institution on a state-wide, rather than individual, basis.
(3) The system-wide unit, in all aspects, has proved to be a more efficient
and economical method of administering the state college system.

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 (4) Competition between college units, both in the physical plants and in
employer-employee benefits is reduced upon utilization of the state-wide
system, because it reduces the possibility of varying benefits.
(5) Past utilization of the state-wide approach indicates that it has not stifled
individualized interests at each of the colleges; that distances and locations
have not prevented effective coordination between the faculty and the [State
College Board]; that a substantial majority of the state college system faculty
favors a state-wide unit; and that a state-wide unit has been established for
the 18 junior colleges incorporating a master contract with flexible
provisions for each campus.

Id. at 562.

Quite pertinent to this case, citing the language in PELRA that the Bureau “shall

place particular importance upon the history and extent of organization and the desires of

the petitioning employee representatives,” we found it significant that three out of the four

employee representatives agreed that the appropriate unit was the statewide unit. Id. at

561. We quoted with approval the opinion of the members of the Public Employment

Relations Board who stated that “[s]ince [the employer and employee representatives] are

the parties who may in the future have to agree upon a compact on which their relationship

will be governed . . . great weight must be given to their wishes.” Id.

In summary, in Minnesota State College Board, we determined that the appropriate

bargaining unit for faculty member employees of the state colleges and universities was a

statewide unit. In reaching that conclusion, we reasoned that (1) for statewide employees,

PELRA expressed a strong preference for a unit that included all employees under the same

appointing authority—in the case of state college and university faculty, the State College

Board, (2) in establishing the state college and university system, the Legislature

demonstrated a preference for uniformity, and (3) in accordance with the 1974 version of

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current section 179A.09, subdivision 1, great weight should be given to the preference of

the representatives of the employees seeking to organize that the unit be the statewide unit.

And it is in that context that our statement that PELRA “and its statutory

coordinates attempt to eliminate the ‘overfragmentation’ which might result from the

certification of individual bargaining units” must be read. Minn. State Coll. Bd.,

228 N.W.2d at 561 (emphasis added). This is not a statement about PELRA generally. For

statewide employees, the Legislature itself expressed in the text of the statute a preference

against overfragmentation by defining the units in statute: unless clearly required by other

considerations, the appropriate bargaining units included all employees under a single

appointing authority—in the case of state college and university faculty, the State College

Board. See Minn. Stat. § 179.74 (1974). We reviewed the record and determined that there

was “little direct testimony in favor of individual campus units.” Minn. State Coll. Bd.,

228 N.W.2d at 561–62. We further concluded that there was not enough evidence to

clearly overcome the strong presumption that the appropriate unit for faculty at state

colleges and universities should include all faculty members in the system because they

were all appointed by the State College Board.

None of those considerations apply in unit determination decisions involving county

and other local government employees. The Legislature did not statutorily define the

appropriate unit for local government employees as it did for state employees. Rather, for

local government employees, the limitations on the Bureau in making unit determination

decisions are set forth exclusively in section 179A.09, subdivision 1, which identifies a

number of factors the Bureau “shall consider,” including three factors the Bureau must

C-29
“place particular importance upon.” Further, while it is true that the list of factors is

non-exclusive and allows the Bureau to consider “other relevant factors” like concerns

about overfragmentation, those concerns must be subordinated to the preferences of the

employees being organized and their representative. Minn. Stat. § 179A.09, subd. 1.

Indeed, that is precisely what we did in our decision in Minnesota State College Board,

228 N.W.2d at 561. That is not to say that the preferences of the employees being

organized and their representative always prevail, but it certainly means that the Bureau

cannot impose the opposite presumption that the preferences of the employees being

organized and their representative should be ignored if they request a unit other than one

of the four basic bargaining units because of the Bureau’s strong policy preference against

overfragmentation. Our decision in Minnesota State College Board does not support the

Bureau’s position in this case.

C.

With all this background in mind, I turn to how I would resolve this appeal.

1.

First, I conclude that we should reverse the decision of the Bureau on the ground its

decision is arbitrary and contrary to law. The Bureau premised its decision on the ground

that the unit proposed by the Union and the employees it represents does not match one of

the four basic bargaining groups and the Union did not present compelling reasons that a

different unit should be authorized. The concept of four basic bargaining groups itself is

an arbitrary construct of the Bureau. PELRA says nothing of the sort when it comes to

local government employees. In contrast to a set of preordained categories of

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presumptively appropriate bargaining units—or even to the notion that occupational groups

are favored over departmental or other groups—section 179A.09, subdivision 1, requires

consideration of several distinct factors on a case-by-case basis. And the fact that the

statute provides for legislatively mandated categories of presumptively appropriate

bargaining groups for employees of the state executive branch and other groups of public

employees but not for employees of counties and other local governments only makes that

conclusion clearer.

In short, the Bureau’s policy for county unit determination decisions is arbitrary and

directly contrary to section 179A.09, subdivision 1. 13 Because the Bureau’s decision in

this case was expressly driven by that policy—not only did the Bureau expressly say as

much, but the policy permeates the decision—I agree with the court’s decision to reverse

and remand to the Bureau to properly apply the factors set forth in section 179A.09,

subdivision 1.

13
The conclusion that the Bureau’s decision was arbitrary and contrary to the statute
is also shown when compared to another recent Bureau unit determination decision. In
Law Enforcement Labor Services & Anoka County, BMS Case No. 21-PCE-0336, at 2, 5
(Feb. 24. 2021), the Bureau found appropriate a unit of office investigators within the
Midwest Medical Examiner’s Office (an agency within the County Administration
Department of Anoka County). The Bureau reasoned:
Having established multiple essential units with the County diminishes the
argument against fragmentation. The particular importance on desires of the
petitioning employee representative, and history and extent of organization
strongly favor the determination of an appropriate unit of Office
Investigators. The principles and the coverage of uniform comprehensive
position classification and compensation plans of the employees, professions
and skilled crafts, relevant administrative and supervisory levels of authority,
and geographical location all favor and disfavor the Employer’s arguments
given some employees share interest while others do not.
Id. at 6.

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 2.

In its decision, the Bureau also misapplied several of the statutory factors and

improperly balanced the statutory factors. As a preliminary matter, the balancing under

section 179A.09, subdivision 1, is not a list of items that can be assigned to the employee

or the employer and the side with the most boxes checked prevails; it requires active

balancing on a case-by-case basis in service of answering the essential question of whether

the bargaining unit proposed by the organizing employees and their representative is an

appropriate unit (again, not the most appropriate unit or the Bureau’s preferred unit). Cf.

State v. Mikell, 960 N.W.2d 230, 245 (Minn. 2021) (discussing the multi-factor balancing

test in speedy-trial cases); see also Olson v. One 1999 Lexus, 924 N.W.2d 594, 606 (Minn.

2019) (citing Mathews v. Eldridge, 424 U.S. 319 (1976)) (observing that the Mathews

factors applied in procedural due process cases “are more than a checklist of items to be

ticked through selectively or by rote”). In addition, I also observe that it is more useful and

consistent with the statute to ask whether a factor suggests that the proposed bargaining

unit is appropriate or inappropriate; not whether the factor favors the employees and their

representative or the employer.

Further, the Bureau applied the statutory criteria set forth in section 179A.09,

subdivision 1, to answer the wrong question. Instead of applying those criteria to answer

the question of whether the bargaining unit proposed by the Union was an appropriate

unit (the proper question), it instead applied the statutory criteria to answer the

question of whether there was a reason to depart from the Bureau’s preferred

four-basic-bargaining-unit structure. Indeed, the Bureau said so explicitly: “The Bureau’s

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view in favor of four broad occupationally based bargaining units in county government is

a general preference and subject to examination considering the statutory criteria outlined

in Minn. Stat. § 179A.09 and the facts of the particular case.” Anoka Cnty., BMS Case No.

22-PCE-0989 at 6. The fact that the Bureau was asking and answering the wrong question

informed how it applied the statutory factors and that led to several of its legal errors in

doing so. And for this reason, my analysis of the legal errors in the Bureau’s consideration

of the statutory factors flows directly from the court’s holding in this case that the Bureau

started its analysis in the wrong place. The court simply did not follow through on the

implications of its holding, but rather left it to the Bureau to reconsider its decision of the

factors in light of that holding.

With that background in mind, I now consider the individual factors set forth in

section 179A.09, subdivision 1.

The principles and the coverage of uniform comprehensive classification and

compensation plans suggest that the proposed bargaining unit is not appropriate. I disagree

with the Union that the Bureau cannot consider how employees within the proposed

bargaining unit compare with other county employees who would not be part of the

bargaining unit with regard to classification and compensation. Such a comparison is

inherent in assessing this factor. The focus is on the existence of a “uniform” and

“comprehensive” classification and compensation plan that treats employees in similar

roles in diverse county departments the same. Setting up a bargaining unit structure that

allows a group of employees in one department to negotiate pay and other conditions of

employment separate from similarly situated employees in other departments possibly

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limits the effectiveness, comprehensiveness, and uniformity of the wage scales and other

conditions of employment in a county-wide plan. The fact, however, that the employer

previously chose to impose a uniform and comprehensive classification and compensation

plan county-wide cannot be the tail that wags the unit determination dog. Otherwise, there

would be no reason to consider any other factors.

For the reasons stated in the Bureau’s decision, I agree that the “professions and

skilled crafts and other occupational classifications” factor is neutral in this case.

I disagree with the Bureau that the “relevant administrative and supervisory levels

of authority” indicates that the proposed bargaining unit is not appropriate. The Bureau’s

analysis of this factor was contrary to law. The Bureau reasons that because employees

within the unit report to different supervisors—although there is no dispute that the chain

of command ultimately runs to a single person (the elected Sheriff)—the administrative

and supervisory structure does not create a sufficient community of interest among the

clerical and technical employees within the Sheriff’s Office. The phrase “community of

interest” captures the concept that the employees in a bargaining unit should have a

sufficient “mutuality of interest . . . to assure the coherence among employees necessary

for efficient collective bargaining and at the same time to prevent a functionally distinct

minority group of employees from being submerged in an overly large unit.” Allied Chem.

& Alkali Workers, Loc. Union No. 1 v. Pittsburgh Plate Glass Co., Chem. Div., 404 U.S.

157, 172–73 (1971). “A cohesive unit—one relatively free of conflicts of interest—serves

the Act’s purpose of effective collective bargaining.” NLRB v. Action Auto., Inc., 469 U.S.

490, 494 (1985). Here, the Bureau made no finding and offered no explanation as to how

C-34
the administrative and supervisory structure for employees in the proposed bargaining unit

creates such incoherence so as to prevent the clerical and technical employees in the

Sheriff’s Office and the employer to effectively negotiate. Just saying or implying so is

not enough.

Further, it is hard to see how that would be the case, particularly since the

“dissimilarity of supervisory levels” is even greater under the unit the Bureau ultimately

concluded is appropriate. Anoka Cnty. & L. Enf’t Lab. Servs., Inc., BMS Case No.

22-PCE-0989 at 8. If a bargaining unit that includes all clerical and technical workers in

almost every department within the County is appropriate despite the inherent dissimilarity

of supervisory levels in such a unit, the dissimilarity of supervisory levels within the

Sheriff’s Office should not render the proposed unit inappropriate. The flaw in the

Bureau’s reasoning arises from the fact that it improperly started its analysis of this factor

against the backdrop of its “general preference” for four basic bargaining groups. Id. at 6

(“The Bureau’s view in favor of four broad occupationally based bargaining units in county

government is a general preference and subject to examination considering the statutory

criteria outlined in Minn. Stat. § 179A.09 and the facts of the particular case.”). In other

words, the Bureau’s reasoning demonstrates that it impermissibly approached this factor

from the position that the appropriate group for the employees seeking to organize in this

case is a broad group of all clerical and technical employees in Anoka County and then

assessed whether the factor suggested that the narrower proposed bargaining unit was

better than the Bureau’s preference.

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 At best, this factor is neutral. The better position may be that because the employees

in the Sheriff’s Office all ultimately report to one individual who is independently elected

by, and independently accountable to, the voters of Anoka County, the factor supports a

determination that the proposed bargaining unit is an appropriate unit. But the Bureau can

resolve that issue applying the proper inquiry.

For similar reasons, I find the Bureau’s somewhat myopic assessment of geographic

location to be contrary to law. The record shows that the employees seeking to organize

work in two locations (the jail in downtown Anoka and the Sheriff’s Office in Andover)

and also that most of the employees only interact with other Sheriff’s Office employees,

and not other county employees, on a daily basis, presumably because other county

employees do not generally work in the jail or the Sheriff’s Office locations. Thus, within

each of the two geographic locations of the Sheriff’s Office, there is significant

commonality among the employees.

That suggests that the proposed bargaining unit is an appropriate unit. And as with

the administrative and supervisory levels of authority, it defies common sense to conclude

that a bargaining unit that includes all clerical and technical workers in almost every

department who work in even more locations is appropriate despite the geographic

diversity, but that a bargaining unit that includes employees seeking to organize within the

Sheriff’s Office who work at two locations where the vast majority of employees work for

the Sheriff’s Office is inappropriate.

The “recommendation of the parties” factor focuses on whether the parties have

agreed on a proposed bargaining unit. See Minn. R. 5510.0410, subp. 3; Minn. R.

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5510.1810, subp. 2 (2023) (stating requirements for a joint-party petition for unit

clarification). It is important to note for consideration on remand that the word

“recommendation” is singular—it refers to a joint recommendation of the parties; it does

not suggest that the “positions” of the employees seeking to organize and the employer are

entitled to equal weight in the analysis of an appropriate unit. Indeed, the statutory history

shows that the Legislature affirmatively eliminated any independent consideration of the

desires of the employer from the list of factors that “shall” be taken into account in the unit

determination decision. See supra n.6. Because the Union and Anoka County made no

joint recommendation, the factor is irrelevant in this case.

I agree with the Bureau that the relevant history of organizing supports a conclusion

that the proposed bargaining unit is an appropriate unit, although it is not clear the Bureau

gave the extra weight to this factor that the statute requires. There is no dispute that the

Union already is the exclusive representative for the majority of employees in the Sheriff’s

Office. In addition, previous efforts to organize all of the clerical and technical employees

of Anoka County failed. See Minn. Teamsters Pub. & L. Enf’t Emps. Union, Loc. No. 320

& Cnty. of Anoka, BMS Case No. 90-PCE-3223 (Oct. 16, 1990) (noting that Teamsters

320 did not prevail in an election to be certified as exclusive representative for a unit of all

clerical and technical employees of Anoka County) [opinion attachment]; see also Anoka

Cnty. & AFSCME Council 5, BMS Case No. 22-PCE-1956, at 2–5 (Aug. 4, 2022) (setting

forth the history of efforts to organize all clerical and technical employees of Anoka

County). The Bureau correctly explained in its decision:

C-37
 We . . . find persuasive the fact that an appropriate unit consisting of the
entire clerical/technical employee class was certified and the parties never
reached a collective bargaining unit. We take this as strong evidence that a
broad bargaining unit would not lead to stable and constructive labor
relations.

Anoka Cnty. & L. Enf’t Lab. Servs., Inc., BMS Case No. 22-PCE-0989 at 9 (quoting L.

Enf’t Lab. Servs., Inc. & Anoka Cnty., BMS Case No. 21-PCE-0336, at 5 (Feb. 24, 2021)

[opinion attachment]); see also L. Enf’t Lab. Servs. and Anoka Cnty., BMS Case No.

21-PCE-0336 at 5 (stating that “[w]e also find persuasive the fact that an appropriate unit

consisting of the entire clerical/technical employee class was certified and the parties never

reached a collective bargaining unit. We take this as strong evidence that a broad

bargaining unit would not lead to stable and constructive labor relations”). On remand, the

Bureau should place particular importance on this factor as required by the statute.

The Bureau committed legal error in its assessment of the extent of organization,

another factor upon which the Bureau must place extra emphasis. As discussed above,

extent of organization refers to “[t]he scope of the union’s organizing campaign, that is,

the groups of employees on which the union has focused its organizing efforts,” The

Developing Labor Law, supra, at 11-10, which is assessed by considering the “grouping

of employees [that] has expressed support for the union.” May 2002 AFSCME-Anoka

County Decision at 3. The employees who have expressed support for the union are the

clerical and technical employees in the Sheriff’s Office. That indisputably supports a

conclusion that the proposed bargaining unit is an appropriate unit. See L. Enf’t Lab. Servs.

& Anoka Cnty., BMS Case No. 21-PCE-0336 at 4 (“In the instant case the Union has

support from the [group of employees seeking to be organized as a unit]. This factor

C-38
supports the Union’s position [that] there is a community of interest.”); see also Minn. Stat.

§ 179A.01(c)(1) (providing that the balancing of the interests of public employees, public

employers and the public is best served by “granting public employees certain rights to

organize and choose freely their representatives” (emphasis added)).

The Bureau disagreed for two reasons. First, it placed the burden on the Union to

prove that no other clerical and technical employees in Anoka County wanted to organize

and be represented by the Union. But nothing in the statute requires the Union to carry that

burden and the Bureau cites no authority to support that proposition. 14

Second, the Bureau noted that another group of Anoka County clerical and technical

employees—those that work in the Anoka County libraries—are also seeking to organize

under a different union. But all that tells us is that a different subset of clerical and technical

employees of Anoka County (a department quite distinct from the Sheriff’s Office) also

want to organize and choose a representative of their choice (a different representative) to

represent their collective interests. At most, the independent organizing efforts of the

Sheriff’s Office employees and the Anoka County library employees suggests that, under

an alternative set of historical and procedural facts, a unit consisting of clerical and

technical employees of the Sheriff’s Office and the Anoka County library system may also

be an appropriate union (although the purposes of the two departments are unique and the

union each group seeks to represent them is different). But the possibility that a single unit

14
In Anoka County and AFSCME Council 5, BMS Case No. 22-PCE-1956 at 11, the
Bureau noted that another union seeking approval of a bargaining unit of clerical, technical
and professional employees of the Anoka County library system reached out to other
Anoka County departments about organizing and received no response.

C-39
consisting of library and Sheriff’s Office employees may be appropriate does not mean that

the proposed bargaining unit limited to Sheriff’s Office employees is not “an” appropriate

unit—and that is the statutory question the Bureau is directed by the Legislature to answer.

More pertinent to this appeal, the existence of independent organizing efforts of two

subsets of Anoka County employees does not mean that a unit consisting of all currently

unorganized clerical and technical employees in the entire county is an appropriate unit.

In short, the extent of organization factor—that this group of employees from the Sheriff’s

Office has expressed an interest in organizing a bargaining unit consisting of the clerical

and technical employees in the Sheriff’s Office; not a bargaining unit that includes

employees of the Sheriff’s Office and employees of the Anoka County library system (let

alone all unorganized clerical and technical employees in the entire county)—supports the

conclusion that the Union’s proposed bargaining unit is an appropriate unit.

Even more damning to the Bureau’s conclusion in this case is that the Bureau

entirely disregarded one factor. Section 179A.09, subdivision 1, expressly states that it

“shall consider . . . the desires of the petitioning employee representatives”—the desires of

the Union. See May 2002 AFSCME-Anoka County Decision at 3 ; Minn. State Coll. Bd.,

228 N.W.2d at 561 (concluding that the fact that three of four employee representatives

supported a statewide unit supported the conclusion that a statewide unit was an appropriate

unit in light of the statutory language that the Bureau must “place particular importance”

on the desires of the petitioning employee representatives). The court and I can speculate

about why the Bureau failed to mention the factor, but it is undisputed that the Bureau

performed no analysis of the factor. And here, this factor strongly and unequivocally

C-40
supports the conclusion that the proposed bargaining unit is an appropriate unit. Not only

does the Union support the proposed unit, but LELS is an organization with a special

expertise in organizing and representing public employees in law enforcement

departments. The Bureau needs to give due weight to this factor.

Perhaps the most fundamental legal error made by the Bureau in this case is that it

flipped the statutory presumption on its head. The statute plainly states that the preferences

of the employees seeking to organize and their representatives as to the bargaining unit is

the paramount consideration in determining whether a proposed unit is an appropriate unit.

Here, the extent of organization and the desires of the petitioning employee representatives

support the conclusion that the proposed unit is an appropriate unit. As the Bureau

acknowledged in its decision, that conclusion is also supported by the other factor upon

which the Bureau must place particular importance—the organizing history among clerical

and technical workers in Anoka County.

Moreover, each of these factors properly considered tells us the larger, underlying

narrative that the Bureau’s rejection of the proposed unit and practical mandate that clerical

and technical employees must organize another, and likely larger, bargaining unit means

that the employees’ “rights to organize and choose freely their representatives” are

essentially denied. Minn. Stat. § 179A.01(c)(1). And that is not a surprise. The result is

built into and inherent in the Bureau’s presumptive four-basic-bargaining-unit policy. That

result is also directly contrary to what the Legislature said in PELRA. The fact that the

three paramount factors favor a determination that the proposed unit is an appropriate unit

C-41
must be the starting point for the Bureau when it considers whether the proposed unit is an

appropriate unit on remand.

For these reasons, I concur in the court’s decision to reverse the court of appeals and

remand the case to the Bureau to reconsider whether the bargaining unit of all clerical and

technical employees in the Anoka County Sheriff’s Office is an appropriate unit under

section 179A.09, subdivision 1.

PROCACCINI, Justice (concurring).

I agree with the court’s decision to reverse and remand this unit determination

proceeding to the Minnesota Bureau of Mediation Services (the Bureau). For the reasons

provided in parts A and B of his concurrence, I agree with Justice Thissen’s conclusion

that the Bureau’s stated four-unit policy presumption for county unit determinations is

arbitrary and contrary to law. I otherwise agree with the court that we should be wary of

second-guessing the Bureau’s fact-intensive and reasoned analysis of the factors set forth

in Minn. Stat. § 179A.09, subd. 1, even if we may have come to different conclusions

ourselves. Accordingly, I join parts A, B, and C.1 of Justice Thissen’s concurrence, but I

do not join part C.2.

C-42
 •
IN THE MATTER OF:
American Federation of State, Count"y and Municipal Employees
Council No. 65, Hibbing, Minnesota •
and
Independent School District No. 480, Onamia, Minnesota
CASE NO. 77-PR-802-A

DECISION
I. Procedural History
The American Federation of State, County and Municipal
Employees Council No. 65, Hibbing, Minnesota (hereinafter ·
"Council No. 65 11 ) appeals from a decision of the Director of the
Bureau of Mediation Services (hereinafter "Director") establishing
appropriate bargaining units for certain employees of Independent
School District No. ~80, Onamia, Minnesota. The Director
determined the foll~wing bargaining units to be appropriate:
UNIT NO. 1: -All secretarial/clerical employees, school
aides and school nurses of Independent School District
No. 48O, Onamia, Minnesota, who are employed for more
than 14 hours per week and more than 100 work days per
year, excluding supervisory, confidential, and all
other employees.
UNIT NO. 2: All Food Service employees of Independent
School District No. ·480, Onamia, Minnesota, who are
employed for more than 14 hours per week and more than
100 work days per year, excluding supervisory,
confidential, and all other employees.
UNIT NO. 3: All custodial and maintenance employees of
Inde endent School District No. 480 Onamia Minnesota,
who are employed for more ·than 1 h6urs ~er week and
more than · 100 work days per year, excluding supervisory,
confidential, and all other employees . t:
 • •

UNIT NO. 4: All employees of the . Transportation
Department of Independent School District No. 480, Onamia,
Minnesota, who are employed for more than 14 hours per
week and more than 100 work days per year, excluding
supervisory, confidential, and all other employees.
UNIT NO. 5~ All supervisory emplojees of Independent
School District No. 480, Onamia, Minnesota, who are not
required to be certificated by the.State Board of
Education, and who are employed for more than 14 hours per
week and more than 100 work days per year, excluding
confidential and all other employees.
UNIT NO. 6: All confidential employees of Independent
School District No. 480, Onamia~ · Minnesota, who are not
required to be certificated by the State Board of
Education, and who are employed for more than 14 hours per
week and more than 100 work days per year, excluding
supervisory and all other employees.
This matter was initiated by a petition filed with the
Director on May ' lO, 1977, by which Council No . 65 requested
determination of appropriate bargaining units and certification as
the exclusive representative. The petition requested the Director
to designate as an appropriate unit "All non-teaching employees
of Independent School District 480 excluding employees who work
• les·s than 14 hours per week or 100 days per· year."
On June 2, 1977, a hearing ·on the petition was conducted by
a hearing officer of the Bureau of Mediation Services. At the
hearing, Council N-0. 65 amended its petition to request a unit of
supervisory employees and a unit of confidential employees in
addition to a unit of all. other non-certificated employees of the
· school district. The school district requested the six units
ultimately determined by the Director.
In his decision, dated June 15, 1977, the Director found
that a sufficient showing of i nte r est had been submitted in Unit
Nos. 3, 4, 5, and 6 and, pursuant to an agreement of the parties,
he ordered · a mail ballot election for those units . As to Unit
Nos. 1 and 2, a sufficient showing of interest was not submitted
and no election was · ordered in those t~o units.
After receiving notice of this appeal filed by Council No. 65, •
the Director ordered the e lection ballots impounded before
-tabulation pending the decision of the Publi~ Employment Relations
Board.

2 -
 •
Pursuant to Minn. Stat. ~ 179 - 72,-subd. 4 (1976), this appeal
is before the Board on the record established by the Director.

II. Issue
Based on the record, was the Director correct in designating
a unit of secretarial/clerical employees, school aides, and school
nurses; a unit of food service employees; a unit of custodial
and maintenance employees; and a unit ·o r transportation employees,
rather than a single unit of non-supervisory, non-confidential
employees as requested? _i/ •

III. Decision
The Board, after consideration of the record, determines \
this appeal as follows:
One general unit of non-certificated employees, excluding
, supervisory and confidential employees, is found to be appropriate.
Unit Nos. 1, 2, 3, and 4, as found by the Director, should be
merged into one unit .
. Accordingly, the unit determination of the Director is
reversed as to Unit Nos.. 1, 2, 3, and 4 . The matter is remanded
to the Director for further proceedings not inconsistent with
this decision . ...1./

IV. Discussion
Appropriate bargaining units for public employees are to be
designated in accordance with the criteria set forth in Minn.
Stat. ~ 179-71, subd. 3 (1976), which p~ovides:
. . . In determining the appropriate unit he
/the Director/ shall take into consideration,.
along with o"fhe·r relevant factors, the

__1/ The parties agree that Unit Nos. 5 and 6 are ~ppropriate .
Since the issue is not presented, the Board takes no position
as to the appropriateness of these qnits.
In view of the disposition of this matter, the Board need riot
express any opinion as to whether the school nurs e was
properly placed in Unit No . 1 with · clerical 'and s ecretarial :
personn el,

3 -
 •
principles and the coverage of uniform
comprehensive position classification and
compensation plans of the employees,
involvement of professions and skilled crafts
and other occupational classifications, ·
relevant administrative and supervisory ievels •
of authority, geographical location, and the
recommendation of the parties, and shall place
particular importance upon the history and ·
extent of organization and the desires of the
petitioning employee represeritati ve·s.
As grounds for reversal of the Director's determination,
Council No. 65 contends that the statutory criteria quoted above
were not properly applied and that the Director's decision is
without factual support in the record. In particular, Council
No. 65 alleges -that proper weight was not accorded to the desires
_of the petitioning employee representative, the only statutory
criterion supported ~y the record .
Section 179. 71-, subd. 3, makes it clear that the desires of
the petitioning employee representative shall be given particular
importance. In the instant case, the record affords little basis
for. the Director's decision and makes no reference to the
specified statutory criteria.
The only factor cited by the Director to support his
determination is the varying work years of the employees. The
record . indicatei that the work years range from nine to twelv~
months. Work year length has little bearing on any other term or
condition of employment. In any event, the Director's reliance
on · this factor is seriously undermined by the fact that his
.decision places employees of varying work years in the same
bargaining unit . 'That single criterion of wor~ year length does
not warrant rejection .of the requested unit in view of the
.particular importance placed by the statute on the desires of the
pet~tioning employee representatives.
Pursuant to Minn. Stat. 9 179,71, subd. 3 (1976), the role
of the Board as well as that of the Director is to determine if
the unit petitioned for is "an" appropriate bargaining unit. No
provision of the Public Employment Labor Relations Act mandates
that collective bargaining in a proposed unit which is othe~wise
appropriate is to be denied simply because another unit may be
.conceptua:qy "most II appropriate. See University of Minnesota

..·

4
 • •
'\
•
.I '

Board of Regents, et al., PERB Case Nos .. 73-PR-571-A, 7lt-PR-59-A,
74-PR-66-A, 74-PR-93-A (November 26, 1975), aff'd. sub nom.
Reents of the Universit of Minnesota v. Public Em lo ment
Relations Board, No. 0 12 Ramsey County District Court,
September 26, 1977).
The Board finds that the requested general unit is appropriate.
The record provides no basis for the Director's decision to r~ject
the proposed unit. That part of his decision, accordingly, is
reversed and . _the matter remanded for further proceedings_ not
inconsistent with this opinion.

Don·L. Bye

0

Peter Oberm~
,.

Dated at Saint Paul, Minnesota,
November 10, 1977

,.
 • BMS •

BUREAU OF MFDIA110N SERVICES
State of Minnesota

January 4, 1998.

American Federation of State, County and Municipal Employees, Council No. 65,
Nashwauk, Minnesota
- and-
Cowity of Morrison, Little Falls, Minnesota

BMS Case No. 99-PCE-402

Before: Peter Obenneyer
Hearing Officer

CERTIFICATION UNIT DETERMINATION
INTRODUCTION

On Monday, December ·14, 1998, the Bureau of Mediation Services, State of Minnesota (Bureau)
conducted a hearing pursuant to a petition received from the American Federation of State, County
and Municipal Employees, Council 65, Nashwauk, Minnesota (Council 65). The petition requested
the detennination of an appropriate unit and certification of Council 65 as the exclusive
representative of certain employees of the County of Morrison, Little Falls, Minnesota (County).

PARTIES

At the hearing Mr. Steve Preble, Staff Representative, ·appeared on behalf of Council 65; and Mr.
Bernie Steffen, Labor Counsel, represented the County.

ISSUE

What is the appropriate unit for employees of the Court Administrators' Department of the County?

(612) 649-5421 FAX: (612) 643-3013 'ITO: 1-800-627•3529
1380 Energy Lane • Suit~ #2 • St. Paul, MN 55108-5253
An Equal Opportunity Employer

. Resp.Add.008
 Certification Unit Determination
BMS Case No. 99-PCE-402
Page 2 ... January 4, 1998

DISCUSSION

1. Introduction. The current Cowity bargaining structure is composed of three
appropriate units. Council 65 is the exclusive representative of certain employees in both the Social
Services Department and the Highway Department. Law Enforcement Labor Services, represents
essential employees of the Sheriff's Department. All other employees of the County are not
represented by a labor organiz.ation at the time this petition was filed with the Bureau.

At issue is whether the non-supervisory and non-confidential employees of the ,
Court Administrator's Department comprise an appropriate unit for the pwpose of collective
bargaining. Council 65 argues that a departmental unit of Court Administrator's employees is
supported by the union, favored by the employees involved, and not in conflict with the Public
Employment Labor Relations Act (PELRA) or Bureau decision policy. The County disagrees.
They concluded that all office-clerical-administrative, technical, and professional employees of the
County, that are not currently represented, make-up the dimensions of the unit appropriate for
·collective· bargaining. A "courthouse" wide bargaining unit is consistent with the county-wide
nature of its operations and personnel system, argued the County.

2. Bureau Appropriate Unit Decision Policy. The Bureau has developed a decision
policy ·preference for the establishment of four basic units in County government. 1 Absent
compelling reasons otherwise, units of essential, 2 highway maintenance and public works, social
service ..cJepartment, and county-wide office-clerical-administrative, technical, and professional
employ·ees will generally be detennined as appropriate.

This policy favors the establishment of appropriate units which are based on broad
occupational groups - essential, public works, and office-clerical-administrative, technical, and
professional. The exception to this broad occupational group standard, is our finding that all
employees of a social services department make-up a separate unit. A separate unit of social
service employees is appropriate because of unique relationship with the Minnesota Merit System. 3
This personnel system directly impacts certain "tenns and conditions of employment" of county

.
\~
I\
1
American Federation of State, County and Municipal Employees,
Council 65 and County of Sibley, BMS Case No. 83-PR-48-A and
American Federation of State, County and Municipal Employees,
Council 65 and County of Redwood and Law Enforcement Labor
Services, BMS Case No. 90 - PCE - 2003.
2
Note that under certain conditions licensed and non - licensed
essential employees of a sheriffs department have the right to
vote for separation into an appropriate unit of licensed and non-
licensed employees. -:.
3
American Federation of State, County and Municipal Employees,
Council 65 and County of Stearns, BMS Case No. 85-PR-151-A.

Resp.Add.009
 Certification Unit Determination
BMS Case No. 99-PCE-402
Page 3 ...January 4, 1998

social services employees. Accordingly, such employees have been allocated a separate bargaining
unit from other office-derical-administrative, technical, and professional employees of a county.

This bargaining structure preference of the Bureau accurately applies the unit
detennination criteria of the PELRA. 4 In addition, such a bargaining structure considers the
general "community of interest,, of all County employees and is supportive of effective collective
bargaining for both labor and management.
',.
3. Facts of this Case. The record in this case establishes a distinct "community of
interest" among all employees of the County. Reflective of this "commwuty of interest" are the
following:

* county-wide comprehensive personnel system;

* salary, insurance, and fringe benefit compensation package which is
common to all non-represented employees;

* similar geographic work location;

* transfer and promotion opportunities among departments; and

* centralized administration through a County Coordinator reporting to
the County Board of Commissioners.

Notwithstanding the desires of the Court Administrator's Department employees, the support of
Council 65, and the close working relationship of the employees to the judicial system, we
conclude that a separate departmental unit of Court Administrators employees is not an appropriate
unit for collective bargaining.

4. Conclusion. We conclude that the record in this case supports the County's
position that a county-wide office-clerical-administrative, technical, and professional unit is
appropriate for collective bargaining. Therefore, Cowicil 65 's petition will be dismissed.

4 Minn. Stat . 179A.09, Subd. 1.

Resp.Add .010
 \)

Certif i cation Unit Determination
BMS Case No. 99-PCE-402
Page 4 ... J anuary 4, 1998

FINDINGS AND ORDERS
1. A county-wide unit of office-clerical-administrative, technical, and professional
employees is appropriate for collective bargaining.

2. A departmental unit of Court Administrators' employees is not appropriate for
collective bargaining.

3. The unit determination and certification as exclusive representative petition of
Council 65 is dismissed for lack of a "showing of interest" in the unit determined
appropriate.

4. Tiris Order shall be posted in the work locations of the employees involved.

STATE OF MINNESOTA
Bureau of Mediation Services

LANCE TEACHWORTH
Commissioner

~~~,)~·
Peter E. Obermeyer
Hearing Officer

cc: Steve Preble
Tim Houle (2 copies - including Posting Copy)
Bernie Steffen

--

Resp.Add.011
 BUREAU OF MEDIATION SERVICES
State of Minnesota

IN THE MATI'ER OF A PETITION FOR SEPTEMBER 12, 1989
INVESTIGATION AND DETERMINATION
OF PUBLIC EMPLOYEES' APPROPRIATE
UNIT AND EXCLUSIVE REPRESENTATIVE:

American Federation of State, County and Municipal Employees,
council No. 65, Hibbing, Minnesota
and -
County of Redwood, Redwood Falls, Minnesota
- and - .
Law Enforcement Labor Services, Inc., Bloomington, Minnesota
BMS CASE NO. 90-PCE-2003

CERTIFICATION'tJHIT DETERMINATION
Introduction
on Wednesday, August 9, 1989, a hearing was conducted by the State
of Minnesota, Bureau of Mediation Services (Bureau), pursuant to
a petition filed by the American Federation of State, County and
Municipal Employees, Council No. 65, Hibbing, Minnesota (Council
65). The petition requested determination of an appropriate unit
and certification as exclusive representative for certain employees
of the County.of Redwood, Redwood Falls, Minnesota (County). Law
Enforcement Labor Services, Inc., Bloomington, Minnesota (LELS),
was made a partx to this case.
Parties
At the hearing Mr. Steve Giorgi, Staff Representative, appeared on
behalf of Council 65; Mr. Howard Hoy, Consultant, appeared on
behalf of the County; and Mr. Thomas Skelly, Staff Representative,
appeared on behalf of LELS.
Motions or Agreemen~
At the hearing the parties agreed to the following:
1. The following employees are essential
within the meaning of Minn. Stat. 179A.03,
subd. 7:
Brian Berg, Jailer Dispatcher
Dale Davis, Jailer Dispatcher

(612) 649-5421
1380 Energy Lane• Suite #2 • St. Paul, MN 55108-5253
An Equal Opportunity Employer
. . . . tlO Resp.Add.001
Certification Unit Determination
BMS Case No. 90-PCE-2003
Page 2

2. All Department Heads are excluded from
the appropriate unit.
3. The following employees are supervisory
within the meaning of Minn. Stat: 17_9A.O~,
subd. 17:
Ernest Fiala, Assistant County Engineer
Fred Henkel, Jr., Maintenance superintendent
Edmund Plaetz, Highway Shop Superintendent
Richard Aakre, Social Services Supervisor I
Doris McCorquodale, Financial supervisor I
Lyn Rayburn, Fiscal Supervisor I
4. Patricia Burgemeister, Personnel Assistant,
Personnel Office, is a confidential employee
within the meaning of Minn. stat. 179A.03,
subd. 4.
Issues
1. What is the description of the appropriate
unit?
2. The list of employees falling within the
?ppropriate unit.
3. Are the following employees confidential within
the meaning of Minn. Stat. 179A.03, subd. 4:
Arlene Helwig, Junior Office Manager/
Legal Secretary (Office of the County
Attorney)
Rita Wienke, Account Officer/Board
Secretary (Office of the Auditor/Treasurer)
Paula Olson, Assistant Accountant (Highway
Department)
4. Is Nancy Schmidt, Accountant (Highway Department),
a confidential employee within the meaning of
Minn. Stat. 179A.03, subd. 4; or a supervisory
employee within the meaning of Minn. stat.
179A.03, subd. 17?

Resp.Add.002
Certification Unit Determination
BMS Case No. 90-PCE-2003
Page 3

5. Has Council 65 submitted the required showing
of interest through valid authorization cards
to warrant the conduct of an election?
Discussion
1. Bargaining structure. In establishing the bargaining structure
for county government the Bureau has followed a general policy
favoring four separate appropriate units. J:./ Absent compelling
reasons, units of broad occupational groups composed of essential,
highway maintenance, social service department, and office-
clerical-technical-professional employees are determined
appropriate.
Although not an "occupational group, 11 employees of the social
service department have been given a separate unit because of their
unique relationship with the Minnesota Merit System which covers
certain personnel policies and practices. ~/ Such a bargaining
structure weighs the unit determination criteria of the Public
Employment Labor Relations Act (PELRA), the organizational
structure of county government, and the community of interest of
the employees involved. The record in this case supports a similar
finding that a unit of office-clerical-technical-professional
employees is appropriate.
Council 65 argues, however, that employees of the Public Health
Nursing Service {PHNS) should be excluded from this base unit
because PHNS employees do not share a "community of interest" with
the other employees in the base unit. The Bureau faced this issue
in the Sibley County case 1/ where the Bureau found that a distinct
"community of interest" existed between public hea·lth nursing
personnel and office-clerical-technical-professional employees.

!/ Law Enforcement Labor Services. Inc. and Countv of McLeod,
BMS Case No. 87-PR-418-A; and American Federation of state,
County and Municipal Employees. council No. 65 and County of

~/
Sibley. BMS Case No. 83-PR-48-A.
American Federation of State. County and Municipal Employees,
Council No. 65 and county of Stearns, BMS Case No.
-
85-PR-151-A.
d/ Supra., county of Sibley.

Resp.Add .003
Certification Unit Determination
BMS Case No. 90-PCE-2003
Page 4

A similar "community of interest" exists in this case between the
PHNS and employees in the appropriate unit, which is reflected by
a common system of compensation, a common organizational and
supervisory structure, and a common personnel policy. The request
to exclude PHNS employees is, therefore, inconsistent with the
record and .Bureau case precedents. . . , ...
·2 .confidentil!l. Confidential employee exclusions are based in
the concept that the employer has the need to limit union access
to bargaining information and strategies. A/ Access to such
information and strategies is legitimately reserved by the employer
until such time that proposals and counter-proposals are made to
the union. Employees who assist the employer in the preparation
and management of such information are denied the right to bargain
with other employees of the same employer. Because employees found
to be confidential have limited collective bargaining rights, the
Bureau has "narrowly" defined confidential status 2/ and rejected
administrative convenience as a justification for determining an
employee confidential.~/ The resulting balance of employer and
employee rights provides a workable means to implement the purposes
of the PELRA.
The County contends that four employees meet the confidential test
of the PELRA. Mrs. Arlene Helwig, Junior Office Manager/Legal
Secretary is employed in the off ice of the County Attorney.
Currently Ms. Helwig has no duties or responsibilities which are
confidential in nature. It is suggested by the county that Ms.
Helwig may, in the future, have work tasks involving access to
labor contracts to be reviewed by the County Attorney. such duties
and responsibilities are prospective in nature and as such are not
an acceptable basis for exclusion from the unit. 2/

!/ Minn. Stat. 179A.03, subd. 4.
~/ American Federation of State. County and Municipal Employees,
council No. · 65 and Independent School District No. 761, BMS
Case No. 86-PR-414.
~/ County of Ramsey and American Federation of State, County
and Municipal Employees, Council No. 14, BMS case No.
82-PR-67-A.

2/ Independent School District No. 38 and Minnesota School
Employees Association, BMS Case No. 84-PR- 778-A; and
County of McLeod and American Federation of state, County
and Municipal Employees. Council No. 65, BMS Case No.
84-PR-1076-A.

Resp.Add.004
certification Unit Determination
BMS Case No. 90-PR-2003
Page 5

As the "secretary" to the County Commissioners Ms. Rita Wienke,
Accounting Officer/Board Secretary, attends all meetings of the
county Board of Commissioners. At such meetings she is responsible
for recording the session and transcribing minutes of the meeting
when necessary. . In A~;r rol,e as Board "secretary" Ms. Wienke
regularly attends meetings of the County Board closed to the public
for the purpose of discussing collective bargaining goals,
progress, and strategies. Such access to confidential bargaining
information and strategies is reflective of a confidential
employee.
Nancy Schmidt, Accountant (Highway Department), and Paula Olson,
Assistant Accountant (Highway Department) perform general office-
clerical, financial, and payroll duties and responsibilities for
the County Highway Department. In this capacity Ms. Schmidt
performs certain personnel functions for the county Engineer.
These responsibilities involve the conduct of performance
evaluations, preparation of performance evaluations and letters of
discipline. In addition, Ms. Schmidt has access to departmental
personnel files on a regular and recurring basis. These duties are
reflective of a confidential employee.~/
Although working in the same office as .Ms. Schmidt, Paula Olson's
involvement in the personnel function is limited and sporadic. Ms.
Olson's irregular involvement with personnel matters is not a
sufficient basis to exclude her as confidential. such involvement
is not indicative of operational need, but rather administrative
convenience. Administrative convenience has been rejected as a
valid basis for finding confidential status by both the Bureau and
the Public Employment Relations Board.~/
Findings
1. The motion of agreement is appropriate.
2. The unit shall consist of office-clerical-
technical-professional employees of the
county.

~/ Inasmuch as Ms. Schmidt is excluded as confidential, the issue
as to whether she is supervisory will not be addressed.
2/ County of Ramsey and American Federation of state. County
and Municipal Employees. Council No. 14, BMS Case No.
82-PR-67-A, October 12, 1981.

Resp.Add.005
 certification Unit Determination
BMS Case No. 90-PR-2003
Page 6

3. The clerical and technical employees of the
_,.. Highway Department and the employees of the
Public Health Nursing Service Department are
included within the appropriate unit.

4. The following employees are not confidential
within the meaning of Minn. Stat. 179A.03,
subd. 4:
Arlene Helwig, Junior Office Manager/
Legal Secretary (Office of the county
Attorney)
Paula Olson, Assistant Accountant (Highway
Department)
5. The following employees are confidential
within the meaning of Minn. Stat. 179A.03,
subd. 4:
Rita Wienke, Account Officer/Board
Secretary (Office of the Auditor/Treasurer)
Nancy Schmidt, Accountant (Highway Department)
6. Council 65 has submitted the required showing
of interest through valid authorization cards
to warrant the conduct of an election.
orders
1. The appropriate unit is described as:
All office-clerical-technical-professional
employees of Redwood county, Redwood Falls,
Minnesota. who are public employees within
the meaning of Minn. stat. 179A.03. subd. 14.
excluding maintenance employees of the
Highway Department. employees of the Social
Service Department. supervisory. confidential
and essential employees.
2. A mail-ballot election shall be conducted among
the employees falling within the appropriate
unit in accordance with the attached Mail
Ballot Election Order.

Resp.Add.006
Certification unit Determination
BMS Case No. 90-PCE-2003
Page 7

3. The county shall post this Order at the work
locations of all employees involved.

Notice of Reconsideration and Appeal Procedure

A party may file a request for reconsideration of this Order by the
Commissioner, provided such written request is received within ten
( 10) calendar days and sets forth the basis for such
reconsideration. This Order may also be appealed to the Public
Employment Relations ~oard. Minnesota Rules Parts 5510.2210 and
7300.0700, govern such request and appeals.

STATE OF MINNESOTA
Bureau of Mediation Services
PAUL W. GOLDBERG,
Commissioner

JLK:PEO:JLT:jj

cc: Steve Giorgi
Howard Hoy
Thomas Skelly
County Auditor (2)
(Includes Posting}
,;

------
Resp.Add.007
 • STATE OF MINNESOTA
•
. BUREAU OF ,MEDIA1'10N SERVICES
205 AURORA AVENUE
SAINT PAUL 55103
PHON~ 6 I 2-'296-2.525

IN THE MATTER OF A PETITION FOR
INVESTIGATION AND CERTIFICATION
OF PUBLIC EMPLOYEES' APPROPRIATE
UNIT AND EXCLUSiv'E REPRESENTATIVE:
American Federation of State, County. &Munici'pal Employees, Counci.l No, 65~
Hibbing, Minnesota
-and-
County of Sibley, Gay1ord, Minnesota ·
CASE NO. 83-PR-48-A

UNIT DETERMINATION
Introduction
On Friday, August 27, 1982, a ·bearing was held by the Bureau of Mediation
Services, State of Minnesota, at the Sibley County Courth.ouse, Gaylord,
Minnesota, pursuant to a petition fi led oy the American Pederation of State,
County & Municipal Employees, Council No .. 65, Hiol:dng, Mi"nnesota. Tl'ie
petition requested determination of approprfatri unit and certification as
~xclusive representative for certain employees of the County of Sf5ley,
Gaylord, Minnesota.
At the hearing all interested parties were provided an opportunity to
present testimony and evidence pertinent to the questions raised by tne
filing of the petition.
Parties
Mr. Peter E. Bergstrom, Attorney at Law; appeared on behalf of the County of
Sibley; and Mr. William Moore, .Staff Representative, appeared on 6ehalf of
AFSCME Council No. 65.
Issues
l. What is the appropriate unit?
2. •Are certain employees supervisory?
3. Are certain employees confidential?
4. Has the petitioner submitted the required showing ·of interest
through signed authorization cards to warrant the· conduct of
an election?
5, 'If an election is ordered, how should it be conducted?

AN EQUAL OPPORTUNITY EMPLOYER
Add.38
 • •
Page 2
Case No, 83-PR~48~A
Unit Determination

Positions of the Parties
Mr. Bergstrom took the position that the following employees are supervisory
in accordance with the statutory definition and should .be ~xc1uded from the
appropriate unit: Gary C. Kloempken, Assistant Auditor; Pat Zaska, Assistant
Treasurer; Helen Ingvalson, Assistant ·Assessor; Eldrene Ebert, Assistant ·
Recorder;- Bonnie Paulsen, Office Manager; and Larry Gasow, Zoning Admin·i-
strator , He further contende~ that Bernette Zumhoffe, Accountant, is
confidential in accordance with the statutory definition and should be
~xcluded from the appropriate unit.
Mr, Bergstrom also stated that all employees of the Public Health Nursing
cepartment should be i'ncl uded in the unit .
.Mr. Moore _t9ok th~ position that none of th.e .above.~list~d employees .are
supervisory or confidential and should be included in the appropriate unit
and that all employees of the Public Health Nursing Department should be
excluded.
Stipulations
At .the hearing the parties sttpulated that an on-site election shall be
conducted by the Bureau,
Supervisory Status
A. Applicable Statutes. Minn. Stat. 179.63, subd. 9, defines a
11
supervisory employee" as follows: •
II I Supervisory employee I , when the reference is to other
than essential employees as defined in subdivision ll i means any
person having authority in the interests of the employer to hire ,
transfer, suspendi promote, discharge, assign, reward or disci-
pline other employees or ·respons~bly·to direct them or adjust ·
their grievances on behalf of the employer, or to effectively
recommend any •Of the aforesaid actions, if in connection with the
roregoing the exercise of such authority is not merely routine or
clerical in nature but requires the use of independent judgment.
Any determination of 'supervisory employee' may·be appealed to
the public employment rela~ions board. ,i
In conjunction with the abovei Minn. Stat, 179.71, subd. 3,
subd. 3, .states in part: -- --
"In addition, with regard to the inclusion or exclusion of
sup'ervisory employees, the director must find that an employee
may perform or effectively recommend a majority of those functions
referred to in section 179.63, subdivision 9 or 9a, before an
:employee may'be excluded as supervisory." . (Emphasis added.)
'

Add.39
 -' I

Page 3
Case No. 83-PR-48-A
Unit Determi'n.ati on

B. Discussion. In the State of Minnesota, Department of Employee
Relations v. Minnesota State Em lo ees Union, AFSCME, Council No. 6
BMS Case Nos. 82-PR-558-A t roug 821PR-574-A and 8~-PR-686~A ,
dated June 29, 1982~ ~he Bureau found as follows:
''An employee who has not been given the 'authority' to perform
supervisory functions must then be able to demonstrate an ability
to effectively recommend the supervisory functions. This may be
accomplished by: •
1. Presentation of testimony and evidence which establishes
that the employee's recommendations have been followed
by the employer in the majority of cases; or •

-- ...... ·-- - - . -~.... ..
2.... Lacking a record of experience; verification that the
~ .,..,.._-
emp l oye·e· 1·s.. re'commendati ori .·wo•ufcr i ri "fact be ~foTlowed'
by the employer in the majority of cases,
Verification of the prospective 'effectiveness' of an employee's
recommendation would be confirmed by establishing the following:
.1. · . Affirmation by the individual employee involved of the
ability to effectively recommend the supervisory functions;
and
2. Explanation by the employee of how this authority would be
exercised; and either
3. Substantiation of the employee's authority by a person
within the employer's organization having greater super-
visory authority; or
- 4. Written proof. of the delegation of the authority to the
employee, i ,.e .. , job descripti?n., personnel documents, etc. 11
·confidential Status
i):. i.:
A. A licable Statutes. Minn. Stat ·. 179.63., s·ubq_. 8, defines a
"confi ential employeellas follows ·: ..
/:Confidential employee' means any ernployee who works in the·
11

personnel offices of a public employer or who has access to
information subject to use by .the public employer in meeting and
negotiating or who actively participates in the meeting and
negotiating on behalf of the public employer. 11

Add.40
Page 4
•
c·ase No . .. 83-PR~48~A
Unit Determination

B. Discussion. The contention in this case is that Bernette Zumhoffe,
Accountant', has access to personnel files and has "access · to informa-
tion subject to use by the public employer in meeting and negotiating 11 •
In determining whether an employee meets this ?tandard of the
definition of a confidential employee, the· Bureau will consider the
• fo 11 ow i ng: • •
1. Does the employee .have access to information which is in
the form of an employer's proposal?
2. Does the employee have access to information which. is
confidential to the employer .only?
3. Has the employee parti ci'pated in the preparation of the
"information" to be used exclusively by the 'employer in
· • ·- ,.. .J . . . . .... ~Jo-
dey~_1-~~ii]~ ·eropo~·~1:s -~~d ·_c~~!i!~rP.·~~po·?~_ls'?' ~ -~ ~: - - .. • -
. '
An employee who war.ks with financial and budgetary i nformation does
not meet the definition of a confidential employee based on that
fact alone. In the State of Minnesota, a substantial amount of
employer i nformation is available to the public · as a matter of law.
·Therefore, the Bureau must analyze the statutory de finition of a
confidential einployee particularly when dealing with "having access
to information subject to use by the public employer in ~eeting and
negotiating 11 • The determination of confidentiality must reach
beyond mere access and t nvestigate .the circumstances ~urrounding
th i s access as indicated in the above standards.
Ms. Zumhoffe has access to the personnel fi l es and to information
subject to use by the public employer in meeting and negotiating.
Ap~ropriat~ Unjt
A. Applicable Statute. Minn. Stat. 179.71, · subd. 3, states •in part:
"The director shall determine appropriate units, except where
appropriate units are defined by section 40. In determining the
appropriate unit he shall take into considerati on, along with
other relevant facto"'.S, the principles ,and the .coverage of uniform
comprehensive position classification and compensation plans of the
employees, involvement of professions and sk11'1ed crafts and other
·occupational classifications, relevant administrative and supervisor.y
levels of authority, geographical location, and the recommendation of
the parties, and shall place particular importance upon the history
and extent of organization and the desires of the petitioning
employee representatives. 11
B. Discussion. In determining the bargaining structure of county
,.,......._, -
government'
... .. _ the Bureau
, , . ,... ,- - - , . .......has
--·· followed a policy
..,,,. -. -,---- ....
, ....-..• - of.:..determining
,.,
s.eP.ar.ate
...... .,. _, - ,_.,._ . ·-,:-- . - '
\

\ _,
\l

··~ - , )
t

.._
"'!
._,

•~- ,..... --~---- - -~:..: ...... - , -- ~
•
' . -
"' • I

-
·' - -- ·--~~. :.:__
.,
._

-
·- •. . _._:·~ ._... - -· ~ ,,
I '' I

'\'... ,... . '

Add.41
 Page 5
•
Case No. 83-PR-48-A
Unit Determination

bargaining units ·for certain employee categories. Law
enforcement (or essential ·employees), public works, and
employees subject to the Minnesota Merit System are tradi-
tionally assigned to separate units.
The establishment of a clerical-technical-professional unit or
11
courthouse 11 unit versus departmental units is the center of
•dispute in this case. AFSCME. Council No. 65 argues for the
exclusion of the Public Health Nursing Department from a base
clerical-technical~professional unit of other county employees.
The Bureau finds, that there is .a definite community of interest
between the Public Health Nursing Department and. othe-r county
employees, This community of interest is reflected by common
systems of compensation and job classification, occupational
titles, supervisory structure> and a single personnel ·policy,
~·-- ··· •A'cceptailce o'f the · AFSCME ·councn No. 65 ·argument could resu1t·-
in a bargaining structure of individual departments. Such a
structure, in the Bureau's opinion, .would lead to fragmented
bargaining disadvantageous to the employees, the union, and the
employer. As we found in 'Minnesota School Em lo ees Association
v. Inde endent School Dist. ~o. 690, Warroad BMS Case No.
81-PR-947-A , May 27, 1981, there is a distinct balance between
the narrow community of interest of some employees anq the
excessive fragmentation of the bargaining structure.
Findings
• As Director -of the Bureau of Mediation Services, State of Minnesota, I find:
l. The appropriate unit :is:
All employees of the County of Sibley, Gaylord, Minnesota,
whose employment service . exceeds the lesser of 14 hours per.
week or 35 percent of the normal work week and more than
100 work.days per year, excluding emp1oyees of the Social .
Service Department> highway maintenance employees, essential
employees, and supervisory and confidenti'al _employees.
2. Employees of the Publi.c Health Nursing Department have a
community of interest with other employees within the
appropriate unit and are to be included in the unit.
3. Gary C. Kloempken, Assistant Auditor, is a supervisory
employee withi.n the meaning of Minn. Stat. 1,79.63, subd. 9,
and is to 'be excluded from the unit. -

Add.42
....

•
Page 6
, Case No. 83-PR-48-A
Unit Determination

4. Pat Zaske, Assistant Treasurer; Helen Ingvalson, Assistant
Assessor,;, Eldrene Ebert, Assistant Recorder; Bonnie Paulsen,
Office Manager; and Larry Gas ow, Zoning Administrator, are .
not supervisory employees within the ~eaning of Minn. Stat.
179.63, subd. 9, and are. to be.included 1n the unit. - -
5. Bernette Zumhoffe, Accountant, is a confidential employee
within the meaning of Minn. Stat . 179.63, subd. 8, and is
to be excluded from the unit-.-
• 6. The ·petitioner has submitted the required showing of interest
through signed authorization cards for the employees falling
within the unit determined appropriate to warrant the conduct,
. . '-~I· . .AD _on-si,te ,el~cti,on .S~?Jl . P~ ..g,ondu~t12d...l?Y the Bureau.
Order
• As .Director of the Bureau of Mediation Services, State of Minnesota, I order:
1. An on-site election shall be conducted by the Bureau for the
employees falling within the unit determined appropriate in
accordance with an Election Order to be issued by the Bureau.
2. The employer shall post this order at the work locations of the
employees involved. •
-BUREAU OF MEDIATION- SERVICES ·
STATE OF MINNESOTA

PETER E, OBERMEYER, DIRE
PEO:el
cc:. William Moor~
Gene Sa 1monsen .(2) (-Inc 1udes Posting)
,,
Peter o; Bergstrom_
Albert L. Church ,
Larry Gasow
Dated at St . Paul, Minnesota,
September lo; 1982

Add.43
STATE OF MIN.NESO'llA - B OF MEDIATION SERVICES ST. PAUL, MINNESOTA 55155
IN THE MATTER OF: CASE NO. 81-PR;-947-A
Minnesota School IDnployees Association, St. Paul, Minnesota
- and -
Independent School District No. 690, Warroad, Minnesota

CERTIFICATION OF EXCLUSIVE REPRE,'3ENTATIVE

An election having been conducted in the above-entitled matter by an Agent of th~
Bureau. of Mediation Serv-icea, State of Minnesota, in a.ccordanoe with the Rules and
Regulations of the Bureau, it is indicated from the tabulation of election reaults that
an exclu6ive representative for collective ba.rgaining purposes has been selected.
Eligible Voters (13)
Votes for Minnesota School Employees Association ( 9)
Votes for No Representative ( 2)
Total Votes (11)
Pursuant to authority vested in the Bureau of Mediation Sorvioes, IT IS HEREBY
CERTIFIED '.PHAT 'IRE
MINNESO:rA SCHCOL EMPI.DYEF.S ASSCXJIATIOO, ST. PAUL, MINNESOI'A

has been designated and selected by a majority of the employees of the above~named
employe:r who voted in the unit described below, as theh exclusive representative for
the purposes of collective bargaining, o.nd that, pursuant to the Public Employment labor
~lationa Act of 1971 ~a amendedJ the said organi~ation is the exclusive repreaenta.tive
of all. the employees in such unit for the purposes of collective bargaining with roapect
to rates of payJ wages, hourl3 of employment, and othe-r conditions of employment.

UNIT: All employees of Inde~dent School District No, 690,
Warroad,· ·Minnesota, who are not 'required to be certificated
by the 'State 'Board of Education, whose. emploYIT]ent service
exceeds the lesser of 14 hours per week or 35 p:,rcent of
the 'rionrtal v;tirk week and more than 100 work days per_year,
• excltidirig •employees of the TranSJX)rlatiori 'Dcipartnierit •and
supervisory and confidential anpldYees.

The Cease and Desist Orde:r issued on _ ....Mar.....,...,.a.ch_l....2...,1_1....9_8_1_____ , is he:r-eby
lifted in its entirety.
PID:jj
cc: Ed Dahle
Stuart Blackorby (2)
(.Includes Posting).
Robert A. Hugnes DIRECTOR
Michael Pirscli BUREAU OF MEDIATIONS
STATE OF MINNESCY'l'A
Dated at St. Paul, Minneoota,
FORM BMS- 59 June 29, 1981
Add.44
(Rev.• 1-:-75)
 .STATE OF MINNESOTA A
BillfEAU OF MEDIATION SERVIC~
VETERANS SERVICE BUILDING
SAINT PAUL 55155
PHONE 612-296-2525

IN THE MATTER OF:
INVESTIGATION AND CERTIFICATION OF
PUBLIC EMPLOYEES' APPROPRIATE UNIT:
AND EXCLUSIVE REPRESENTATIVE:
._..,_._.e_ .:~ , ·- • .• . _ ., -- • - -•r :_ . • · - - • - -.~~ -"' , , ••• - __ - ••·~ ·-,.-..--. "T • ,_ • ., ~ -.:,, ••· r ,..:... .._,..,,....., - ,..-

• American Federation of State, County and Municipal Employees
Council No. 65, Hibbing, Minnesota
-and-
Independent School District No. 48q, Onamia, Minnesota
CASE NO. 77-PR-802-A

AMENDMENT OF UNIT DETERMINATION
. .
On June·15, 1977:,_ the Bureau of Mediation Services issued
a Unit Determination finding six apprqpriate units. The Unit
Determination was appealed by _the American Federation of State,
County and Municipal Employees Council No. 65, Hibbing, Minne-
sota, as it pertained _to Units 1~· 2, 3, and 4. _On November IO,
1977, the Public Employment Relations Board issued a decision
finding that Units 1, 2, 3, and 4 should be combined into. one
bargaining unit.
Therefore,.as Director of the Bureau of Mediation Services,
State of Minnesota, I hereby amend the Unit Determination as .
issued and find the following appropriate units: _
UNIT NO. 1: All employees of Independent School District
No. 480; Onamia, Minnesota, who are not required to be _
certificated b the State Board of Education and whose
employment service exceeds the lesser of 1 hours per week
or 35 percent of t:he normal work week and more than 100
work days per year, excluding supervisory and confidential
employees.
UNIT NO. 5: All supervisory employees of Independent
School District No. 480, Onamia, Minnesota, who are not
required to be certificated by the State Board of Educa-
tion, and whose employment service exceeds the lesser of
14 hours per week or 35 percent of the normal work week
and more than 100 work days per year, excluding confi-
'dential and all other employees.
UNIT NO. 6: All confidential employees of Independent .
School District No. 480, Onamia, Minnesota, who are not
required to be certificated by the State Board of

AN EQUAL OPPORTUNITY EMPLOYER
,/
• •
Page 2 .
77-PR-802-A
Amendment of Unit Determination

Education and whose em lo ent service exceeds _the
esser o ours per week or 5 percen of. t e. normal
work week and more than 100 w.o rk .days per year, excluding
~-~:pervisory and all other employees .•
BUREAU OF MEDIATION SERVICES
STA F MINNESOTA
,
~
...~-~
ERNEST H. JONES, DIRECTOR
EHJ:el
~c: Donald F. Sandstrom (2) ·(Includes Posting)
John Giorgi
Albert L. Church
Dd-+ed a+ 54. P~ ... I Mi...,"'e. soi-~
1
. .!I-,, l'177
Dec:e...,,b~,... - - - - - - - - - ---- - -

' ..
., .
 -•
STATE'. OF MINNESOiA
SUREAU OF ME:DIA'ilON SERVICES
205 AURORA AVENUE
SAlN'T PAUL 55103
PHONE 6 l 2-296-2525

IN THE MATTER OF A. PETITION VOR.
INVESTIGATION AND CERTIFICA':l;lON O.F,
PUBLIC EMPLOYEES' APPROPRIATE.UNI~
AND EXCLUSIVE REPRESENTATIVE:
Minnesota School Employees Association, S.t·. )?aul, Minnes·ota·
-and-
Independent School District No. 690 ;. Warroad, Minnes·ota
.'CASE No.···s1~PR_,9'47-A

UNIT DETERMINATION
Introduction
On ~ednesday, April 15, 1981, a hearing was held by the Bureau.
of Mediation Services> State of Minnesota, at the Roseau County
,, Courthouse, Roseau, Minnesota, purs.uant. to a petition filed' by
the Minnesota School Employees Association, St. Paul, Minnesota.
The petition requested determination of an appropriate unit and
the certification as exclusive representative for certain·
employees of Independent School District No. 690, Warroad,
Minnesota.
At the hearing a~l intere~ted parties were provid~d an opportunity
to present testimony and evidence pertinent to the questions
raised by the filing of the.petition.
Issues
1. What is the appfopriate unit or units?
2. Which employees would properly fall within the
appropriate unit?
'
3, Has the petitioner submitted the required showing of
interest td warrant the·conduot of an election?
Positions of.the Parties
Mr. Edward Dahle, on behalf of the MSEA, took the position that
the appropriate unit should consist of cooks, custodians, seore~
tarial/clerical, and teacher aides, as requested in the petition.

AN EQUAL OPPORTUNITY EMPLOYER Add.34
 •
Page 2
Case No. Bl-PR-947-A
Unit Determination

Mr. Robert A. Hughes., on behalf of the School District, took th~
position that the unit as requested by the petitioner is inappro-
priate.and that there should be separate bargaining units for
each occupational group and for bus drivers. He further
contended•that the petition, as filed, does not reflect the
wishes of the employees and that the Bureau should conduct an
informal investigation and/or election among each occupational
group of employees to make a positive determination as to whether
the petition reflects the wishes of the employees. Mr. Hughes_
further stated t°hat Erwin Parker, Head Custodian., and Dorothy
Jesme, Head Cook, are supervisory employees; that Emily Turner,
Office Man_~gi!'~, is both supervisory and confidential; and that
Judith Palm, Assistant to the Office Manager, and Dona Runnels,
General Office Secretary, are confidential employees.
Discussion
In determining appropriate units, the Bureau is directed by the
statutory. crite:ria established by Minn. St. 179. 71, subd. •3.
The application of these criteria,to theemployment relationship
existing in school districts requires the balance between the
community of interest of employees and excess~ve fragmentation
of the bargaining structure. At some point tne Bureau's general
policy of separate units for office, food service, maintenance,
and transportation employees conflicts with unit fragmentation
because of the number of employees involved.
Minn. St. 179,71, subd. 3, emphasizes that in determining appropri-
ate uh.its the Director "shall place particular importance upon the
history and extent ci9 organization and the desires of the petition-
ing employee representatives." The PERB in Independent School
District No, 480 and AFSCME Gouncil No. 65 (Case No. 77-PR-802-A)
reversed the Bureau's finding of four separate units of non-
teaching personnel. It found that:
11 Section 179. 71, subd. 3, makes it clear that the
desires of the petitioning employee representative shall
be given particular importance. ***Pursuant to Minn.
Stat. 179,71, subd, 3, the role of the Board as well as
that of the Director is to determine if the unit petitioned
for is 'an' appropriate bargaining unit. No provision of
the Public Employment Labor Relations Act mandates that
collective bargaining in a proposed unit which is otherwise
appropriate is to be denied simply because another unit may
be conceptually 'most' appropriate,"

Add.35
Page 3
Case No. Bl-PR-947~A
Bnit Determination

Findings
1. Erwin Parker, Head Custodian, and Dorothy Jesme,
Head Cook, are supervisory employees in accordance
with Minn. St. 179'.63, subd. 9, and are to be
excluded from the 'unit.
2. Emily. Turne!l, Office Manager, is a supervisory
employee in accordance with Minn. St. 179,63, subd. 9,
and a confidential employee in accordance with Minn. •
St. 179,63, subd. 8, and is to be excluded from the
unit.
Judith Palm, Assistant to Office Manager, and Dona
Runnels, General Office Secretary, are confidential
employees in a9cordance with Minn. St. 179,63, subd. 8,
and are to be excluded from the uni't.""
' 4. The appr.opriate un:L-t is d~terrnined ·to .be;
All employees of.Independent School District No.
690, Warroad, Minnesota, who are not required to
be certificated by the State Board of Education,
whose employment s~rvice exceeds the lesser of 14
hours per week or 35 percent of the normal work
week and more than 100 work days per year~ exclud-
ing employees of the Transportation Department and
supervisory and confidential employees.
5, The petitioner has submitted the required showing
of interest through·valid authorization cards for
the employees falling within the appropriate unit,
6. It will not be possible for the Bureau to conduct
an on-site election before the close of the 1980-81
school year; therefore> a mail ballot election will
be conducted.
Order
As Director of th~ Bur~au of Mediation Services~ State o~_Minnes6ti,
I order : •,._ :·.
1. A mail ballot election shall be conducted in accordance
with an election order to be is~ued by the Bureau.

Add.36
,.
•
Page 4
Case No. 81-PR-947-A
Unit Determination

2, Th& employer shall immediately furnish to the Bureau
and to the petitioner a list of the employees falling
within the unit herein determined appropriate, along
with their home mailing addresses.
3- The employer shall post this order at all work
locations of the employees involved.
B_UREAU OF MEDIATION SERVICES
STATE OF MINNESOTA

PETER E. OBERMEYER,
PEO:el
cc: Stuart Blackerby (2) (Includes Posting)
Robert A, Hughes
Michael Pirsch
Edward Dahle
Dated at St. Paul, Minnesota,
May 27, 1981

Add.37
 ·• ·-

BUREAU OF MEDIATIONSERVJas • •
IN THE MATTER OF: State of Minnesota OCTOBER 16, 1990

Minnesota Teamsters Pubiic. and Law Enforcement Employees Union,
Local No. 320, Minneapolis, Minnesota
.,. and -
- County of Anoka, Anoka, Minnesota
. .
BMS CASE NO. 90-PCE-3223

CERTIFICATION OF RESULTS OF ELECTION

The tabulated results of a certification election conducted in the
above-captioned matter • by '. ary agent of the Bureau of Mediation
Services reveal the following results:
ELIGIBLE EMPLOYEES (557)
VOTES FOR . TEAMSTERS UN~ON, LOCAL NO. 320 . (141)
VOTES FOR NO REPRESENTATION (336)

TOTAL VOTES COUNTED (477)
Accordingly, IT IS CERTIFIED THAT THE MINNESOTA TEAMSTERS PUBLIC
AND ··,·LAW ENFORCEMENT EMPLOYEES UNION, LOCAL NO. 32 0 1 MINNEAPOLIS,
MINNESOTA, . is NOT the exclusive representative of the following
appr-'opriate ·unit: . •

'All clerical and technical employees-of the
County of Anoka. Anoka. Minnesota·. who are _
public .employees within the meaning of Minn.
Stat. 179A.03. subd. 14. excluding supervisory.
confidential. and "non-permanent" employees .
The Maintenance of Status Quo Order issued by the Bureau on April
6, 1990, is lifted in its entirety.

·services

.
Commissione
jj,
cc: Robert Weisenburger
;Jay McLinden
Ron Welde (2)
(Includes Posting)
Bernard Steffen

(612) 649-5421 FAX: (612) 643-3013
1380 Energy Lane •. Suite #2 • St. Paul, MN 5510S.:.5253
An Equal Opportunity Employer
Printed By A Sta te Facility
 BUREAU OF
MEDIATION SERVICES

IN THE ,MATTER·OFA PETITI
FdR"DETERMIN ION 0
APPROPRIATE IT AN
CERTIFICATION OF E
REPRESENTATIVE

February 24, 2021

Law Enforcement Labor Services, Brooklyn Center, Minnesota
- and -
Anoka County, Anoka, Minnesota

BMS Case No. 21PCE0336

CERTIFICATION UNIT DETERMINATION ORDER
INTRODUCTION

On September 9, 2020, the State of Minnesota, Bureau of Mediation Services (Bureau),
received a petition from the Law Enforcement Labor Services, Brooklyn Center, Minnesota
(Union). The petition requested determination of the appropriate and certification as
exclusive representative for a group of employees of the Anoka County, Midwest Medical
Examiner's Office, Anoka, Minnesota (Employer of County). On Thursday December 31,
2020, a pre-hearing was conducted to discuss the possibility of conducting the hearing via
video conference and the logistics for conducting such a hearing. A hearing was
subsequently conducted on Thursday, January 14, 2021, via a WebEx platform, with some
witnesses presenting in the hearing room before the hearing officer in the offices of the
Bureau. The parties timely submitted post-hearing briefs by Wednesday February 3, 2021,
and the record was closed.

APPEARANCES

At the hearing Scott Lepak, Attorney for the County, represented the Employer and
Attorneys Kim Sobieck and Mark Schneider, represented the Union.

1380 Energy Lane, Suite 2, Minneapolis, Minnesota 55108-5253
651-649-5421 I FAX: 65 1-643 -30 13 I TTD: 1-800- 627-3529 I mn,gov/brns
An Equal Opportunity Employer
 r -

Unit Clarification Order
BMS Case No. 21 PCE0336
Page 2 ... February 24, 2021

ISSUE

What is the appropriate bargaining unit to be determined?

BACKGROUND

In its petition, the Union seeks to create a unit described as:

"All Full-Time employees of the Midwest Medical Examiner's Office,
Ramsey, Minnesota in the position of investigator, who are public
employees within the meaning of Minn. Stat. 179A.03, Subd. 14,
excluding supervisory and confidential employees."

The Midwest Medical Examiner's Office (MMEO) is an Agency within County
Administration Department of Anoka County. During the Pre-Hearing Conference, the
Union clarified their petition is to determine a unit consisting of full time "Office
Investigators".

POSITIONS OF THE PARTIES

The County maintains the full time Office Investigator is a fragment of the positions within
the Medical Examiner's Office sharing a community of interest. In addition to the Office
Investigator, the Forensic Technicians, Field Investigator, and Medical Secretaries are
included within the same community of interest.

The Union argues the positions in question is a unique a community of interest, have
submitted an interest in being represented by the Union and should be included in the
appropriate unit rather than creating an Office wide unit of disinterested individuals ..

DISCUSSION

APPLICABLE STANDARDS
Minn. Stat. §179A.09, addressing unit determination criteria provides in relevant part:

Criteria. "In determining the appropriate unit, the commissioner 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
Unit Clarification Order
BMS Case No.
21 PCE0336 Page
3... February 24, 2021

extent of organization, and the desires of the petitioning employee
representatives."

COMMUNITY OF INTEREST

Reviewing the criteria outlined in Minn. Stat.§ 179A.09, subd. 1:

a) Principles and the coverage of uniform comprehensive position classification and
compensation plans of the employees: There is no dispute the Office Investigators
are within the County classification and compensation system. Forensic Technicians
and Medical Secretaries are also within the system, while the Field Investigators are
compensated according to their own salary schedule. Additionally, the three
positions are grouped similarly within the classification compensation system with
the Forensic Technicians at grade 11, the Office Investigators at grade 10 and the
Medical Secretaries at grade 8. (Ex 1, #5) Field Investigator compensation is
comprised of an "on-call" payment for the time in which the Investigator is standing
by, and they a "per scene" payment of$ 100 per incident. (Ex 17) For incidents
extending beyond what is normally expected there may also be a$ 20 per hour
supplement when approved. While the Forensic Technicians and Medical
Secretaries participate in the same compensation and classification as the Office
Investigators, the Field Investigators do not.

b) Professions and skilled crafts. and other occupational classifications: In reviewing
the position description for the Office Investigator (Ex 8), it is determined not to be
that of a profession or skilled craft. Not to deride the significance of the position but
instead following the definitions within PELRA, it simply does not rise to the
definition of profession or skilled craft. The same is true for the positions of
Forensic Technician, and Medical Secretary, although their duties differ from that of
the Investigators. The position of Field Investigator would be considered to be a
profession or skilled craft had the degree in physical/social sciences or criminal
justice been a requirement instead of a preference.

c) Relevant administrative and supervisory levels of authority: Exhibit 11 delineates
the organizational structure of the County Medical Examiner's Office. For each
position within the Medical Examiner's Office there is a Supervisor identified. Each
Supervisor reports to either the Medical Examiner, who reports to the Director of
the Midwest Medical Examiner's Office or to the Director himself. Medical
Secretaries report directly tot eh Director of the MMEO who reports directly to the
County Administrator. The Office Investigators and Field Investigators report to the
Investigation Supervisor, who reports to the Medical Examiner, who then reports to
the Director. Forensic Technicians report to the Morgue Supervisor who reports to
the Medical Examiner. The dissimilarity of supervisory levels does not create a
community of interest.
Unit Clarification Order
BMS Case No.
21 PCE0336 Page
4 ... February 24, 2021

d) Geographical location: Exhibit 1, stipulation number 9 establishes the Forensic
Technician, Office Investigator and Medical Secretary positions are all located at the
MMEO facility in Ramsey Minnesota. Field Investigators work from their home
offices located throughout the Counties served by the Medical Examiner. (T. Sheets)
The geographic service area for the MMEO however is far greater than at the
Ramsey Office and encompasses several Minnesota Counties. In addition to the
positions already listed as being housed at the Ramsey facility, the Forensic
Pathologists also work at this site. Under agreement between the parties as
identified in Exhibit 1, the Forensic Pathologists are to be excluded from an
appropriate unit. (Ex 1, Stip 2) In the instant case, although the varying work
locations for the MMEO are throughout several counties, the Office Investigators
sought by the Union are all located in the Ramsey office and do not perform any
"field" work.

e) History: MMEO employees are currently unrepresented. At least two previous
attempts have occurred to seek representation for technical and clerical employees
of Anoka County which have failed to establish a unit and bargaining relationships.
(90PCE3223, 09PCE0284) There is currently no history with the proposed unit.

f) Extent of organization: This means the groupings of employees among whom the
union has support and upon which it has focused its organizing efforts. State of
Minnesota, State Board of Public Defense, and Teamsters Local 320, BMS Case No.
98PCE0490 (March 3, 1999). In the instant case the Union has support from the
Office Investigators of the MMEO. This factor supports the Union's position there is
a community of interest.

g) The recommendation of the parties: The Union's recommendation is to create an
appropriate unit consisting of full time Office Investigators. The Employer's
recommendation is to certify an appropriate unit consisting MMEO employees
except the Forensic Pathologists which the parties have agreed to exclude. These
positions offset each other and provide no guidance in this case.

h) Other relevant factors: The Employer raises the issue of over fragmentation, a
consideration not identified in §179A.09 however a consideration the Bureau has
used for decades. Determining the appropriate unit requires the balance between
the community of interest of employees and excessive fragmentation of the
bargaining structure. The Bureau has developed a decision policy preference for the
establishment of four basic units in County government. Absent compelling reason
otherwise, 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.

This policy favors the establishment of appropriate units which are based on broad
occupational groups -essential, public works, and office-clerical-administrative,
technical, and professional. The exception to this broad occupational group
t ; -

Unit Clarification Order
BMS Case No.
21 PCE0336 Page
5... February 24, 2021

standard, is our finding that all employees of a social services department make-up
a separate unit. (99PCE0402) This bargaining structure preference of the Bureau
accurately applies the unit determination criteria of the PELRA. Here however, we
find the Employer has entered into stipulations whereby additional units of
essential employees were formed, negating a consideration for over fragmentation.

CONCLUSION

As with the exception to Bureau policy for social services, MMOE employees share a
uniqueness not found in a more general clerical/technical unit description. The Employer's
objection to the Union's description is not to follow the broad Countywide policies of the
Bureau but instead shoehorn the policy into fitting within the MMOE. The uniqueness of
the position, the work performed, the separate location from other County employees and
the desires of the petitioning union favors a determination a broad clerical/technical unit
should not be created.

We also find persuasive the fact that an appropriate unit consisting of the entire
clerical/technical employee class was certified and the parties never reached a collective
bargaining unit. We take this as strong evidence that a broad bargaining unit would not
lead to stable and constructive labor relations.

Additionally, the Unions desire to include only a portion of a job class is not appropriate.
The position of Office Investigator does not change for a public employee serving less than
full time. The record is void of any reference to differing job duties, compensation
structure, levels of authority and responsibility, geographic location, or other consideration
to suggest differentiation.

Having established multiple essential units with the County diminishes the argument
against fragmentation. The particular importance on desires of the petitioning employee
representative, and history and extent of organization strongly favor the determination of
an appropriate unit of Office Investigators. The principles and the coverage of uniform
comprehensive position classification and compensation plans of the employees,
professions and skilled crafts, relevant administrative and supervisory levels of authority,
and geographical location all favor and disfavor the Employer's arguments given some
employees share interest while others do not.

The petitioner's position is upheld with the exception of excluding all but full-time
employees. A unit of all Office Investigators is appropriate. Excluded from the unit are
Field Investigator, Forensic Technician and Medical Secretary. The parties had previously
stipulated to the exclusion of the Forensic Pathologist.
 .... . ..
Unit Clarification Order
BMS Case No.
21 PCE0336 Page
6... February 24, 2021

FINDING AND ORDERS
1. The appropriate unit is described as:

All Office Investigators employed by the Anoka County Midwest
Medical Examinator's Office. Anoka. Minnesota, who are public
employees within the meaning of Minn. Stat. 179A.03, subd. 14,
excluding supervisory. confidential. and all other employees.

2. The Bureau shall conduct a mail ballot election among the eligible employees in
accordance with the attached Mail Ballot Election Order.

3. The Employer shall post this Order at the work locations of the employees involved.

STATE OF MINNESOTA
Bureau of Mediation Services

JANET L. JOHNSON
Commissioner

Michael Stockstead
Hearing Officer

cc: Scott Lepak
Kim Sobieck
Mark Schneider

POSTING

THE EMPLOYER SHALL MAKE COPIES OF THIS ORDER UPON RECEIPT AND
POST IT AT THE WORK LOCATION($) OF ALL INVOLVED EMPLOYEES.