Beginning July 2020, the Minnesota Public Employment Relations Board (PERB) began accepting unfair labor practice charges.  Until now, it was mostly an arena for unions to file unfair labor practice charges, only to withdraw them later.  The thing many employer representatives feared was only serving as a sounding board for union complaints.

But on March 15, the PERB issued a complaint and notice of hearing based on the unfair labor practice charge of the Service Employees International Union (SEIU) against Minnesota Management and Budget (MMB).  This will give us all a chance to see the largest public employer in the state navigate the waters of the Board created by the state of Minnesota itself.

The issue to be decided is one dating back several years to when direct support professionals were given the opportunity to organize for collective bargaining.  In 2014, SEIU was certified as the exclusive representative of the direct support professionals under PELRA.

In October 2020, the Minnesota Legislature passed a bonding bill that provided for an 8.4% temporary rate increase for direct support services, and required that providers who received the rate increase must “use at least 80 percent of the additional revenue to increase wages, salaries, and benefits for direct support professionals” and any associated increases in employment taxes.

While the decision to increase rates by 8.4% in response to the COVID-19 pandemic appears generous, the SEIU was not as appreciative as one might think.  The union argued that it, as the exclusive representative, had the right and obligation to negotiate any increases to bargaining unit members’ compensation.  However, MMB argued that “collective bargaining is inconsistent with the Legislature’s decision in the 2020 Bonding Bill.”  Instead, the MMB argued that the bill was enacted to quickly respond to an emergency situation and did not contemplate bargaining or provide time to complete any sort of negotiations.

In its complaint, the PERB found that there was no language in the bonding bill to exempt the MMB from bargaining, and that the need to distribute funds quickly was not compatible with the duty to bargain under PELRA.  The Board set the complaint for hearing, and gave MMB time to respond.

This appears to be a case of no good deed going unpunished.  First, it was the Minnesota legislature that revived the PERB to deal with union charges of unfair labor practices, then the legislature made a decision to grant an 8.4% increase to individual providers of healthcare services without requesting anything back as a quid pro quo.

In Minnesota, we’d been waiting years to see how the PERB would handle cases once it finally received enough funding to operate.  Now we have our chance.  Employers must be wary of what may be perceived as failing to meet their obligations to bargain.  If you, or your organization need assistance in working through unfair labor practice charges, or working with the PERB, contact the Wiley Law Office, for experience that works.