This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




In the Matter of a Petition for

Clarification of an Appropriate Unit.

Filed January 12, 1999


Klaphake, Judge

Bureau of Mediation Services

File No. 98-PCL-1316

Anne Lewis, Fryberger, Buchanan, Smith & Frederick, P.A., 302 West Superior St., Ste. 700, Duluth, MN 55802; and

Steven Fecker, P.O. Box 206, Grand Rapids, MN 55744 (for relator Grand Rapids PUC)

Mitchell Brunfelt, 118 Central Ave., Nashwauk, MN 55769 (for respondent AFSCME)

Commissioner, Bureau of Mediation Services, 1380 Energy Lane, Ste. 2, St. Paul, MN 55108 (for respondent BMS)

Gregg M. Corwin, Karin E. Peterson, Gregg M. Corwin & Assoc., 1660 S. Highway 100, Ste. 508E, St. Louis Park, MN 55416 (for amicus curiae AFSCME Councils 6 & 14)

Considered and decided by Klaphake, Presiding Judge, Davies, Judge, and Amundson, Judge.



Because the decision of the Commissioner of the Bureau of Mediation Services is based on an erroneous interpretation of the statutory exception excluding temporary employees from a public employee bargaining unit under Minn. Stat. § 179A.03, subd. 14 (Supp. 1997), we reverse.


Relator Grand Rapids Public Utilities Commission (PUC) seeks review of a decision of the Commissioner of the Bureau of Mediation Services (BMS) clarifying the bargaining unit represented by respondent American Federation of State, County and Municipal Employees, Council 65 (local). The underlying facts are not disputed. When the wastewater treatment plant manager departed in March 1997, staff was shifted and vacancies created in the PUC workforce. Through a temporary agency, the PUC hired Jason Hulbert to fill a vacancy for a wastewater plant operator on July 7, 1997. Hulbert worked in that position for 66 days until October 2, 1997. The PUC then hired Hulbert to fill a vacancy with the water and sewer crew on October 6, 1997 through the end of the year. That position lasted 59 days. The parties stipulated that the PUC was Hulbert's employer and that Hulbert was a full-time employee under the bargaining agreement. The BMS conducted a hearing and by a decision of its commissioner determined that Hulbert was a public employee included in the unit.


The commissioner's decision is sustained unless it is "unsupported by substantial evidence, based upon errors of law, or arbitrary and capricious." County of McLeod v. Law Enforcement Labor Services, Inc., 499 N.W.2d 518, 520 (Minn. App. 1993) (quoting Hennepin County Court Employees Grup v. Public Employment Relations Bd., 274 N.W.2d 492, 494 (Minn. 1979). A public employee is any person employed by a public employer, with certain exceptions. Minn. Stat. § 179A.03, subd. 14 (Supp. 1997). This appeal focuses on the exception for temporary employees.

The statute specifically excludes "employees whose positions are * * * temporary * * * and * * * are not for more than 67 working days." Minn. Stat. § 179A.03, subd. 14 (f)(1). While the statute's 67-day limitation is clear, its plural reference to "positions" is ambiguous when applied to a single employee because the statute also makes a plural reference to "employees." Arguably, "67 days" could apply cumulatively to more than one position or could apply to each position. The commissioner ruled that Hulbert was a public employee because he was employed by the PUC for more than 67 days in the calendar year, 66 days as a wastewater plant operator and 59 days with the water and sewer crew.

We interpret an ambiguous statute consistent with "legislative intent and in a sensible manner that avoids unreasonable, unjust, or absurd results." Minnesota Mining and Mfg. Co. v. Nishika Ltd., 565 N.W.2d 16, 20 (Minn. 1997) (citations omitted). The legislature's exception for temporary employees recognizes a public employer's need to employ persons temporarily until a permanent employee can be hired to fill a permanent vacancy. See Independent Sch. Dist. No. 621 v. Public Employment Relations Bd., 268 N.W.2d 410, 414 (Minn. 1978) (intent of legislature is to exclude those employed on temporary basis for period not to exceed statutory maximum number of days); American Fed'n of State, County, and Mun. Employees, Council No. 65 v. Public Employment Relations Bd., 372 N.W.2d 786, 790 (Minn. App. 1985) (when temporary hire reached 68th day of employment in position, she became public employee by operation of law), review denied (Minn. Oct. 24, 1985).

Relator argues there would be no dispute if it had hired two different employees for each temporary position and that the statute does not require a different result simply because it hired the same temporary employee for two different temporary positions. Focusing on the substance of the employment relationship, relator's point is persuasive.

Hulbert worked temporarily for 66 days as a wastewater plant operator until the position could be posted and filled under the terms of the collective bargaining agreement. Next, Hulbert worked temporarily for 59 days on the water and sewer crew until that position could also be permanently filled according to the bargaining agreement. Looking at the substance of the parties' relationship, each position was a temporary employment relationship lasting less than 67 days. See ISD No. 621, 268 N.W.2d at 414 (instructing courts "to look at the substance" of the employment relationship). Accordingly, under the statutory exception for temporary employees, Hulbert was not a public employee. See id. (legislature intended to exclude employees hired temporarily to fill position for less than statutory minimum time).

The local and amicus curiae, American Federation of State, County and Municipal Employees, Councils 6 and 14, argue that great mischief will be created by an interpretation allowing an employer to move a temporary employee from one temporary position to another without cumulating the work days toward a single 67-day limitation. They cite Minn. Stat. § 179A.02, subd. 14 (2) (Supp. 1997) as support. This provision creates an exception to the temporary employee exception, and includes as a public employee:

(2) An employee hired for a position under clause (f)(1) [the temporary employee exception] if that same position has already been filled under clause (f)(1) in the same calendar year and the cumulative number of days worked in that same position by all employees exceeds 67 calendar days in that year.

Id. Rather than supporting the commissioner's interpretation, this provision supports the PUC's interpretation.

We presume the legislature intends that the entire statute be effective. See Minn. Stat. § 645.17 (2) (1996). The exception to the exception protects against the very danger that the local uses to support its interpretation of subd. 14(f)(1). If an employer hires multiple employees for less than 67 days to fill the same position, subd. 14(2) presumes that the position is not temporary and accordingly an employee filling a position "already * * * filled under clause (f)(1)" is a public employee. The danger of employers circumventing the statute to avoid including public employees in a bargaining unit by hiring "temporary employees" to fill what is a permanent position is prohibited by subd. 14 (2).

That danger is not presented by the facts of this case. Here, relator hired a temporary employee for less than 67 days to fill a permanent position until it could be filled permanently by a public employee. If the legislature intended subdivision 14(f)(1) to be interpreted to avoid the very danger specifically addressed by subdivision 14(2), then subdivision 14(2) would be unnecessary. See Minn. Stat. § 645.17(2) (legislature intends entire statute be effective). These facts do not support a presumption that the PUC was attempting to circumvent hiring a public employee to fill permanent positions in this case.

Nor does the record support the interpretation urged by amici councils 6 and 14. They argue that the PUC created a new permanent position and under subdivision 14(2) Hulbert became a public employee when he was hired to fill the position that had already been temporarily filled under (f)(1). Hulbert was not "an employee hired for a position * * * already filled under clause (f)(1)"; he was the temporary employee filling the position under (f)(1). [1]


[1] All parties rely on previous decisions of the commissioner of the BMS to support their positions; however, none of the decisions provided address the same fact situation presented here. Relator failed to provide this court with copies of the unpublished decisions it cites. While BMS decisions may be obtained at a cost of 25 cents per page, they are not widely available at law libraries or online. Although no appellate rule requires a party to provide copies of authorities not readily or inexpensively accessible, failure to provide copies has the practical effect of hampering the court's review of a party's arguments. Cf. Minn. Stat. § 480A.08, subd. 3 (1996) (party citing unpublished appellate decisions in brief must provide copies); Truesdale v. Friedman, 267 Minn. 402, 404, 127 N.W.2d 277, 279 (1964) (appellant "has the duty to see that the appellate court is presented with * * * all matters necessary for consideration of the questions presented").