SF 2506

1st Engrossment - 88th Legislature (2013 - 2014) Posted on 04/10/2014 09:05am

A bill for an act
relating to labor; creating the Public Employment Relations Board; authorizing
rulemaking; appropriating money; amending Minnesota Statutes 2012, sections
179A.03, by adding a subdivision; 179A.04, subdivision 3; 179A.051; 179A.06,
by adding a subdivision; 179A.10, subdivision 1; 179A.13; proposing coding
for new law in Minnesota Statutes, chapter 179A.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

Minnesota Statutes 2012, section 179A.03, is amended by adding a
subdivision to read:

new text begin Subd. 2a. new text end

new text begin Board. new text end

new text begin "Board" means the Public Employment Relations Board under
section 179A.041.
new text end

Sec. 2.

Minnesota Statutes 2012, section 179A.04, subdivision 3, is amended to read:

Subd. 3.

Other duties.

(a) The commissioner shall:

(1) provide mediation services as requested by the parties until the parties reach
agreement, and may continue to assist parties after they have submitted their final
positions for interest arbitration;

(2) issue notices, subpoenas, and orders required by law to carry out duties under
sections 179A.01 to 179A.25;

(3) assist the parties in formulating petitions, notices, and other papers required to be
filed with the commissioner new text begin or the board new text end ;

(4) conduct elections;

(5) certify the final results of any election or other voting procedure conducted
under sections 179A.01 to 179A.25;

(6) adopt rules relating to the administration of this chapter and the conduct of
hearings and elections;

(7) receive, catalogue, file, and make available to the public all decisions of
arbitrators and panels authorized by sections 179A.01 to 179A.25, all grievance arbitration
decisions to the extent the decision is public under section 13.43, subdivision 2, paragraph
(b), and the commissioner's orders and decisions;

(8) adopt, subject to chapter 14, a grievance procedure that fulfills the purposes of
section 179A.20, subdivision 4, that is available to any employee in a unit not covered by
a contractual grievance procedure;

(9) maintain a schedule of state employee classifications or positions assigned to
each unit established in section 179A.10, subdivision 2;

(10) collect fees established by rule for empanelment of persons on the labor
arbitrator roster maintained by the commissioner or in conjunction with fair share fee
challenges. Arbitrator application fees will be $100 per year for initial applications and
renewals effective July 1, 2007;

(11) provide technical support and assistance to voluntary joint labor-management
committees established for the purpose of improving relationships between exclusive
representatives and employers, at the discretion of the commissioner;

(12) provide to the parties a list of arbitrators as required by section 179A.16,
subdivision 4; deleted text begin and
deleted text end

(13) maintain a list of up to 60 arbitrators for referral to employers and exclusive
representatives for the resolution of grievance or interest disputes. Each person on the
list must be knowledgeable about collective bargaining and labor relations in the public
sector, well versed in state and federal labor law, and experienced in and knowledgeable
about labor arbitration. To the extent practicable, the commissioner shall appoint members
to the list so that the list is gender and racially diverse new text begin ; and
new text end

new text begin (14) upon request of the board, provide administrative support and other assistance
to the board, including assistance in development and adoption of board rules new text end .

(b) From the names provided by representative organizations, the commissioner
shall maintain a list of arbitrators to conduct teacher discharge or termination hearings
according to section 122A.40 or 122A.41. The persons on the list must meet at least
one of the following requirements:

(1) be a former or retired judge;

(2) be a qualified arbitrator on the list maintained by the bureau;

(3) be a present, former, or retired administrative law judge; or

(4) be a neutral individual who is learned in the law and admitted to practice in
Minnesota, who is qualified by experience to conduct these hearings, and who is without
bias to either party.

Each year, education Minnesota shall provide a list of up to 14 names and the Minnesota
School Boards Association a list of up to 14 names of persons to be on the list. The
commissioner may adopt rules about maintaining and updating the list.

Sec. 3.

new text begin [179A.041] PUBLIC EMPLOYMENT RELATIONS BOARD; POWER,
AUTHORITY, AND DUTIES.
new text end

new text begin Subdivision 1. new text end

new text begin Membership. new text end

new text begin The Public Employment Relations Board is
established with three members. One member shall be an officer or employee of an
exclusive representative of public employees and shall be appointed by the governor; one
shall be representative of public employers and shall be appointed by the governor; and
one shall be representative of the public at large and shall be appointed by the other two
members. Public employers and employee organizations representing public employees
may submit for consideration names of persons representing their interests. The board
shall select one of its members to serve as chair for a term beginning July 1 of each year.
new text end

new text begin Subd. 2. new text end

new text begin Alternate members. new text end

new text begin (a) The appointing authorities shall appoint alternate
members to serve only in the case of a member having a conflict of interest under
subdivision 9, as follows:
new text end

new text begin (1) one alternate, appointed by the governor, who is an officer or employee of an
exclusive representative of public employees, to serve as an alternate to the member
appointed by the governor who is an officer or employee of an exclusive representative of
public employees. This alternate must not be an officer or employee of the same exclusive
representative of public employees as the member for whom the alternate serves;
new text end

new text begin (2) one alternate, appointed by the governor, who is a representative of public
employers, to serve as an alternate to the member appointed by the governor who is
a representative of public employers. This alternate must not represent the same public
employer as the member for whom the alternate serves; and
new text end

new text begin (3) one alternate, appointed by the member who is an officer or employee of an
exclusive representative of public employees and the member who is a representative of
public employers, who is not an officer or employee of an exclusive representative of
public employees, or a representative of a public employer, to serve as an alternate for the
member that represents the public at large.
new text end

new text begin (b) Each alternate member shall serve a term that is coterminous with the term of the
member for whom the alternate member serves as an alternate.
new text end

new text begin Subd. 3. new text end

new text begin Terms; compensation. new text end

new text begin The membership terms, compensation, removal
of members, and filling of vacancies for members and alternate members shall be as
provided in section 15.0575.
new text end

new text begin Subd. 4. new text end

new text begin Rules; meetings. new text end

new text begin The board shall adopt rules governing its procedure and
shall hold meetings as prescribed in those rules. The chair shall convene and preside
at meetings of the board.
new text end

new text begin Subd. 5. new text end

new text begin Powers. new text end

new text begin The board shall have the powers and authority required for the
board to take the actions assigned to the board under section 179A.13.
new text end

new text begin Subd. 6. new text end

new text begin Appeals. new text end

new text begin In addition to the other powers and duties given it by law, the
board shall hear and decide appeals from:
new text end

new text begin (1) recommended decisions and orders relating to an unfair labor practice under
section 179A.13; and
new text end

new text begin (2) determinations of the commissioner under section 179A.12, subdivision 11.
new text end

new text begin Subd. 7. new text end

new text begin Rulemaking. new text end

new text begin The board shall adopt rules under chapter 14 governing
the presentation of issues and the taking of appeals under subdivision 6. All issues and
appeals presented to the board shall be determined upon the record of hearing, except that
the board may request additional evidence when necessary or helpful.
new text end

new text begin Subd. 8. new text end

new text begin Employees and contracts. new text end

new text begin The board may hire investigators, hearing
officers, and other employees as necessary to perform its duties, or may enter into
contracts to perform any of the board's duties.
new text end

new text begin Subd. 9. new text end

new text begin Conflict of interest. new text end

new text begin A member must disclose any conflict of interest in
a case before the board and shall not take any action or vote in the case. The person
designated as the recused member's alternate shall serve in place of the member who
has a conflict for all actions and votes on the case, unless the alternate has a conflict of
interest. If both a member and the member's alternate have a conflict of interest in a case,
the appointing authority will appoint a second alternate member, who meets the same
requirements as the alternate member and who has no conflict of interest, to take action
and vote in the case. A board member or alternate member has a conflict of interest in a
case if the member is employed by, an officer of, a member of the governing body of, or
a member of a party in the case.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective July 1, 2014. The board shall be
established and prepared to hear and decide rules under Minnesota Statutes, section
179A.041, subdivision 4, by July 1, 2015.
new text end

Sec. 4.

Minnesota Statutes 2012, section 179A.051, is amended to read:

179A.051 APPEALS OF COMMISSIONER'S DECISIONS.

new text begin (a) new text end Decisions of the commissioner relating to supervisory, confidential, essential,
and professional employees, appropriateness of a unit, or fair share fee challenges may be
reviewed on certiorari by the Court of Appeals. A petition for a writ of certiorari must be
filed and served on the other party or parties and the commissioner within 30 days from
the date of the mailing of the commissioner's decision. The petition must be served on the
other party or parties at the party's or parties' last known address.

new text begin (b) Decisions of the commissioner relating to unfair labor practices under section
179A.12, subdivision 11, may be appealed to the board if the appeal is filed with the board
and served on all other parties no later than 30 days after service of the commissioner's
decision.
new text end

Sec. 5.

new text begin [179A.052] APPEALS OF BOARD'S DECISIONS.
new text end

new text begin Decisions of the board relating to unfair labor practices under section 179A.12,
subdivision 11, or 179A.13 including dismissal of unfair labor practice charges, may be
reviewed on certiorari by the Court of Appeals. A petition for a writ of certiorari must be
filed and served on the other party or parties and the board within 30 days from the date
of the mailing of the board's decision. The petition must be served on the other party or
parties at the party's or parties' last known address.
new text end

Sec. 6.

Minnesota Statutes 2012, section 179A.06, is amended by adding a subdivision
to read:

new text begin Subd. 7. new text end

new text begin Concerted activity. new text end

new text begin Public employees have the right to engage in concerted
activities for the purpose of collective bargaining or other mutual aid or protection.
new text end

Sec. 7.

Minnesota Statutes 2012, section 179A.10, subdivision 1, is amended to read:

Subdivision 1.

Exclusions.

The commissioner of management and budget shall
meet and negotiate with the exclusive representative of each of the units specified in
this section, except as provided in section 43A.06, subdivision 1, paragraph (c). The
units provided in this section are the only appropriate units for executive branch state
employees. The following employees shall be excluded from any appropriate unit:

(1) the positions and classes of positions in the classified and unclassified services
defined as managerial by the commissioner of management and budget in accordance
with section 43A.18, subdivision 3, and so designated in the official state compensation
schedules;

(2) unclassified positions in the Minnesota State Colleges and Universities defined
as managerial by the Board of Trustees;

(3) positions of physician employees compensated under section 43A.17,
subdivision 4;

(4) positions of all unclassified employees appointed by a constitutional officer;

(5) positions in the Bureau new text begin of Mediation Services and the Public Employment
Relations Board new text end ;

(6) positions of employees whose classification is pilot or chief pilot;

(7) administrative law judge and compensation judge positions in the Office of
Administrative Hearings; and

(8) positions of all confidential employees.

The governor may upon the unanimous written request of exclusive representatives
of units and the commissioner direct that negotiations be conducted for one or more units
in a common proceeding or that supplemental negotiations be conducted for portions of a
unit or units defined on the basis of appointing authority or geography.

Sec. 8.

Minnesota Statutes 2012, section 179A.13, is amended to read:

179A.13 UNFAIR LABOR PRACTICES.

Subdivision 1.

Actions.

new text begin (a) new text end The practices specified in this section are unfair labor
practices. Any employee, employer, employee or employer organization, exclusive
representative, or any other person or organization aggrieved by an unfair labor practice as
defined in this section may deleted text begin bring an action for injunctive relief and for damages caused by
the unfair labor practice in the district court of the county in which the practice is alleged
to have occurred. A copy of any complaint alleging an unfair labor practice must be filed
with the commissioner at the time it is brought in district court. The party bringing an
unfair labor practice action in district court shall also transmit to the commissioner any
orders or judgments of the court within ten days of the order or judgment deleted text end new text begin file an unfair
labor practice charge with the board new text end .

new text begin (b) Whenever it is charged that any party has engaged in or is engaging in any
unfair labor practice, an investigator designated by the board shall promptly conduct
an investigation of the charge. If after the investigation the board finds that the charge
involves a material issue of law or fact, the board shall promptly issue a complaint and
cause to be served upon the party a complaint stating the charges, accompanied by a
notice of hearing before a qualified hearing officer designated by the board at the offices of
the bureau or other location as the board deems appropriate, not less than five days nor
more than 20 days after serving the complaint, provided that no complaint shall be issued
based upon any unfair labor practice occurring more than six months prior to the filing of
a charge. A complaint issued under this subdivision may be amended by the board at any
time prior to the issuance of an order based thereon. The party who is the subject of the
complaint has the right to file an answer to the original or amended complaint prior to
hearing and to appear in person or by a representative and give testimony at the place and
time fixed in the complaint. In the discretion of the hearing officer conducting the hearing
or the board, any other party may be allowed to intervene in the proceeding and to present
testimony. The board or designated hearing officers shall not be bound by the rules of
evidence applicable to courts, except as to the rules of privilege recognized by law.
new text end

new text begin (c) Designated investigators must conduct the investigation of charges.
new text end

new text begin (d) Hearing officers must be licensed to practice law in the state of Minnesota and
must conduct the hearings and issue recommended decisions and orders.
new text end

new text begin (e) The board or its designees shall have the power to issue subpoenas and administer
oaths. If any party willfully fails or neglects to appear or testify or to produce books,
papers, and records pursuant to the issuance of a subpoena, the board may apply to a
court of competent jurisdiction to request that the party be ordered to appear to testify or
produce the requested evidence.
new text end

new text begin (f) A full and complete record shall be kept of all proceedings before the board or
designated hearing officer and shall be transcribed by a reporter appointed by the board.
new text end

new text begin (g) The party on whom the burden of proof rests shall be required to sustain the
burden by a preponderance of the evidence.
new text end

new text begin (h) At any time prior to the close of a hearing, the parties may by mutual agreement
request referral to mediation, at which time the commissioner shall appoint a mediator,
and the hearing shall be suspended pending the results of the mediation.
new text end

new text begin (i) If, upon a preponderance of the evidence taken, the hearing officer determines
that any party named in the charge has engaged in or is engaging in an unfair labor
practice, then a recommended decision and order shall be issued stating findings of fact
and conclusions, and requiring the party to cease and desist from the unfair labor practice,
to post a cease-and-desist notice in the workplace, and to take action to effectuate the
policies of this section, including reinstatement of public employees with back pay and
compensatory damages up to three times the amount of actual damages. If back pay is
awarded, the award must include interest at the rate of seven percent per annum. The
order further may require the party to make reports from time to time, and demonstrate
the extent to which the party has complied with the order.
new text end

new text begin (j) If there is no preponderance of evidence that the party named in the charge has
engaged in or is engaging in the unfair labor practice, then the hearing officer shall issue a
recommended decision and order stating findings of fact and dismissing the complaint.
new text end

new text begin (k) Parties may file exceptions to the hearing officer's recommended decision and
order with the board no later than 30 days after service of the recommended decision
and order. The board shall review the recommended decision and order upon timely
filing of exceptions or upon its own motion. If no timely exceptions have been filed, the
parties must be deemed to have waived their exceptions. Unless the board reviews the
recommended decision and order upon its own motion, it must not be legal precedent and
must be final and binding only on the parties to the proceeding as issued in an order issued
by the board. If the board does review the recommended decision and order, the board
may adopt all, part, or none of the recommended decision and order, depending on the
extent to which it is consistent with the record and applicable laws. The board shall issue
and serve on all parties its decision and order. The board shall retain jurisdiction over the
case to ensure the parties' compliance with the board's order. Unless overturned by the
board, the parties must comply with the recommended decision and order.
new text end

new text begin (l) Until the record has been filed in the court of appeals or district court, the board at
any time, upon reasonable notice and in a manner it deems appropriate, may modify or set
aside, in whole or in part, any finding or order made or issued by it.
new text end

new text begin (m) Upon a final order that an unfair labor practice has been committed, the board or
the charging party may petition the district court for the enforcement of the order and for
appropriate temporary relief or a restraining order. When the board petitions the court, the
charging party may intervene as a matter of right.
new text end

new text begin (n) Whenever it appears that any party has violated a final order of the board issued
pursuant to this section, the board must petition the district court for an order directing the
party and its officers, agents, servants, successors, and assigns to comply with the order of
the board. The board shall be represented in this action by its general counsel, who has
been appointed by the board. The court may grant or refuse, in whole or in part, the relief
sought, provided that the court also may stay an order of the board pending disposition of
the proceedings. The court may punish a violation of its order as in civil contempt.
new text end

new text begin (o) The board shall have power, upon issuance of an unfair labor practice complaint
alleging that a party has engaged in or is engaging in an unfair labor practice, to petition
the district court for appropriate temporary relief or a restraining order. Upon the filing
of any such petition, the court shall cause notice thereof to be served upon such parties,
and thereupon shall have jurisdiction to grant to the board or commissioner temporary
relief or a restraining order as it deems appropriate. Nothing in this paragraph precludes
a charging party from seeking injunctive relief in district court after filing the unfair
labor practice charge.
new text end

new text begin (p) The proceedings in paragraphs (m), (n), and (o) shall be commenced in the
district court for the county in which the unfair labor practice which is the subject of
the order or administrative complaint was committed, or where a party alleged to have
committed the unfair labor practice resides or transacts business.
new text end

new text begin (q) The board shall not defer to any grievance and arbitration procedure or other
legal process in investigating or deciding any unfair labor practice case, charge, or claim.
new text end

Subd. 2.

Employers.

Public employers, their agents and representatives are
prohibited from:

(1) interfering, restraining, or coercing employees in the exercise of the rights
guaranteed in sections 179A.01 to 179A.25;

(2) dominating or interfering with the formation, existence, or administration of any
employee organization or contributing other support to it;

(3) discriminating in regard to hire or tenure to encourage or discourage membership
in an employee organization;

(4) discharging or otherwise discriminating against an employee because the
employee has signed or filed an affidavit, petition, or complaint or given information or
testimony under sections 179A.01 to 179A.25;

(5) refusing to meet and negotiate in good faith with the exclusive representative of
its employees in an appropriate unit;

(6) refusing to comply with grievance procedures contained in an agreement;

(7) distributing or circulating a blacklist of individuals exercising a legal right or
of members of a labor organization for the purpose of preventing blacklisted individuals
from obtaining or retaining employment;

(8) violating rules established by the commissioner regulating the conduct of
representation elections;

(9) refusing to comply with a valid decision of a binding arbitration panel or arbitrator;

(10) violating or refusing to comply with any lawful order or decision issued by
the commissioner new text begin or the board new text end ;

(11) refusing to provide, upon the request of the exclusive representative, all
information pertaining to the public employer's budget both present and proposed,
revenues, and other financing information provided that in the executive branch of state
government this clause may not be considered contrary to the budgetary requirements of
sections 16A.10 and 16A.11; or

(12) granting or offering to grant the status of permanent replacement employee
to a person for performing bargaining unit work for the employer during a lockout of
employees in an employee organization or during a strike authorized by an employee
organization that is an exclusive representative.

Subd. 3.

Employees.

Employee organizations, their agents or representatives,
and public employees are prohibited from:

(1) restraining or coercing employees in the exercise of rights provided in sections
179A.01 to 179A.25;

(2) restraining or coercing a public employer in the election of representatives to be
employed to meet and negotiate or to adjust grievances;

(3) refusing to meet and negotiate in good faith with a public employer, if the
employee organization is the exclusive representative of employees in an appropriate unit;

(4) violating rules established by the commissioner regulating the conduct of
representation elections;

(5) refusing to comply with a valid decision of an arbitration panel or arbitrator;

(6) calling, instituting, maintaining, or conducting a strike or boycott against any
public employer on account of any jurisdictional controversy;

(7) coercing or restraining any person with the effect to:

(i) force or require any public employer to cease dealing or doing business with any
other person;

(ii) force or require a public employer to recognize for representation purposes an
employee organization not certified by the commissioner;

(iii) refuse to handle goods or perform services; or

(iv) prevent an employee from providing services to the employer;

(8) committing any act designed to damage or actually damaging physical property
or endangering the safety of persons while engaging in a strike;

(9) forcing or requiring any employer to assign particular work to employees in a
particular employee organization or in a particular trade, craft, or class rather than to
employees in another employee organization or in another trade, craft, or class;

(10) causing or attempting to cause a public employer to pay or deliver or agree to
pay or deliver any money or other thing of value, in the nature of an exaction, for services
which are not performed or not to be performed;

(11) engaging in an unlawful strike;

(12) picketing which has an unlawful purpose such as secondary boycott;

(13) picketing which unreasonably interferes with the ingress and egress to facilities
of the public employer;

(14) seizing or occupying or destroying property of the employer;

(15) violating or refusing to comply with any lawful order or decision issued by
the commissioner new text begin or the board new text end .

Sec. 9. new text begin APPROPRIATION; INITIAL ASSISTANCE.
new text end

new text begin (a) $125,000 in fiscal year 2015 is appropriated from the general fund to the
commissioner of the Bureau of Mediation Services for purposes of the Public Employment
Relations Board under Minnesota Statutes, section 179A.041. This appropriation is
added to the base.
new text end

new text begin (b) The commissioner of the Bureau of Mediation Services must call the first
meeting of the board, and must assist the board in its initial operations, including
development and adoption of the board's initial rules.
new text end

Sec. 10. new text begin EFFECTIVE DATE.
new text end

new text begin Sections 1, 2, and 4 to 8, are effective July 1, 2015. Section 9 is effective July 1, 2014.
new text end