It’s Heeerrree! The PERB is Here and You Need to be Prepared!

For years, the specter of the Minnesota Public Employee Relations Board has hovered in the distance –ominous, yet harmless, as the Board failed to receive the funding necessary to become operational over years and years of legislative sessions.  Well, the deadline for the Board to become operational, despite its lack of funding, has passed, and without any action from the Minnesota Legislature, the PERB is now here!

For those who had blocked the possibility of the PERB from their memories, the PERB is a three-member board, made up of one union representative, one representative of public employers, and one individual representative of the public, appointed by the two other members.  The PERB is intended to serve as an appeals board for the state on matters related to unfair labor practices.

While the Board has been “inactive” for the six years since it was recreated, it has created rules for the processing of unfair labor practice appeals.  While unfair labor practice charges are typically filed by public employees and their representatives, public employers may file charges of unfair labor practices with the Board as well.  There are specific steps for all parties to take when both filing and responding to a charge of an unfair labor practice, with strict deadlines.  In addition, each charge will be assigned an investigator to look into the charge and possibly seek additional evidence from the parties, and make a determination as to whether the charge is found to have a reasonable basis in law or fact.  The Board can dismiss charges that have no reasonable basis.

Should charges survive the investigation phase of the process, they then proceed to the hearing process as detailed in PELRA.  The Board delegates the hearing a qualified hearing officer to conduct the hearing between five and 20 days after a complaint is issued by the Board.  Parties bringing charges against their counterparts must only prove their charges by a preponderance of the evidence.

If a hearing officer finds that an unfair labor practice has occurred, the hearing officer has the ability to order the offending party to cease and desist from the unfair labor practice, post a cease and desist notice, and order any appropriate relief to correct the harm done.  The hearing officer may even order parties to make reports to the Board from time to time to demonstrate how the offending party is complying with the hearing officer’s order.  However, the hearing officer’s order may be appealed directly to the Board.

Many wonder what standards will be utilized by the Board and its hearing officers in determining whether an unfair labor practice has occurred.  There is limited caselaw in Minnesota regarding unfair labor practices, and definitely not enough to cover the various events that can occur in the workplace that may be in violation of the unfair labor practice statute.  While such decisions will not be controlling for the Board, parties may wish to look to the decisions of the National Labor Relations Board, as there are many similarities between the state and federal labor laws.

We are venturing into territory many public employer representatives in Minnesota have yet to deal with in their careers.  We have yet to see how the entire process will play out from beginning to end.  We, at the Wiley Law Office, have been preparing for this change in anticipation of the law finally taking effect.  If you, or your organization, need help navigating the unfair labor practice investigation or hearing process, contact the Wiley Law Office for unfair labor practice representation that works.