In the months leading up to the ill-fated vaccine-or-test mandate from OSHA, in effort to keep their employees and customers safer, many employers jumped on the opportunity to impose a mandate on employees to either test or get vaccinated.  OSHA was aware of unionized employers’ need to bargain the impacts of the mandate, but still imposed hard deadlines on the requirements of the mandate (which was later found to be in excess of the agency’s powers by the U.S. Supreme Court).  As a result, many employers and unions were forced to abbreviate their impact bargaining in order to have their policies ready for implementation at the time of the government deadline.

One of the employers who led the way on vaccine mandates in Minnesota was Hennepin County, who, according to the union’s complaint in Hennepin County Sheriff’s Deputies Association and Law Enforcement Labor Services, Inc. v. County of Hennepin, required its employees to be vaccinated against COVID-19 by April 4, 2022, or be terminated.

Following the notice to bargaining units of the proposed change, both plaintiffs demanded negotiation over the impacts of the County policy and met with County representatives to do so.  Unfortunately, in the words of the plaintiffs, the “impact bargaining was not successful.”  Following negotiation, the unions filed grievances over the County’s “unilateral implementation” of the policy, and met to seek resolution of their grievances.  The County denied both grievances and the parties proceeded to the arbitration selection process.  However, in light of the fact that the grievance arbitration process would not be completed by the time the policy is to be implemented, the unions filed unfair labor practice charges against the County in district court, and sought declaratory relief.

The unions take an interesting approach in this matter, and we eagerly await the County’s response to the charges.  As we’ve discussed in the past, and in our latest presentation at the winter MPELRA conference, the traditional steps for impact bargaining are as follows: announce change to affected employee groups; allow for impact bargaining; negotiate to impasse; and then implement the changes.  In its complaint, the unions agree that the parties have negotiated the County’s policy to impasse, thus allowing the County to implement its policy.  This should be the end of the process.

However, in Minnesota, the courts have a very checkered past with determining what needs to be bargained and what constitutes sufficient bargaining of terms and conditions of employment.  Furthermore, employers only have an obligation to meet and negotiate in good faith with the exclusive representative of its employees, but that “obligation does not compel the public employer or its representative to agree to a proposal or require the making of a concession,” per PELRA.

With the Union already conceding that the County has negotiated with the unit and those negotiations were unsuccessful, and not making an argument that the County has negotiated in bad faith, one wonders how either a court or an arbitrator could find that the County did not meet its obligations under PELRA.

As much as employers wish to avoid unfair labor practice charges from their employee groups, sometimes they are a necessary step in determining what rights employers have with regard to the implementation of policy.  We will keep our eyes on the developments in this case and look forward to the court’s guidance as to how changes must be negotiated in the future.  If you, or your organization, need assistance with the implementation of policies or defense of the implementation of your policies, contact Wiley Reber Law, for unfair labor practice experience that works.