Minnesota Cities Magazine
More from Jan-Feb 2019 issue

From the Bench: Union Claims City Reorganization Was an Unfair Labor Practice

PUBLIC EMPLOYMENT

Unfair labor practice
As a cost-savings measure, the City of Brainerd adopted a resolution in 2015 that reorganized its fire department to “eliminate all fire equipment operator positions” and “utilize paid on-call firefighters for the provision of fire services.” Before the reorganization, the city’s Fire Department consisted of five full-time firefighters, who were union members, in fire equipment operator positions; a fire chief; and approximately 36 firefighters, who were not union members, in paid on-call positions. The union sued, raising four legal claims: (1) the reorganization was an unfair labor practice, in violation of the Public Employees Labor Relations Act (PELRA); (2) the city’s charter did not authorize the reorganization; (3) the reorganization violated the U.S. Constitution because it was in retaliation for protected public-employee speech; and (4) the reorganization violated the Minnesota Constitution because it was in retaliation for protected public-employee speech. The protected speech involved statements by the full-time firefighters that were critical of the restructuring and its impact on public safety. In response, the city claimed that the reorganization was an exercise of inherent managerial policy that did not violate PELRA.

The district court ultimately ruled in the city’s favor and dismissed all four claims. The Minnesota Court of Appeals reversed the district court’s decision on the first claim and held that the city committed an unfair labor practice when, in the middle of a collective-bargaining agreement, it unilaterally restructured its Fire Department to eliminate all full-time firefighter positions, an action that effectively dissolved the union. The Court of Appeals reasoned that the reorganization violated PELRA’s prohibition against interfering with the “existence or administration” of a union. The Court of Appeals remanded the case, instructing the district court to fashion an “appropriate remedy.” The Court of Appeals also affirmed the district court’s decision to dismiss the other three claims, reasoning that the city was not required to amend its charter before reorganizing its Fire Department, and that the union did not prove there was a causal connection between the protected speech and the city’s decision to reorganize. Firefighters Union Local 4725 v. City of Brainerd, N.W.2d (Minn. Ct. App. 2018). Note: The League of Minnesota Cities Insurance Trust (LMCIT) represented the city.

MUNICIPAL WATER UTILITIES

Certification of fees
Property owners Tom and Joyce Borchardt sued the City of North Branch and the North Branch Municipal Water and Light Commission, challenging a city resolution authorizing the certification of unpaid charges in the amount of $19,887.50 to the Borchardts’ property taxes. The charges were imposed to recover the city’s costs for constructing and installing a water meter on the main water lines at a manufactured park home the Borchardts owned. The city required the water meter for billing water usage. The Borchardts claimed the certification was not authorized by law or supported by substantial evidence. They argued that state law authorizes the certification of unpaid charges for water usage but not for construction costs. The Minnesota Court of Appeals upheld the certification, holding that Minnesota Statutes, section 444.075 expressly authorizes a municipality to certify to property taxes unpaid charges for the “construction,” “use,” and “availability” of “waterworks” systems, which includes water mains. The Court of Appeals also concluded that substantial evidence supported the certification, including five invoices, two past-due notices, three letters from the Borchardts objecting to the certification, a letter from the commission responding to the objections, and oral argument from the Borchardts’ attorney addressing the certification at a special session before the commission. Borchardt v. City of North Branch, No. A18-0230 (July 16, 2018) (unpublished opinion).

ORDINANCE VIOLATION

Administrative remedies
The City of Minneapolis fined Andrew Ellis $100 for failing to dispose of yard waste in compostable bags and for storing items in the area designated for garbage removal. The city had included the fine on Ellis’ utility bill, which directed him to call a specified phone number “for an explanation of the charges shown on your bill” and invited him to “notify the Utility Billing Office in writing” if he wished “to dispute any charge(s).” Ellis did not call for an explanation or send written notice to dispute the charge. Instead, Ellis sued the city in district court, seeking damages for alleged tort, constitutional, and ordinance violations. According to Ellis’ civil complaint, his neighbor was responsible for the debris. The district court dismissed the complaint for lack of subject matter jurisdiction due to Ellis’ failure to exhaust the administrative remedies available through the process for challenging the utility bill. Ellis appealed, arguing that the city never provided him with adequate notice of the administrative remedies. The Minnesota Court of Appeals ruled in the city’s favor, holding that the city provided sufficient notice of its administrative process, and that Ellis cannot bring a civil action before exhausting the available administrative remedies. Ellis v. Herberholz, No. A18-0258 (Minn. Ct. App. Sept. 10, 2018) (unpublished opinion).

CONDEMNATION

Property flooding
In October 2013, a City of Minneapolis water main ruptured and flooded several units of a residential condominium building. Liberty Mutual Insurance covered the claims of individual condominium owners, American Family Insurance covered the claim of the condominium association, and the City of Minneapolis reimbursed uninsured condominium owners. After the city denied the insurance companies’ requests for reimbursement for the payments they made to their policyholders, the companies sued, claiming in part that the flooding had resulted in a taking of their property, in violation of the Minnesota Constitution, which provides: “Private property shall not be taken, destroyed, or damaged for public use without just compensation therefor, first paid or secured.”

The district court dismissed the insurance companies’ claims, reasoning that the flooding lacked the frequency, regularity, and permanency to constitute a taking by physical invasion, and that a takings claim cannot rest solely on property damage. The insurance companies appealed, and the Minnesota Court of Appeals affirmed the district court’s decision based on different reasoning. The Court of Appeals noted that, although the Minnesota Constitution does expressly authorize a taking claim based on property damage alone, such a claim requires proof that the damage resulted from an intentional governmental act taken to achieve a public purpose. The Court of Appeals concluded that dismissal was proper because the insurance companies did not allege that the water-main rupture or the flooding resulted from the city’s intentional act toward some public purpose. American Family Ins. v. City of Minneapolis, No. A17-1962 (Minn. Ct. App. June 25, 2018) (unpublished opinion).

WORKERS' COMPENSATION

Causal connection
Laurie Roller-Dick, an employee of CentraCare Health System, was leaving work when she fell down a set of stairs, fracturing her left ankle. The stairway, which is generally not accessible to the public, has railing on both sides and nonslip treads on the steps. Roller-Dick was not using the hand rails before she fell. Instead, she was holding a plant from her desk in both hands, and her handbag was hanging from the crook of her elbow. As she was falling, she dropped the plant and caught herself on the handrail, resulting in her ankle injury. Roller-Dick applied for workers’ compensation benefits. There was no dispute about the facts relating to the fall; therefore, the only question before the workers’ compensation judge was whether Roller-Dick’s injury “arose out of ” her employment within the meaning of the Workers’ Compensation Act. Under the act, employers must compensate employees “in every case of personal injury or death of an employee arising out of and in the course of employment without regard to the question of negligence.”

The workers’ compensation judge concluded that Roller-Dick’s injury did not arise out of her employment because she failed to establish that the stairs were “more hazardous than stairs she might encounter in everyday life or that her work duties in some way increased her risk of falling as she descended them.” The Workers’ Compensation Court of Appeals (WCCA) reversed, determining that the workers’ compensation judge incorrectly applied the “increased-risk” test, by requiring Roller-Dick to demonstrate some defect or additional hazard on the stairs. The Minnesota Supreme Court affirmed the WCCA’s decision and held that, under the “increased-risk” test, an employee’s injury arises out of employment “when there is a causal connection between the injury and the employment,” including when an employee is exposed to a hazard that originates on the premises as part of the working environment. Roller-Dick v. CentraCare Health System and SFM Mutual Companies, 916 N.W.2d 373 (Minn. 2018).

Written by Susan Naughton, research attorney with the League of Minnesota Cities. Contact: snaughto@lmc.org or (651) 281-1232.

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