This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).







School Service Employees Local 284,

Eden Prairie, Minnesota,





Independent School District No. 281,

Robbinsdale, Minnesota, and the

State of Minnesota,

Bureau of Mediation Services,




Filed May 21, 2002

Klaphake, Judge


Bureau of Mediation Services

File No. 01-PCL-1121


Bruce P. Grostephan, Peterson, Engberg & Peterson, 700 Old Republic Title Building, 400 Second Avenue South, Minneapolis, MN  55401 (for relator)


Frank J. Madden, Pamela R. Galanter, Frank Madden & Associates, 505 North Highway 169, Suite 295, Plymouth, MN  55441-6444 (for respondent ISD No. 281)


Mike Hatch, Attorney General, Richard L. Varco, Jr., Assistant Attorney General, 525 Park Street, Suite 200, St. Paul, MN  55103-2106 (for respondent Bureau of Mediation Services)


            Considered and decided by Klaphake, Presiding Judge, Randall, Judge, and Foley, Judge.*

U N P U B L I S H E D   O P I N I O N


            Respondent Independent School District No. 281 filed a “Petition for Clarification or Amendment of Appropriate Unit” with respondent Bureau of Mediation Services (BMS), seeking to exclude six newly created positions, which are held by nine incumbent employees from an existing bargaining unit, on the basis of their supervisory status.  Relator School Service Employees, Local No. 284, is the exclusive representative for the existing unit, described as:

Service employees employed by the School District excluding the following: confidential employees, supervisory employees, essential employees, emergency employees, part-time employees whose service does not exceed 14 hours per week, employees who hold positions of a temporary or seasonal character for a period not in excess of 67 working days in any calendar year.


Based on testimony and evidence presented during a four-day hearing, the hearing officer found that the positions are supervisory within the meaning of Minn. Stat. § 179A.03, subd. 17 (2000), and thus excluded from the existing bargaining unit.

            Relator seeks certiorari review of the clarification order.  Because the commissioner’s decision is supported by substantial evidence in the record and is not arbitrary or capricious or affected by other error of law, we affirm.


            In this certiorari review of a decision by the Commissioner of the Bureau of Mediation Services (BMS) relating to supervisory employees,

            [t]his court will affirm the BMS [c]ommissioner’s decision unless, upon independent evaluation, the decision is shown to be unsupported by substantial evidence, based upon errors of law, or arbitrary and capricious.  When reviewing questions of law, this court is not bound by the agency’s decision and need not defer to the agency’s expertise. Statutory construction is a question of law, subject to de novo review.


Minn. Teamsters Pub. & Law Enforcement Employee’s Union, Local No. 320 v. County of McLeod, 509 N.W.2d 554, 556 (Minn. App. 1993) (citations omitted); see also Minn. Stat. § 179A.051 (2000) (“Decisions of the commissioner relating to supervisory * * * employees * * * may be reviewed on certiorari by the court of appeals.”).


            Relator argues that the hearing officer erred by refusing to consider whether respondent committed unfair labor practices by allegedly meeting and negotiating with the nine employees from the unit without giving relator notice of its intent to do so.  The commissioner, however, has the authority to hear claims of unfair labor practices only when those claims affect the result of an election.  See Minn. Stat. § 179A.12, subd. 11 (2000).  Claims of unfair labor practices must be brought in district court under Minn. Stat. § 179A.13, subd. 1 (2000) (“Any employee, employer, employee or employer organization, exclusive representative, or any other person or organization aggrieved by an unfair labor practice * * * may bring an action * * * in the district court of the county in which the practice is alleged to have occurred.”).  Thus, district courts have original jurisdiction over claims of unfair labor practices that arise outside of an election.  See Am. Fed’n of State, County & Mun. Employees Local 66 v. St. Louis County Bd. of Commr’s, 281 N.W.2d 166, 170 (Minn. 1979) (“district court has jurisdiction over an action alleging an unfair labor practice by a public employer”).

            Because the district court has jurisdiction over claims of unfair labor practices, the hearing officer did not err in determining that the commissioner lacked authority to consider these claims.  The parties’ various arguments regarding whether respondent’s actions constituted improper negotiations or involved inherent managerial policy, which may implicate unfair labor practices, are outside the scope of this appeal.  Cf. Minneapolis Ass’n of Adm’rs & Consultants v. Minneapolis Special Sch. Dist. No. 1, 311 N.W.2d 474, 475 (Minn. 1981) (rejecting union’s claim that school district committed unfair labor practice when it altered several positions by divesting them of their administrative functions, without engaging in collective bargaining, and then petitioned to eliminate those petitions from bargaining unit that represented supervisory employees). 


            Relator argues that the hearing officer erred by refusing to allow it to introduce evidence on how respondent treated the employees.  Relator claims that this evidence falls within the community-of-interest factors, which include “the history and extent of [the] organization” and “the desires of the petitioning employee representatives.”  Minn. Stat. § 179A.09, subd. 1 (2000).  Relator argues that these factors must be considered whenever the commissioner exercises his power to determine appropriate units.  See Minn. Stat. § 179A.04, subd. 2 (2000) (commissioner’s powers, authority, and duties include “determin[ing] appropriate units, under the criteria of section 179A.09”).

            Respondent’s petition, however, did not seek to determine the appropriateness of a unit; rather, it sought to clarify an existing unit by determining whether these nine employees should be excluded from the unit because, with their new job duties, they are now supervisory employees.  See Minn. Stat. § 179A.03, subd. 17 (2000) (definition of supervisory employee).  Despite dicta in several cases from this court that suggest otherwise, the community-of-interest factors set out in Minn. Stat. § 179A.09 are not relevant and do not apply to petitions seeking to clarify a unit by determining whether certain employees are supervisory.  See, e.g., In re Petition for Clarification of Appropriate Unit, 555 N.W.2d 552, 554 (Minn. App. 1996) (discussing community of interest criteria in certiorari appeal from commissioner’s order prohibiting confidential supervisory employee from remaining in supervisory bargaining unit); Local No. 320, 509 N.W.2d at 556 (citing community of interest criteria on review of commissioner’s order concluding that employee was supervisory and thus member of unit composed of supervisory employees).

            Even if the community-of-interest factors were relevant to this proceeding, those factors do not involve unfair labor practices.  As respondent aptly states:

The factors [set out in Minn. Stat. § 179A.09, subd. 1] are intended to aid in determining whether the classifications proposed for inclusion in an appropriate unit have a sufficient community of interest so as to promote orderly and constructive collective bargaining, rather than divergent interests and goals that may result in turmoil and an inability of either the employer or the exclusive representative to meet the needs of all members.


The evidence relator claims that it would offer on the community-of-interest factors appears identical to the evidence it cites in support of its unfair labor practices claim.  We agree with respondent and BMS that relator’s arguments on this issue are merely an attempt to “bootstrap” its claims of unfair labor practices onto the community-of-interest factors.  The hearing officer’s refusal to allow evidence on relator’s claimed community-of-interest factors was thus appropriate.


            The process for excluding supervisory employees from a nonsupervisory bargaining unit is set forth as follows:

            The removal of employees by the employer from a nonsupervisory appropriate unit for the purpose of designating the employees as “supervisory employees” shall require either the prior written agreement of the exclusive representative and the written approval of the commissioner or a separate determination by the commissioner before the redesignation is effective.


Minn. Stat. § 179A.03, subd. 17.  This statute further sets out the criteria to be considered when determining whether an employee is a supervisor:

            “Supervisory employee” means a person who has the authority to undertake a majority of the following supervisory functions in the interests of the employer:  hiring, transfer, suspension, promotion, discharge, assignment, reward, or discipline of other employees, direction of the work of other employees, or adjustment of other employee’s grievances on behalf of the employer.  To be included as a supervisory function which the person has authority to undertake, the exercise of the authority by the person may not be merely routine or clerical in nature but must require the use of independent judgment.  An employee, other than an essential employee, who has authority to effectively recommend a supervisory function, is deemed to have authority to undertake that supervisory function for the purpose of this subdivision.



            At the beginning of the hearing, both parties agreed that these employees do not have the authority to transfer.  And in this certiorari appeal, relator does not specifically challenge the hearing officer’s findings that the employees have authority to assign, reward, discipline (oral and written reprimands), and direct the work of other employees.  Thus, these five factors are not at issue here and will not be addressed.

            Relator argues that because only the school board has the authority to hire, discharge, suspend, or promote employees and because the school board cannot delegate this authority to other individuals, these employees cannot be assigned these responsibilities.  See Minn. Stat. § 123B.02, subd. 14 (2000) (school “[b]oard may employ and discharge necessary employees and may contract for other services”).  Relator also argues that the evidence fails to establish that the employees have authority to exercise independent judgment in the adjustment of grievances.  Relator finally argues that the testimony of the employees failed to establish that they have current actual authority or ability to perform these functions.  See County of McLeod v. Law Enforcement Labor Servs., Inc., 499 N.W.2d 518, 520 (Minn. App. 1993) (employee must have current actual authority to exercise majority of supervisory functions).

            The statute requires only that the employees exercise independent judgment and have “authority to effectively recommend a supervisory function.”  Minn. Stat. § 179A.03, subd. 17 (emphasis added).[1]  When dealing with newly created job descriptions, the evidence must show that there has been an express delegation of supervisory functions to the employees, the employees have been trained regarding their new responsibilities, and the employees have the knowledge necessary to meet their new responsibilities and intend to do so. 

            The employees here testified that they have accepted the responsibility for these supervisory functions and that they have the knowledge and training to exercise these functions.  They further testified that they would make independent judgments in each of these areas and make their recommendations to their immediate supervisors.  In turn, their immediate supervisors testified that they delegated these functions to these employees and that they would follow the recommendations made by these employees.

            We conclude that this testimony was sufficient to support the conclusion that these employees will exercise their independent judgment and that they have the “current authority to undertake the function.”  The commissioner’s decision that the nine employees are supervisory employees is therefore supported by substantial evidence in the record and is not arbitrary or capricious.  See County of McLeod, 499 N.W.2d at 520-21 (affirming commissioner’s decision that patrol and investigative sergeants are not supervisory employees, where they had authority to undertake only five of the ten supervisory functions and where sergeants, who are essential employees, only have power to effectively recommend suspension).

            We therefore affirm the decision of the commissioner.


* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.


[1] Although this language does not appear to apply to essential employees, at oral arguments before this court, relator conceded that these employees are not “essential.”  Minn. Stat. § 179A.03, subd. 7 (2000) (definition of “essential” employee).