Minnesota Nurses Association v. McLeod County, Relator, Public Employment Relations Board, ...

STATE OF MINNESOTA
IN COURT OF APPEALS
A25-0569

Minnesota Nurses Association,
Respondent,

vs.

McLeod County,
Relator,

Public Employment Relations Board,
Respondent.

Filed February 9, 2026
Affirmed
Bratvold, Judge

Public Employment Relations Board
File No. 24-U-036

Timothy J. Louris, Emily L. Marshall, Jacob C. Harksen, Louris Marshall O’Brien, P.A.,
Minneapolis, Minnesota (for respondent Minnesota Nurses Association)

Ann R. Goering, Timothy A. Sullivan, Ratwik, Roszak & Maloney, P.A., St. Paul,
Minnesota (for relator McLeod County)

Keith Ellison, Attorney General, Jennifer C. Moreau, Assistant Attorney General, St. Paul,
Minnesota (for respondent Public Employment Relations Board)

Considered and decided by Schmidt, Presiding Judge; Bratvold, Judge; and Bentley,

Judge.

SYLLABUS

1. A public employer’s unilateral change of a term and condition of

employment occurring during the unexpired term of a collective bargaining agreement may
be an unfair labor practice under section 179A.13, subdivisions 1 and 2(1), (5), of the

Public Employment Labor Relations Act (PELRA), Minn. Stat. §§ 179A.01-.25 (2024).

2. Counties, along with their agents and representatives, are prohibited from

engaging in unfair labor practices as provided in Minnesota Statutes section 179A.13,

subdivisions 1 and 2.

OPINION

BRATVOLD, Judge

In this certiorari appeal, relator McLeod County (the county) challenges a decision

by respondent Public Employment Relations Board (PERB) that the county committed

unfair labor practices in violation of the Public Employment Labor Relations Act

(PELRA). PERB determined that the county unilaterally implemented and later unilaterally

rescinded a wage increase for employees represented by respondent Minnesota Nurses

Association (the union). PERB also determined that the county refused to negotiate with

the union about either the wage increase or its rescission.

On appeal, the county argues that reversal is warranted because PERB’s decision

was based on legal errors and PERB imposed remedies that were not authorized by PELRA

and arbitrary. Alternatively, the county contends that reversal is required because PERB

engaged in ex parte communications with the union.

We conclude that the county fails to show that PERB’s decision rested on an error

of law or that the remedies were unauthorized by statute or otherwise arbitrary. PERB’s

determination that the county engaged in unfair labor practices finds ample support in its

factual findings and the applicable law, as do the remedies for the violations. The ex parte

2
communications between PERB and the union do not warrant reversal of PERB’s decision.

Thus, we affirm.

FACTS

These facts summarize the record and PERB’s findings and are not disputed by the

county. 1

The union is the exclusive representative of public-health nurses, health educators,

registered nurses, and public-health social workers whom the county employs, and the

union is certified under PELRA to “meet and negotiate with the employer on behalf of all

employees in the appropriate unit.” Minn. Stat. § 179A.03, subd. 8. The county is a public

employer under PELRA. Id., subd. 15(a)(6). The union and the county entered into a

collective bargaining agreement (CBA), effective January 1, 2023, through December 31,

2025. The CBA provides for a 3.0% general wage increase effective the first pay period in

January of each year. The CBA also provides that either party may give “[w]ritten notice

of desire to change or modify” the agreement and that the agreement reopens annually

regarding health-insurance contributions.

On January 3, 2024, the county administrator wrote to all union employees,

informing them that “[a]n additional [wage] increase beyond 3% is being awarded to

1
Although the headings in the county’s brief to this court refer to factual errors in PERB’s
decision and the county’s brief refers to the substantial-evidence standard of review for
factual findings, the county does not argue that PERB’s factual findings were unsupported
by substantial evidence. Indeed, when we compare the county’s statement of facts to
PERB’s factual findings, we conclude that the material facts are undisputed. We
understand the county to make arguments that hinge on legal error and not
substantial-evidence review.

3
McLeod County employees in 2024.” The January 3 letter also explained that the additional

wage increase was based on a matrix created by the county in 2023. PERB found that the

matrix “provided additional wage increases of between [0.5% and 3%] depending upon

how the employee’s 2023 wage compared to the mid-point of the pay scale.” PERB also

found that the union had “no input” in preparing the matrix.

The next day, the county emailed the union with a copy of its January 3 letter. PERB

found that this was “the first time” the county informed the union that “it had decided to

provide an additional wage increase.”

The union responded on January 9, stating that it “demands to negotiate over this

unilateral change to the terms and conditions of employment.” The union also requested

information relevant to the county’s decision. The county implemented the wage increase

on January 10.

On January 17, the county replied to the union, stating that it was surprised by the

union’s response, would reverse the wage increase, and saw “no need” to meet to negotiate:

During the term of the previous contract the County
Board . . . implemented a mid-contract wage increase without
objection from the Union. The County did not anticipate an
objection from the Union in light of our past experience.

The County will immediately stop the increase,
effective with the current pay period, thereby reversing the
change to the terms and conditions of employment. Therefore,
there is no need to meet to negotiate over any unilateral
change . . . .

The County is willing to enter into [a memorandum of
agreement (MOA)] with the [union] on the same terms as it has
with the other bargaining units. A copy of the MOA is

4
 enclosed. As the CBA does not contain a wage reopener, the
County will not meet to negotiate wages for 2024.

That same day, the union responded to the county that it “did not state it objected to

the wage increases,” adding that the union “has the right to meet and negotiate as well as

request information necessary to understand the employer’s proposals in relation to terms

and conditions of employment.” The union warned that “[a]ny roll back or canceling of the

wage increases implemented will result in an immediate unfair labor practice charge.”

On January 24, the county informed the union that rescission of the wage increase

“was intended as a resolution necessary in response to your concern” and that the “reason

the wage increases . . . had to be pulled back and amended is due to your threat” of an

unfair labor practice charge. The county also stated that its offer of an MOA “stands”

through February 5 and that “[w]e are not agreeing to meet and negotiate . . . . We are not

authorized to meet and reopen wage negotiations for the current contract.”

The union filed an unfair labor practice charge with PERB, alleging violations of

Minn. Stat. § 179A.13, subd. 2(5), which prohibits public employers from “refusing to

meet and negotiate in good faith with the exclusive representative of its employees in an

appropriate unit.”

On February 21, the county “formally rescinded” the wage increase.

The union amended its unfair labor practice charge, adding a violation of Minn. Stat.

§ 179A.13, subd. 2(1), which prohibits public employers from “interfering, restraining, or

coercing employees in the exercise of the rights guaranteed” by PELRA. After considering

5
the charge, the amended charge, and the county’s response along with other materials the

parties submitted, PERB served a complaint and notice of hearing.

Following an evidentiary hearing, the hearing officer submitted a recommended

order that included the parties’ stipulations and proposed findings of fact along with legal

analysis and proposed conclusions of law. The hearing officer determined that the county

violated PELRA by committing unfair labor practices in four respects: (1) the county

“implemented a unilateral wage increase paid to” union employees, (2) the county refused

to meet and negotiate with the union over the unilateral wage increase, (3) the county

refused to meet and negotiate with the union over the rescission of the unilateral wage

increase, and finally, (4) the county unilaterally rescinded the wage increase. The hearing

officer recommended remedies.

The county submitted exceptions to the recommended order, and the union

responded. PERB considered the record, the hearing officer’s recommended order, and the

parties’ written submissions.

PERB filed its written decision and order and found that the hearing officer’s order

“fully explains his factual findings and conclusions of law and details his reasons for

rejecting” the county’s arguments. PERB adopted the hearing officer’s recommended

order, including its findings of fact, conclusions of law, and recommended remedies. PERB

discussed the county’s exceptions, first rejecting its claim that the charges were unfounded

because the county board took no action on the wage increase or rescission. PERB reasoned

that PELRA “explicitly makes employers liable for the actions of its agents, such as the . . .

county administrator.” Second, PERB determined that the county committed two unilateral

6
changes in the terms of employment without bargaining with the union—the unilateral

wage increase in January 2024 and the unilateral rescission of that wage increase in

February 2024. Finally, PERB concluded that the county had a legal duty to bargain over

both the wage increase and the rescission of the wage increase “regardless of their

occurrence during the term of the” CBA. PERB ordered the county to take remedial action,

including reinstating the January 10 wage increase, paying union employees wages lost as

a result of the rescission of the wage increase, and ceasing and desisting from its refusal to

bargain over the terms and conditions of employment.

The county petitioned for certiorari review of PERB’s decision and order.

ISSUES

I. Did PERB’s determination that the county committed unfair labor practices in
violation of PELRA reflect an error of law?

II. Were the remedial actions ordered by PERB without authority under PELRA or
otherwise arbitrary?

III. Did PERB engage in improper ex parte communications with the union before it
released its decision, and if so, is reversal required?

ANALYSIS

PELRA “governs labor relations between public employees and their employers.”

Allen v. Hennepin County, 680 N.W.2d 560, 563 (Minn. App. 2004), rev. denied (Minn.

Aug. 17, 2004). PELRA’s express public policy is “to promote orderly and constructive

relationships between all public employers and their employees,” which is “subject to the

paramount right” of Minnesota citizens “to keep inviolate the guarantees for their health,

education, safety, and welfare.” Minn. Stat. § 179A.01(a). PELRA recognizes that

7
“[u]nresolved disputes between the public employer and its employees are injurious to the

public as well as to the parties” and that the legislature “has determined that overall policy

is best accomplished by,” among other things, “requiring public employers to meet and

negotiate with public employees in an appropriate bargaining unit” and “establishing

special rights, responsibilities, procedures, and limitations regarding the public

employment relationships.” Minn. Stat. § 179A.01(c)(2)-(3).

PELRA prohibits unfair labor practices and authorizes any employer, employee, or

employee organization “aggrieved by an unfair labor practice” to file a charge with PERB.

Minn. Stat. § 179A.13, subd. 1(a). Section 179A.13, subdivision 2, outlines 14 unfair labor

practices by employers. When an unfair labor practice charge is submitted to PERB, an

investigation follows, and unless “the charge has no reasonable basis in law or fact,” PERB

“shall promptly issue” and serve a complaint as well as provide for a hearing before a

hearing officer. Id., subd. 1(b). The hearing officer issues a recommended decision and

order. Id., subd. 1(d). Parties may file exceptions to the hearing officer’s recommended

decision and order. Id., subd. 1(k). PERB then reviews the recommended decision and

order along with the exceptions and “may adopt all, part, or none of the recommended

decision and order.” Id. Certiorari review by this court is available. Minn. Stat.

§ 179A.052. 2

2
Before the legislature amended PELRA to create PERB, district courts had jurisdiction
over unfair labor practice charges. See Minn. Stat. § 179A.13, subd. 1 (2012); 2014 Minn.
Laws ch. 211, §§ 5, 7, at 501-02 (creating PERB and establishing review of PERB
decisions by the court of appeals).

8
 “[D]ecisions 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, education, and experience.” Anoka County v. Law

Enf’t Lab. Servs., Inc., 3 N.W.3d 586, 591 (Minn. 2024) (quotation omitted). “Review by

certiorari is limited to an inspection of the record” and “is necessarily confined to questions

affecting the jurisdiction of the board . . . and, as to [the] merits of the controversy, whether

the order or determination . . . was arbitrary, oppressive, unreasonable, fraudulent, under

an erroneous theory of law, or without any evidence to support it.” Dietz v. Dodge County,

487 N.W.2d 237, 239 (Minn. 1992) (quotation omitted).

“Although we generally defer to an agency’s expertise and knowledge in terms of

the agency’s technical training and experience, appellate courts are not bound by an

agency’s interpretation of PELRA.” Serv. Emps. Int’l Union, Local 284, S. St. Paul, Minn.

v. Univ. of Minn. Unit 8, Minneapolis, Minn., 902 N.W.2d 54, 57 (Minn. App. 2017)

(citation omitted). Similarly, “[i]nterpretation of case law is a legal question that [appellate

courts] review de novo,” Law Enf’t Lab. Servs., Inc., 3 N.W.3d at 593-94, and “[t]his court

reviews questions of statutory construction de novo.” Indep. Sch. Dist. No. 281 v. Minn.

Dep’t of Educ., 743 N.W.2d 315, 324 (Minn. App. 2008).

I. PERB’s determination that the county committed unfair labor practices does
not reflect an error of law.

On appeal, the county contends that PERB legally erred in determining that the

county committed unfair labor practices. PERB determined that the county twice

committed unfair labor practices when it “interfered with employees in the exercise of

9
rights guaranteed” by PELRA—first, by implementing “a unilateral wage increase” and,

second, by later unilaterally rescinding that wage increase. PERB concluded that the

unilateral changes to wages “circumvented the employees’ right to bargain.” PERB also

determined that the county twice committed unfair labor practices “by refusing to meet and

negotiate” with the union “in good faith” over the unilateral wage increase and the

“rescission of the unilateral wage increase.”

We conclude that PERB did not legally err in determining that the county committed

unfair labor practices by unilaterally implementing and later rescinding the January 10

wage increase and by refusing to bargain about the increase and rescission.

We begin by considering the rights and obligations of public employers and

employees under PELRA, then examine caselaw applying those provisions to unilateral

actions by a public employer. We next apply the relevant statutes and caselaw to PERB’s

factual findings. Finally, we consider the county’s arguments for reversal of PERB’s unfair

labor practice determinations.

PELRA grants public employees the right to meet and negotiate with their employer

regarding the terms and conditions of employment. Minn. Stat. § 179A.06, subd. 5. Public

employers have a corresponding obligation to meet and negotiate with public employees

regarding the terms and conditions of employment. Minn. Stat. § 179A.07, subd. 2(a). The

terms and conditions of employment include compensation and benefits. Minn. Stat.

§ 179A.03, subd. 19. It is an unfair labor practice for “[p]ublic employers, their agents and

representatives” to interfere with employees’ rights guaranteed under PELRA or to refuse

“to meet and negotiate in good faith.” Minn. Stat. § 179A.13, subd. 2(1), (5).

10
 Caselaw on unilateral changes by public employers guides our analysis. In Foley

Education Association v. Independent School District No. 51, the Minnesota Supreme

Court affirmed the conclusion that a school district had committed an unfair labor practice

when it unilaterally assigned persons who were not licensed as teachers to supervise study

hall and those duties traditionally had been assigned to teachers. 353 N.W.2d 917, 924

(Minn. 1984). The supreme court reasoned, first, that “unilateral changes by an employer

in terms and conditions of employment are prima facie violations of its employees’

collective bargaining rights.” Id. at 920-21 (citing NLRB v. Katz, 369 U.S. 736 (1962)).

This is because, “even in the absence of subjective bad faith, an employer’s unilateral

change of a term and condition of employment circumvents the statutory obligation to

bargain collectively with the chosen representative of his employees in much the same

manner as a flat refusal to bargain.” Id. at 921.

The supreme court added, however, that such a unilateral change “is not per se an

unfair labor practice.” Id. Courts may determine that a public employer’s unilateral change

was not a violation in specific circumstances, one of which is if “there was not a bad faith

refusal to bargain.” Id. 3 In analyzing whether there was “not a bad-faith refusal to bargain,”

courts consider whether the union was “in fact given an opportunity to bargain on the

3
The supreme court in Foley identified two other circumstances in which a unilateral
change by the employer is not an unfair labor practice—if “the subject” of the change “is
not a ‘mandatory’ bargaining term” or if the “‘change’ is consistent with the past practices
of the parties.” Id. The county does not dispute that wages are a mandatory bargaining
term. We reject the county’s claim that the unilateral wage increase was consistent with
“past practices of the parties” in our analysis of the county’s arguments about a legal
principle known as contract-modification theory, which we define and discuss below. See
infra Part I.D.

11
subject,” whether the CBA “authorized the change,” or whether “the union waived its right

to bargain.” Foley, 353 N.W.2d at 921.

Under Foley, the county’s unilateral implementation and rescission of the

January 10 wage increase violated the employees’ collective bargaining rights. The county

unilaterally implemented and rescinded the January 10 wage increase—a term and

condition of employment subject to mandatory bargaining. See Minn. Stat. § 179A.03,

subd. 19 (defining terms and conditions of employment to include wages). The county also

rejected the union’s request to negotiate over the January 10 wage increase and continued

to refuse to negotiate while rescinding the wage increase. See Minn. Stat. § 179A.06,

subd. 5 (granting employees the right to meet and negotiate over terms and conditions of

employment).

None of the circumstances excusing a unilateral change exist. The county did not

allow the union to bargain, the CBA did not authorize the implementation or rescission of

the wage increase, and the union did not waive its right to bargain. Indeed, the county made

a “flat refusal to bargain” while unilaterally implementing and later rescinding a wage

increase, and thus the county circumvented the union’s right to bargain. See Foley,

353 N.W.2d at 921. PERB therefore did not err in determining that the county committed

unfair labor practices under PELRA.

The county nevertheless urges us to reverse PERB’s determination for four reasons,

which we consider in turn.

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 A. PELRA prohibits unfair labor practices by the county and its agents and
representatives.

The county argues that the January 10 wage increase was not an unfair labor practice

because “the County Board did not act on the 2024 off-cycle wage increase, and the County

Administrator and other County employees lacked statutory authority to bind the County

on this matter.” PERB responds that it is not material whether the county board acted on

the January 10 wage increase because “the issue is whether the Employer, ‘their agents and

representatives’ committed an unfair labor practice under [PELRA] section 179A.13,

subd. 2.” 4

The county makes this argument specifically with respect to the January 10

unilateral wage increase. In doing so, the county cites Minn. Stat. §§ 373.01-.02 (2024) to

argue that it did not violate PELRA because the power to contract with employees “rests

solely with the elected County board.” We understand the county to urge that the county

administrator’s January 3 letter and subsequent rescission of the wage increase were not

authorized by the county board. 5

To support its position that the county committed an unfair labor practice, PERB

points to PELRA’s provision prohibiting “[p]ublic employers, their agents and

representatives” from committing unfair labor practices. Minn. Stat. § 179A.13, subd. 2.

4
The union offers arguments similar to those in PERB’s brief. As a result, we consider the
union’s contentions through our analysis of PERB’s arguments.
5
Because we conclude that unilateral implementation and rescission of a wage increase by
the county’s agents and representatives violates PELRA’s prohibition on unfair labor
practices, we need not discuss the county’s argument that PERB erred in finding that “the
county” acted on the wage changes absent formal approval by the county board.

13
The county does not interpret this provision of PELRA, however, and instead relies on a

statute in an entirely different chapter. Section 373.01 sets out a county’s powers, including

the authority to make contracts; the county also urges us to consider section 373.02, which

provides that the county’s powers “shall only be exercised by the county board.” In short,

the county contends that PELRA’s provisions on unfair labor practices “must be interpreted

consistently with those laws governing the powers of municipalities and their agents.”

The parties’ dispute on this issue asks us to interpret section 179A.13, subdivision 2.

“The goal of statutory interpretation is to effectuate the intent of the legislature.” In re

Murack, 957 N.W.2d 124, 128 (Minn. App. 2021). “The plain language of the statute is

our best guide to the Legislature’s intent.” Energy Pol’y Advocs. v. Ellison, 980 N.W.2d

146, 158 (Minn. 2022). No party contends that the relevant PELRA provision is

ambiguous, and we determine that it is unambiguous. We therefore conclude the legislature

has expressly provided that public employers, along with “their agents and

representatives,” are prohibited from committing unfair labor practices. Minn. Stat.

§ 179A.13, subd. 2. The relevant language in section 179.13, subdivision 2, provides no

exceptions or additional requirements.

We reject the county’s suggestion that we incorporate sections 373.01 and 373.02

for two reasons. First, the county’s interpretation of PELRA would essentially insert an

additional requirement for unfair labor practice claims against the county—providing that

“public employers, their agents and representatives are prohibited” from committing unfair

labor practices through an act of the county board. Courts do not add language to a statute.

14
See Energy Pol’y Advocs., 980 N.W.2d at 156, 158 (rejecting an interpretation of

unambiguous statutory language because it added language to the statute).

Second, the county’s interpretation of PELRA would render insignificant or

meaningless its provisions as to agents and representatives, leaving the county’s agents and

representatives free to commit unfair labor practices so long as they did so without an act

of the county board. See Harkins v. Grant Park Ass’n, 972 N.W.2d 381, 387 (Minn. 2022)

(rejecting an interpretation of a statute “contrary to the principle” that courts “attempt to

avoid interpretations that would render a word or phrase superfluous, void, or

insignificant”); McBee v. Team Indus., Inc., 925 N.W.2d 222, 229 (Minn. 2019) (rejecting

an interpretation of statute, in part, because it “would make the word ‘unless’ meaningless,

an outcome normally disfavored in statutory interpretation”); see also Minn. Stat. § 645.16

(2024) (“Every law shall be construed, if possible, to give effect to all its provisions.”).

In short, the county seeks to excuse its unilateral implementation and rescission of

a wage increase because those acts did not result from a formal resolution of the county

board. We are not persuaded because the county’s interpretation asks us to insert a

requirement for “county board” action and also renders superfluous PELRA’s prohibition

against unfair labor practices by the “agents and representatives” of counties. 6 We therefore

6
We also reject the county’s related argument that the county administrator’s “purported
action to modify a contract is ineffective” absent actual or apparent authority to implement
or rescind the unilateral wage increase and to refuse to bargain. The county administrator’s
actual or apparent authority is not an issue because the county implemented and rescinded
the wage increase and refused the union’s request to bargain throughout the relevant period.

15
hold that counties, along with their agents and representatives, are prohibited from

engaging in unfair labor practices, as provided in section 179A.13, subdivisions 1 and 2.

B. The county’s refusal to meet and negotiate about implementing and
rescinding the January 10 wage increase is not excused because it
occurred during the CBA’s unexpired term.

The county maintains that its implementation and rescission of the January 10 wage

increase and its related refusal to bargain were not unfair labor practices for two reasons.

First, the county argues that PELRA does not require an employer to “reopen a closed

contract to bargain over terms expressly covered by the [contract] during its unexpired

term.” Second, the county contends that PERB erred in “imposing affirmative bargaining

obligations upon the County” because “there is no continuous obligation—or right—to

bargain over matters covered by a contract midterm.” PERB counters that “PELRA

mandates bargaining over wages without any consideration of whether a CBA is in effect,

closed, or subject to reopening.”

We are not persuaded by the county’s first argument. PELRA provides for a public

employer’s obligation to bargain about the terms and conditions of employment and does

not mention whether the parties are operating under an existing agreement, much less

excuse the obligation to bargain on that basis. Minn. Stat. § 179A.07, subd. 2. In other

words, the statute does not include language that supports the county’s argument. The

Minnesota Supreme Court offers some support for rejecting the county’s position. In

interpreting PELRA, the supreme court recognized that the employer and employee’s duty

to meet and negotiate under the National Labor Relations Act (NLRA), 29 U.S.C.

§§ 151-169 (2018), “extends beyond the negotiation stages and applies to grievances and

16
labor management relations during the term of the agreement.” Int’l Union of Operating

Eng’rs, Local No. 49 v. City of Minneapolis, 233 N.W.2d 748, 752-53 (Minn. 1975) (citing

NLRB v. C & C Plywood Corp., 385 U.S. 421 (1967)). The supreme court has stated that,

when interpreting PELRA, “it is often instructive to refer to decisions interpreting” the

NLRA, though such decisions are not binding. Id. at 752.

Caselaw from this court also reinforces our conclusion that unfair labor practices

may arise during the unexpired term of a CBA. In Education Minnesota-Greenway, Local

1330 v. Independent School District No. 316, this court upheld an unfair labor practice

determination when a school district “unilaterally froze wages and benefits under the

existing CBA” with a teacher’s union. 673 N.W.2d 843, 849 (Minn. App. 2004) (emphasis

added), rev. denied (Minn. Apr. 20, 2004). At the time the school district froze wages and

benefits for its teachers, the original term of the CBA had expired. Id. at 846. But this court

noted, by “law and by its terms, that CBA remained in effect until the parties reached a

new agreement.” Id.

The county contends that Education Minnesota-Greenway is “starkly different from

the present case” because the employer’s unilateral change occurred “after the labor

agreement had expired, during successor agreement negotiations.” The county is correct

that, unlike the CBA in Education Minnesota-Greenway, the CBA here had not yet expired.

But we see no reason to distinguish between a public employer’s unilateral change to

wages—a term and condition of employment—during a CBA’s unexpired term and a

similar unilateral change while a CBA remains in effect after expiration, as in Education

Minnesota-Greenway.

17
 This court’s reasoning in Education Minnesota-Greenway suggests that no

distinction should be made. There, this court bluntly stated that, because of the school

district’s unilateral change, “[t]he union was placed in the position of having to bargain for

wages and benefits that were already in place” and thus the school district violated its

statutory duty to meet and negotiate with the union. Id. at 852. The same is true here

because the county’s unilateral change placed the union in the position of bargaining for a

wage increase that was not in the CBA. Thus, the county unilaterally altered the union’s

bargaining position for a successor CBA.

Second, the county asks us to apply the covered-by doctrine, which provides that a

union may “exercise its right to bargain about a particular subject by negotiating for a

provision in a collective bargaining contract that fixes the parties’ rights and forecloses

further mandatory bargaining as to that subject.” NLRB v. U.S. Postal Serv., 8 F.3d 832,

836 (D.C. Cir. 1993). The county contends that, because “wage increases were negotiated

and memorialized for the full term [of the CBA], the covered-by doctrine protects both the

County and the Union from any obligation to continue bargaining over wages within this

timeframe.” The county relies on NLRA caselaw to support its position. We conclude that

the caselaw cited by the county is not helpful or persuasive.

The county first cites United States Postal Service, in which a federal appellate court

affirmed a district court’s decision that an employer did not commit an unfair labor practice

by refusing to bargain over service reductions. Id. at 834. There, the CBA gave the

employer “the authority unilaterally to implement the disputed service reductions.” Id. This

decision is not persuasive here because the CBA governing these parties provides for a

18
“3.0% general wage increase effective the first pay period in January” and does not provide

for unilateral implementation or rescission of midterm wage changes. It is undisputed that

the January 10 wage increase was separate from the annual general wage increase under

the CBA.

The county also cites Connecticut Light & Power Co., in which the National Labor

Relations Board (NLRB) held that an employer incurs no “bargaining obligation on

proposing a midterm contract modification when the contract does not contain any

reopener language.” 271 N.L.R.B. 766 (1984) (emphasis added). This decision is not

persuasive here because the county did not merely propose the wage increase and

rescission. The county unilaterally implemented the January 10 increase and paid wages at

the increased rate, then unilaterally rescinded the wage increase—unilaterally changing the

terms and conditions of employment. We conclude that NLRA caselaw does not establish

that the covered-by doctrine applies to the CBA governing these parties under these

circumstances.

In sum, a public employer’s duty to meet and negotiate about the terms and

conditions of employment under PELRA continues during the term of an unexpired CBA.

And the covered-by doctrine does not excuse the county from its bargaining obligations

under PELRA because the CBA does not authorize the county to unilaterally implement or

rescind a midterm wage increase.

19
 C. The county’s unilateral implementation and rescission of the
January 10 wage increase is not excused as a contract modification.

The county urges this court to excuse the county’s conduct based on a “contract

modification” theory, as explained in NLRB decisions interpreting the NLRA. The county

contends that “PERB erred by failing to recognize this case as a ‘contract modification’

matter,” leading PERB to (1) “ignore[] the fact that [the county] had a ‘sound arguable

basis’ for believing the 2024 off-cycle increase was appropriate” and (2) impose

“inappropriate remedies.” In essence, the county argues that PERB mistakenly identified

the county’s unilateral wage increase as a unilateral change to the CBA and

mischaracterized the rescission of the wage increase as an unfair labor practice rather than

an appropriate cure of the unilateral increase.

Section 8(d) of the NLRA defines the obligation to bargain collectively under

section 8, 7 with a proviso that “where there is in effect a collective-bargaining

contract . . . the duty to bargain collectively shall also mean that no party to such contract

shall terminate or modify such contract” unless the party provides timely notice to other

parties to the contract and to mediators and “offers to meet and confer with the other party.”

29 U.S.C. § 158(d) (emphasis added); see Bath Iron Works Corp., 345 N.L.R.B. 499, 501

(2005) (discussing NLRA’s prohibition on terminating or modifying a contract as the

7
Section 8(a) of the NLRA provides that it “shall be an unfair labor practice for an
employer to interfere with, restrain, or coerce employees in the exercise of the rights
guaranteed” under section 7 of the NLRA or “to refuse to bargain collectively with the
representative of [its] employees.” 29 U.S.C. § 158(a)(1), (5).

20
“relevant part” of section 8(d) for contract-modification theory), enforced sub nom. Bath

Marine Draftsmen’s Ass’n v. NLRB, 475 F.3d 14 (1st Cir. 2007).

PERB urges us to reject the contract-modification theory, contending that “there is

no provision in PELRA analogous to the modification provisions in section 8(d)” of the

NLRA and that “cases distinguishing between ‘contract modification’ and ‘unilateral

change’ are therefore unhelpful and do not overcome the application of PELRA.”

The union argues that, even if the distinction between unilateral-change and

contract-modification theories applies under PELRA, “the Union and PERB clearly framed

the allegations and litigated the claims in this case under ‘unilateral change’ principles, as

applied by Minnesota courts.” 8

We agree with PERB that PELRA does not have a provision analogous to

section 8(d)’s prohibition on contract termination or modification. The county contends

that “PELRA contains clear analogous provisions” to NLRA section 8(d), but none of the

provisions cited by the county describes modification of a contract as a violation of the

duty to meet and negotiate.

8
Alternatively, PERB and the union contend that the county failed to raise the
contract-modification issue before the hearing officer and PERB and therefore forfeited it
on appeal. The county responds that it adequately preserved this issue. Generally, a party
may not “obtain review by raising the same general issue litigated below but under a
different theory.” Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988); see also Law Enf’t
Lab. Servs., Inc. v. Sherburne County, 695 N.W.2d 630, 639 & n.7 (Minn. App. 2005)
(applying Thiele in an appeal interpreting PELRA).
Here, we assume without deciding that the contract-modification issue is properly
before us and is available under PELRA. Cf. Foley, 353 N.W. 2d at 921 (recognizing that
a unilateral change is not a bad-faith refusal to bargain if “the collective bargaining
agreement authorized the change” or the change is “consistent with the past practices of
the parties”).

21
 Even if contract-modification theory were available under PELRA, we are not

persuaded that the county’s unilateral implementation and rescission of the January 10

wage increase were excused as contract modifications. Relying on NLRB caselaw, the

county argues that, under the contract-modification theory, when an employer “change[s]

a specific negotiated term of the contract without union consent,” the remedy is “to enforce

the contract as written,” not an order to bargain. See Bath Iron Works Corp., 345 N.L.R.B.

at 501. The county also contends that an employer’s contract modification may be excused

when it has a “sound arguable basis” for interpreting the CBA as it did. See NLRB v. Solutia,

Inc., 699 F.3d 50, 72 (1st Cir. 2012). An employer may show a “sound arguable basis” for

modifying a contract based on the language of the labor contract or the parties’ past

practice. Id.

The county fails to show either ground for contract modification. First, the county

does not identify any language in the CBA that authorizes a unilateral, off-cycle wage

increase or rescission, and it insists that it “has never taken the position that the mid-term

wage increase was lawful.”

Second, we are not persuaded by the county’s argument that “a similar off-cycle

increase” in 2022 established a “sound arguable basis” for the 2024 wage increase. Id. Past

practice is not established based on a single instance. See Ramsey County v. AFSCME,

Council 91, Local 8, 309 N.W.2d 785, 788 n.3 (Minn. 1981) (“Past practice has been

defined as a prior course of conduct which is consistently made in response to a recurring

situation and regarded as a correct and required response under the circumstances.”)

(emphasis added) (quotation marks omitted).

22
 Thus, even assuming that the contract-modification theory is available to the county,

we conclude that PERB did not commit legal error by refusing to apply it here. Without

support in either the CBA or the parties’ past practice, the county cannot rely on contract

modification to excuse its unfair labor practices in violation of PELRA. Therefore, the

unilateral rescission of the January 10 wage increase was a separate violation of PELRA,

not a remedy, and the appropriate remedy under PELRA is not limited to enforcing the

terms of the CBA.

D. The county’s unilateral rescission of a unilaterally imposed term and
condition of employment is not the equivalent of ceasing an unfair labor
practice.

The county argues that “an employer may cure its own initial wrongdoing.” The

county also contends that a “unilateral change that is ‘briefly implemented and then

rescinded’ does not constitute a continuing” unfair labor practice, urging that “[s]uch an

interpretation places the county, and by extension, all public employers in an impossible

situation, effectively depriving them of any meaningful ability to self-cure or even mitigate

alleged violations.” PERB disagrees and contends that “the correction” for the county’s

unilateral wage increase “would be to bargain, not to make another unilateral change that

takes away a benefit.”

At the outset, we agree with PERB that, by this argument, the county implicitly

admits that the January 10 unilateral wage increase was an unfair labor practice. We also

agree with PERB that the county’s “cure” argument undermines its position that it is not

responsible for an unfair labor practice without formal action by the county board. Setting

aside these weaknesses in the county’s “cure” argument, the county’s sole authority is an

23
unreported decision of the NLRB, Dycora Transitional Health-Fresno, LLC.

No. 32-CA-215700 (NLRB Feb. 28, 2019), https://apps.nlrb.gov/link/document.aspx/

09031d4582b11624 [https://perma.cc/P5MS-QERB]. 9

The facts in Dycora are not analogous. In Dycora, the employer adjusted

employees’ shift schedules to start and end 15 minutes earlier without bargaining with the

union. Id., slip op. at 4. On the first day the new schedule was in effect, “a total of 8

employees arrived 15 minutes earlier.” Id., slip op. at 7. The employer “informed

all . . . employees that same morning . . . that the new schedule was rescinded.” Id. The

ALJ found that the employer’s briefly implemented unilateral change to employees’

schedules was “de minimis, and not a material and substantial change,” observing that, “at

most, eight employees in a unit of about 190 employees were affected.” Id., slip op. at 9

(quotation omitted). Here, the county’s unilateral implementation of the January 10 wage

increase affected all union employees, unlike a schedule shift that did not change total

hours or wages. Dycora therefore does not support the county’s argument.

PERB also relies on an NLRB decision, Faro Screen Process, Inc., to argue that

rescission of the wage increase was a separate unfair labor practice. 362 N.L.R.B. 718

(2015). PERB contends that, like the employer in Faro, the county “purposefully imposed

the [January 10 wage] increase—i.e., it was not an inadvertent mistake—[therefore] it

9
Dycora is not precedential authority for the NLRB because the administrative-law judge
(ALJ)’s recommendation became final after no exceptions were filed. See Watsonville
Newspapers, LLC, 327 N.L.R.B. 957, 959 n.4 (1999) (stating that the NLRB accepts an
ALJ’s “findings to which no exceptions are filed” as a matter of course but that such
findings “are not . . . considered precedent for any other case”).

24
cannot be rescinded without providing notice and an opportunity to bargain.” In Faro, the

employer implemented a wage increase and “posted a letter [to employees] stating that

‘Union negotiations are underway,’ but announcing that the [employer] was implementing

its proposed 2-percent wage increase.” Id. at 718. The union objected to the unilateral wage

increase, and the employer rescinded the wage increase and posted another letter: “The

union has informed me that they object to implementing the 2 percent raise early. I will

rescind early implementation.” Id.

The NLRB concluded that the employer’s unilateral wage increase was unlawful

and that the “unilateral rescission of the wage increases also constitutes an unlawful

unilateral change, for all the same reasons.” Id. at 725. Determining that the employer’s

“initial change was not an inadvertent mistake,” the NLRB reasoned that, “[h]aving

unlawfully made the change, it cannot be rescinded without providing notice and an

opportunity to bargain.” Id.

The facts in Faro closely parallel the facts here. Faro’s reasoning therefore is

persuasive and supports our conclusion that the county’s unilateral rescission of the

January 10 wage increase was an unfair labor practice and did not “cure” or cease the

unlawful wage increase. 10

10
The county argues that Faro is distinguishable because “the employer in Faro engaged
in direct communications blaming the union for rescinding the increase; no such
allegations, let alone findings, exist in this case.” This argument is contrary to the record,
which establishes that the county attributed the rescission to the union’s response to the
January 10 wage increase. On January 24, the county administrator emailed the union:
“Given the history of your interactions with the county, the threat of an unfair labor practice
being filed is treated as a likely event and responded to accordingly . . . . The reason the

25
 In sum, the county and its agents and representatives are prohibited from engaging

in unfair labor practices under PELRA. The county’s unilateral changes to the terms and

conditions of employment were not excused by the terms of the unexpired CBA, by the

covered-by doctrine, as a contract modification, or as a “cure.” Because the county

unilaterally implemented and rescinded the January 10 wage increase and the county

refused to negotiate about these changes, PERB did not legally err in determining that the

county committed unfair labor practices in violation of Minn. Stat. § 179A.13, subds. 2(1),

(5).

II. PERB’s remedy did not exceed PERB’s statutory authority and was not
arbitrary.

When a hearing officer determines that a charged party “has engaged in or is

engaging in an unfair labor practice,” the hearing officer’s order must require “the party to

cease and desist from the unfair labor practice” and order “any appropriate relief to

effectuate the policies of this section, including but not limited to reinstatement, back pay,

and any other remedies that make a charging party whole.” Minn. Stat. § 179A.13,

subd. 1(i).

To remedy the county’s PELRA violations, PERB ordered the county to cease and

desist from “refusing to bargain collectively” with the union “by unilaterally and without

notice” to the union “changing the terms and conditions of employment,” including

“unilaterally granting” a wage increase and “rescinding previously employer-granted wage

wage increases above the standard had to be pulled back and amended is due to your
threat.”

26
increases.” PERB also ordered the county to (1) pay union employees “the wage increase

granted on January 10, 2024”; (2) pay union employees “any wages lost as a result” of the

unilateral wage rescission “until such time as the [county] and union meet, bargain and

complete negotiations regarding the wage increase”; (3) “pay affected employees a seven

percent (7%) interest per annum on all retroactive pay”; and (4) post copies of PERB’s

decision and order “in conspicuous places.”

On appeal, the county seeks to reverse the portions of PERB’s order reinstating the

January 10 wage increase, directing payment of back pay, and requiring the county to meet

and negotiate on the wage increase. The county does not separately challenge the other

terms of PERB’s remedy. The county argues two reasons to overturn the challenged

remedies, which we discuss in turn.

A. PERB’s Statutory Authority

Appellate courts review claims that an administrative agency has exceeded its

statutory authority under the standard set out in Dietz. See Minn. Internship Ctr. v. Minn.

Dep’t of Educ., 10 N.W.3d 178, 180, 182-83 (Minn. 2024) (applying Dietz to decide

whether the Minnesota Department of Education exceeded its statutory authority in

auditing a charter school in response to a fraud claim). Whether an agency has exceeded

its statutory authority is a question of law that appellate courts review de novo. Id. at 183.

The county presses three ways in which PERB exceeded its statutory authority in ordering

reinstatement of the wage increase and back pay. The county’s argument largely reprises

its arguments to overturn PERB’s unfair labor practice determinations.

27
 First, the county argues that PERB lacked statutory authority to order “the County

to meet and negotiate on terms and conditions of employment that are explicitly covered

by a closed labor agreement with no reopener clause.” In response, PERB contends that

the unexpired CBA does not excuse the county from its obligation to meet and negotiate

about the terms and conditions of employment, as provided by PELRA. As discussed

above, we conclude that the covered-by doctrine does not excuse the county from its

obligations under PELRA because the CBA does not authorize the county to unilaterally

implement or rescind a wage increase.

Second, the county argues that the union was “made whole” when the county

“cease[d] the complained-of conduct and restore[d] the employment terms and conditions

set forth in the CBA” and that, therefore, “no further remedy is warranted or appropriate

under PELRA, and any remedy beyond this scope exceeds PERB’s statutory authority.”

PERB argues that the remedies ordered are authorized because it may order “other

remedies that make a charging party whole.” Minn. Stat. § 179A.13, subd. 1(i). PERB

points out that the county’s unilateral rescission of the January 10 wage increase “not only

decreased the Union employees’ current wages but also adversely affected their pay rate

for future years” and that, therefore, reinstatement and back pay are warranted.

The county’s “made whole” argument is not persuasive because it assumes that the

rescission of the January 10 wage increase was not an unfair labor practice. Moreover,

section 179A.13, subdivision 1(i), authorizes PERB to order “reinstatement, back pay, and

any other remedies that make a charging party whole.” That is exactly what PERB’s

28
reinstatement and back-pay remedies accomplish, given the long-term effects of the

county’s unilateral rescission.

Third, the county contends that PERB “exceeded its authority by ordering the

County to meet and negotiate on terms and conditions of employment that are explicitly

covered by a closed labor agreement with no reopener clause.” As discussed above,

PELRA requires public employers to bargain over changes to terms and conditions of

employment during the term of a CBA. Thus, the county’s statutory-authority arguments

lack merit.

B. Arbitrary

Alternatively, the county contends that PERB’s reinstatement, back-pay, and

negotiation remedies are arbitrary because the remedies are “unreasonable and unjust” and

PERB disregarded the remedies’ collateral consequences. PERB responds that its decision

“was based on the applicable legal standards, and articulated a rational connection between

the facts found and decision made.” 11

Caselaw explains that an administrative decision is arbitrary if the agency (a) “relied

on factors which the legislature had not intended it to consider”; (b) “entirely failed to

consider an important aspect of the problem”; (c) “offered an explanation for the decision

11
The parties argue with reference to the “arbitrary or capricious” standard of review set
out in the Minnesota Administrative Procedure Act (MAPA). Minn. Stat. § 14.69(f) (2024)
(permitting a reviewing court to “reverse or modify” an agency decision that is “arbitrary
or capricious”); see, e.g., Citizens Advocating Responsible Dev. v. Kandiyohi Cnty. Bd. of
Comm’rs, 713 N.W.2d 817, 832 (Minn. 2006) (applying the “arbitrary and capricious”
standard to review an agency decision under MAPA). Because we review PERB’s decision
under the common law, we follow the standard set out in Dietz, which references review
for arbitrariness. 487 N.W.2d at 239.

29
that runs counter to the evidence”; or if (d) “the decision is so implausible that it could not

be ascribed to a difference in view or the product of agency expertise.” Minn. Transitions

Charter Sch. v. Comm’r of the Minn. Dep’t of Educ., 844 N.W.2d 223, 235 (Minn. App.

2014), rev. denied (Minn. May 28, 2014). And “an agency decision is arbitrary and

capricious when [the agency’s] determination represents its will and not its judgment.” Id.

(quotation omitted).

The county argues that PERB’s remedy is arbitrary for four reasons, which we

discuss in turn. First, the county argues that PERB’s “interpretation and application of

PELRA” is arbitrary because PERB “orders the County to reinstate the very pay increase

it previously declared unlawful.” In its brief to this court, PERB responds that “awarding

back wages for the period from the unilateral rescission to the conclusion of successful

bargaining was necessary to make the Union employees whole” because, without a

retroactive remedy, the wage rescission would also decrease employees’ annual

percentage-based increases under the CBA.

PERB’s response is sound. Upon finding that the county committed an unfair labor

practice by unilaterally rescinding the January 10 wage increase and refusing to bargain,

PERB was required to order the county to cease and desist from both practices—rescission

of the wage increase and refusing to bargain. See Minn. Stat. § 179A.13, subd. 1(i).

Ordering back pay is consistent with the cease-and-desist remedies.

Second, the county argues that “PERB is forcing the County to expend taxpayer

dollars on a wage increase never authorized by the elected County Board.” We disagree.

The county’s reasoning is faulty because it assumes the premise rejected above that only

30
wage changes by official act of the county board are unfair labor practices. We also note

that PERB ordered remedies under its authority to “make the charging party whole” in

response to the county’s unilateral rescission of a wage increase. The county’s position

fails to address the remedial purpose of the reinstatement and back-pay order.

Third, the county appears to argue that the reinstatement and back-pay remedies

impose an unreasonable expense. But unreasonable expense is not a defense to remedies

for PELRA violations. See Gen. Drivers Union Local 346 v. Indep. Sch. Dist. No. 704,

283 N.W.2d 524, 528 (Minn. 1979) (“We are mindful of the economic burden imposed

upon defendant . . . . Although regrettable, the plight defendant has brought upon itself is

no defense to circumventing the protections granted the employee under PELRA.”); cf.

NLRB v. Ogle Prot. Serv., Inc., 444 F.2d 502, 504 (6th Cir. 1971) (enforcing a back-pay

order and rejecting the employer’s argument that it would be “economically ruinous”).

Finally, the county argues that PERB’s mandatory bargaining remedy “raises two

critical questions: 1) Since the PERB has ordered reinstatement of the wage increase, what

remains to be bargained? 2) Should the parties reach impasse, does this Order permit the

Union to strike despite the contract being closed?” The county concludes that the

“unresolved questions underscore the arbitrary and capricious nature of the PERB’s

decision.” We recognize that unresolved questions about a remedy’s consequences could

suggest that PERB “entirely failed to consider an important aspect of the problem.” Minn.

Transitions Charter Sch., 884 N.W.2d at 235. But we conclude that the county has not

shown that here.

31
 As for the county’s first “critical question”—what remains for mandatory

bargaining—the supreme court has recognized that it may be appropriate to order

mandatory bargaining even when an employer objects that bargaining would be futile. In

General Drivers Union, the union challenged a school district’s decision to contract

bus-driving services with non-union workers. 283 N.W.2d at 525. The supreme court

affirmed the district court’s order requiring the school district to bargain despite already

having contracted out the bus-driving services. Id. at 528. The supreme court “rejected the

claim that once a decision to contract out is made any negotiation is futile” and reasoned

that, “[e]ven if the school board decides to abide by its decision . . . , the effects of that

decision, including such topics as severance pay and pension, may well be proper subjects

for negotiation.” Id.

Here, in response to the county’s notice of the unilateral wage increase, the union

demanded to negotiate, indicating its interest in “current wages,” “amount of percentage

increase,” “[i]ncreases for all management employees,” and “[r]elevant data from the

compensation study that determined market rate” as potential topics for negotiation.

Because PELRA requires bargaining over changes to wages, and because the union

expressed its demand to negotiate over “proper subjects for negotiation,” it was not

arbitrary for PERB to order mandatory bargaining. Id.

The county’s second “critical question”—whether failure to reach an agreement

would allow union workers to strike—was raised for the first time on appeal. Generally,

this court does not consider issues raised for the first time on appeal. Thiele, 425 N.W.2d

at 582. Even so, public-employee strikes are authorized under PELRA only if “the

32
collective bargaining agreement between their exclusive representative and their employer

has expired” and “the exclusive representative and the employer have participated in

mediation over a period of at least 45 days.” Minn. Stat. § 179A.18, subd. 1(1). Here, the

CBA was not yet expired at the time of the county’s unfair labor practices and continued

in effect for some time after expiration. Minn. Stat. § 179A.20, subd. 6 (“During the period

after contract expiration and prior to the date when the right to strike matures, and for

additional time if the parties agree, the terms of an existing contract shall continue in effect

and shall be enforceable upon both parties.”). In short, the timeline and mediation

requirements for a strike are unaffected by PERB’s decision. Thus, the risk of strike is not

an “important aspect of the problem.” Minn. Transitions Charter Sch., 884 N.W.2d at 235.

We conclude that reinstatement of the wage increase, back pay, and mandatory

bargaining do not exceed PERB’s statutory authority and that these remedies “make the

charging party whole.” We also reject the county’s claim that the challenged remedies were

arbitrary. See Minn. Stat. § 179A.13, subd. 1(i).

III. Ex parte communications between the union and PERB do not require
reversal.

The county argues that ex parte contacts between PERB and the union require

reversal. After the county submitted its certiorari petition, it received the administrative

record, which included copies of communications between PERB and the union that

occurred before PERB released its decision and had not previously been disclosed to the

county. On appeal, the county characterizes the correspondence between the union and

PERB as “undisclosed substantive communications from the opposing

33
party . . . undermin[ing] the fundamental fairness required by Minnesota law” and asserts

that it had no “opportunity to respond” because the communications were not disclosed

until the appeal record was prepared. 12

The first communication occurred on January 14, 2025, when the union emailed

PERB’s executive director, requesting, “[P]lease provide information regarding timelines

for appeal decisions and or a potential timeline for a decision? The elected bargaining unit

leaders are facing pressure from members to see this process moving forward and with

public sector being right to work, I am concerned.” PERB’s executive director replied,

“The Board is working on a decision/order. I cannot say when it will come out.” About two

hours later, the executive director followed up to add the union’s attorney to the email

thread, stating, “I apologize for not including you on my response . . . below.” The PERB

executive director did not copy or forward the emails to the county.

12
The county raises this issue for the first time on appeal; as explained above, the county
had no notice of the relevant communications until it received the administrative record.
Appellate courts generally will not consider an issue raised for the first time on appeal.
Thiele, 425 N.W.2d at 582. This court may, however, “review any other matter as the
interest of justice may require.” Minn. R. Civ. App. P. 103.04. We are guided by the
supreme court’s reasoning in In re Expulsion of A.D., 883 N.W.2d 251 (Minn. 2016).
There, the supreme court addressed an issue raised for the first time on appeal when there
was “no possible advantage or disadvantage to either party in not having a prior ruling on
the question.” A.D., 883 N.W.2d at 261 (quotation omitted). The supreme court reasoned
that “[p]arties are not disadvantaged when the previously unaddressed issue involves a
question of law and the parties had an opportunity to brief the issue.” Id.
Here, the parties briefed the merits of this issue and respondents do not object to
this court deciding the issue. Because the legal principles are clear and the facts are
undisputed, remand to PERB is not necessary. Frazier v. Burlington N. Santa Fe Corp.,
811 N.W.2d 618, 628-29 (Minn. 2012) (addressing an issue raised for the first time on
appeal to avoid remand “[i]n the interest of judicial economy”). A complete resolution of
the issues will be of greater assistance to the parties and is therefore in the interests of
justice. See Minn. R. Civ. App. P. 103.04.

34
 The second communication is dated March 11, 2025; the union wrote to the PERB

chairperson, stating:

The employer appealed [the hearing officer’s] decision in
September 2024. We are still awaiting the appeal response.

....

[W]e are very concerned about our bargaining unit. We
are a new union, going into our third contract and our members
are pressing us for answers. We have had some people drop
their membership and are concerned that further delay will be
a hindrance as we prepare for contract negotiations this fall.

If there is anything the workers can do to help move this
process forward, please let us know.

The PERB chair forwarded the letter to PERB’s executive director, who forwarded it to

the union’s attorney and stated, “See attached letter from your client to the PERB Board

Chair. I’ve advised her that she should not respond to the letter. We are working on the

decision and it should be issued in the near future. Please let me know if you need additional

follow up.” Again, the county was not copied on or forwarded any of this correspondence.

The county makes two arguments to urge that these ex parte communications

require reversal: (1) the emails were “substantive and coercive . . . [by] pressuring the

PERB to issue its ruling based on improper consideration, including the Union’s claim that

it lost members due to this dispute”; and (2) the March correspondence was sent “just two

days” before PERB issued its order, and therefore, it raises “serious concerns about the

undue influence such communications may have had on the PERB’s ultimately flawed

ruling.” PERB contends that “[n]one of the PERB members here communicated with the

union” and “[t]he executive director is not a member of the PERB and thus not a

35
decisionmaker.” Also, “reversal [is] unwarranted because [the executive director’s]

communications were procedural and not substantive.”

Rules enacted under PELRA do not address ex parte communications during PERB

proceedings. See generally Minn. R. 7325.0010-.0410 (2023). In the context of MAPA,

the supreme court considered whether an agency decision appropriately ordered corrective

action when there was “substantial evidence” of “ex parte communication which tainted

the proceedings.” In re Petition of N. States Power Co., 414 N.W.2d 383, 385 (Minn. 1987)

(determining that ex parte communications between a member of the Minnesota Public

Utilities Commission and a power company seeking a rate increase supported the

commission’s reconsideration of decisions in which the member’s vote was “decisive”).

Here, the county contends, and we will assume without deciding, that reversal may be

required when ex parte communications taint the proceedings.

Caselaw clarifies the circumstances under which ex parte communications may taint

the proceedings. First, an administrative judge’s ex parte communication with a party may

require a new hearing when those communications impugn the decisionmaker’s

impartiality and relate to the substance of the proceedings, as seen in Meinzer v. Buhl 66

C & B Warehouse Distributing, Inc., 584 N.W.2d 5 (Minn. App. 1998). There, this court

ordered a new hearing when a reemployment-insurance judge, during a recess in the

proceedings, discussed evidence and laughed with the employer while the employee was

out of the room. Meinzer, 584 N.W.2d at 7. This court explained that “[e]x parte discussion

of evidence in this case, followed by laughter, undermined Meinzer’s confidence in the

impartiality and unbiased nature of her hearing.” Id.

36
 A second opinion provides a helpful contrast to Meinzer. In Moes v. City of St. Paul,

a workers’ compensation judge “misplaced employee’s brief and by ex parte

communication, requested an additional copy of his brief.” 402 N.W.2d 520, 523 (Minn.

1987). On appeal, the supreme court determined that, “[a]lthough not grounds for reversal

in the present case, we wish to caution against ex parte communications between a judge

and one of the parties . . . . The [workers’] compensation judge should have also notified

[the employer] of the communication in order to avoid any appearance of prejudice.” Id. at

524 n.2. 13

With this caselaw in mind, we separately examine the January and March

communications. The union’s January 14, 2025 email expressed “pressure from members”

for a decision by PERB, and PERB’s executive director replied directly to the union and

its attorney without copying the county. While this is troubling, two factors lead us to

13
PERB suggests in a footnote that, in reviewing the union’s ex parte communications with
PERB, this court should find guidance in the Minnesota Code of Judicial Conduct,
reasoning that “its canon on ex parte communication supports the conclusion that the PERB
and its executive director acted properly.” The code provides that, if a judge “inadvertently
receives an unauthorized ex parte communication bearing upon the substance of a matter,
the communication should be noted as received and returned to the sender without review
by the judge.” Minn. Code Jud. Conduct Rule 2.9(B). If a judge “inadvertently reviews”
the communication, “the judge shall make provision to notify the parties promptly of the
substance of the communication and provide the parties with an opportunity to respond.”
Id.
PERB argues by analogy that it did not act improperly in response to the union’s
January or March correspondence because neither the executive director nor the chair
received or reviewed a communication “bearing on the substance of a matter.” As to the
March communication, the PERB chair did not review it and returned the communication
to the union through PERB’s executive director. PERB concludes that it therefore was “not
required to notify the parties or provide an opportunity to respond.” In light of the relevant
caselaw cited in this opinion, we need not decide whether a standard similar to the
Minnesota Code of Judicial Conduct should apply to PERB.

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conclude that the January emails did not taint the proceedings. First, the content of PERB’s

email to the union was a status update and did not address the “pressure from members”

raised by the union; and second, PERB’s email was written by its executive director, who

was not a decisionmaker. See Minn. Stat. § 179A.041, subds. 1, 2(a)(5) (defining PERB’s

composition and powers of its members). Thus, while the union’s communication was

inappropriate and it is better practice for PERB’s executive director to copy all parties on

their communications, the January emails did not taint the proceedings.

The March correspondence is a closer call because the union communicated with

the PERB chair, who is a decisionmaker, and the union’s letter appears to be an attempt to

influence the timing of PERB’s decision. Even the appearance of impropriety undermines

public confidence in PERB. Cf. N. States Power Co., 414 N.W.2d at 386 (reasoning that

the “appearance of impropriety . . . undermines the public confidence in the system” for

setting utility rates).

We conclude, however, that the March correspondence did not taint the proceedings

for two reasons. First, the PERB chair did not review or reply to the union’s letter and

PERB’s executive director responded with a general status update. By forwarding the

union’s letter to PERB’s executive director, the PERB chair maintained the appearance of

impartiality.

Second, the March correspondence did not concern the substance of PERB’s

decision and no evidence suggests that PERB was influenced by the union correspondence

with regard to the timing or substance of its decision. Even when there is an improper

ex parte communication, the relator “bears the burden of demonstrating prejudicial error.”

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Koes v. Advanced Design, Inc., 636 N.W.2d 352, 363 (Minn. App. 2001) (rejecting

argument for reversal based on ex parte communications because there was no evidence of

any substantive communications or prejudice resulting from ex parte communications),

rev. denied (Minn. Feb. 19, 2002).

In short, parties should abstain from ex parte communications with PERB about

timing and procedure and, in the event of an ex parte inquiry, PERB should respond to any

ex parte communication, at the very least, by communicating with all parties. Still, when

ex parte inquiries concern the timing of PERB’s decision, as did the communications the

county challenges, they will seldom undermine “confidence in the unbiased nature” of

proceedings or result in prejudice. Meinzer, 584 N.W.2d at 7. Therefore, we conclude there

is no ground for reversal.

DECISION

The county failed to establish legal error in PERB’s determinations that the county’s

unilateral implementation and rescission of the January 10 wage increase and its refusal to

negotiate with the union about the wage changes were unfair labor practices. PERB’s order

directing reinstatement of the wage increase, back pay, and mandatory bargaining as

remedies did not exceed PERB’s statutory authority and was not arbitrary. Finally,

although two improper ex parte communications occurred between the union and PERB,

these communications did not undermine confidence in the proceedings or prejudice the

outcome and therefore do not warrant reversal.

Affirmed.

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