Opinion
No. C1-96-2466.
Filed May 13, 1997.
Appeal from the Bureau of Mediation Services.
Daniel R. Wachtler, Mark J. Ayotte, Briggs and Morgan, P.A., (for Respondent).
Kathryn F. Brown, (for Respondent).
Christina L. Clark, (for Relator).
Considered and decided by Lansing, Presiding Judge, Short, Judge, and Klaphake, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1996).
UNPUBLISHED OPINION
In this appeal from a Bureau of Mediation Services unit determination excluding two professors from the outstate instructional bargaining unit because of their managerial status, we find that there is substantial evidence in the record to support the Bureau's ruling, and we affirm.
FACTS
The University of Minnesota-Crookston (University) employs a total of 100 full-time, part-time, and adjunct faculty members. The Chancellor oversees the administration of the Crookston Campus, which comprises seven separate academic units with both divisions and programs. The seven Division Heads/Directors for the academic units report directly to the Vice-Chancellor. Unlike the other University of Minnesota campuses, the Crookston Campus does not have any Deans or Associate Deans situated between the Division Heads and the Vice-Chancellor.
In early 1996 the Crookston faculty petitioned the Bureau of Mediation Services (Bureau) to determine whether they would join the outstate instructional bargaining unit. The University Education Association (Union) and the University disputed whether Marsha Odom, the Head of the Technical Studies Division, and Robert Smith, the Director of the Management Division, should be included in the bargaining unit.
The Bureau held an evidentiary hearing on the managerial and supervisory functions of the two positions. The Bureau's unit determination order excluded Odom and Smith from the bargaining unit based on their managerial status. The order also concluded that Odom and Smith were not supervisory employees because they did not have sufficient opportunity to exercise independent judgment.
The Union filed a request for reconsideration of the unit determination. The Bureau affirmed its determination, and by writ of certiorari, the Union now challenges the Bureau's determination that the Division Head and Division Director are managerial employees excluded from the outstate instructional bargaining unit. The University urges that the determination that the two employees are managerial should be affirmed, but challenges the Bureau's ruling that the employees are not supervisory.
DECISION
The scope of this court's review of the Bureau's ruling is limited to determining whether the Bureau's findings, inferences, conclusions, and decisions are supported by evidence in the record, unaffected by error of law, and not arbitrary or capricious. Scott v. Public Employment Relations Bd. , 461 N.W.2d 503, 504 (Minn.App. 1990), review denied (Minn. Dec. 20, 1990). This court may not retry facts or make credibility determinations when reviewing by writ of certiorari. Senior v. City of Edina , 547 N.W.2d 411, 416 (Minn.App. 1996).
I
The Public Employment Labor Relations Act (PELRA) governs the issue of unit determinations at Minnesota's public universities. Minn. Stat. § 179A.11 (1996). The statute defines 13 bargaining units for University of Minnesota employees. Unit 9, the "outstate instructional unit," may properly include "all instructional employees with the rank of professor, associate professor, assistant professor, including research associate or instructor, including research fellow, located at the Duluth, * * * Morris, Crookston, or Waseca campuses." Minn. Stat. § 179A.11, subd. 1(9). The statute provides that "[a]ll units shall exclude managerial * * * employees" and "[s]upervisory employees shall only be assigned to unit 13" (supervisory employees unit). Minn. Stat. § 179A.11, subd. 1.
The Bureau applied the following definition of "managerial employees," which is not disputed by the parties:
"Managerial" means those positions having accountability for determining, securing, and allocating human, financial, and other resources needed to accomplish objectives. Higher level positions within this category are also accountable for determining overall objectives, priorities and policies as well as handling significant and involved relationships with government leadership in the procurement of resources. Incumbents of managerial positions customarily and regularly exercise discretionary powers.
The Union argues that the record lacks substantial evidence supporting the Bureau's decision to exclude Odom and Smith as managerial employees. We disagree. In addition to the testimony of Odom and Smith, the evidence included testimony by Crookston's Chancellor and Vice-Chancellor describing Odom's and Smith's accountability in determining, securing, and allocating human and financial resources, as well as the exercise of their discretionary powers. The testimony established that Odom and Smith make faculty hiring decisions within their respective academic units, make work assignments and supervise faculty work, approve or disapprove requests for a leave of absence, and make curriculum adjustments and class schedule changes. The testimony also established that Odom and Smith are involved with determining faculty salaries and annual merit pay increases, as well as developing a budget for their division. On this record we find that the Bureau did not err when it determined that Odom and Smith were managerial employees, excluded from the bargaining unit.
The Union argues that even though Odom and Smith may be involved with these duties, the record does not establish that they are accountable for these duties. The Union points to testimony indicating that Odom's and Smith's decisions are "routinely and regularly reviewed by the Vice-Chancellor" and sometimes "reversed, vetoed, modified, or otherwise changed." But the statute contemplates varying degrees of accountability. Even though the Vice-Chancellor has the authority to overrule Odom's and Smith's decisions in some cases, this does not lead us to conclude that Odom and Smith fail to satisfy the criteria for a "managerial employee." Accountability, although not defined by statute, must be given its ordinary meaning. See Minn. Stat. § 645.08(1) (1996); Arlandson v. Humphrey , 224 Minn. 49, 55, 27 N.W.2d 819, 823 (1947). An accountable individual is "answerable" for particular duties. American Heritage Dictionary 12 (3rd ed. 1992). The testimony demonstrates that Odom's and Smith's positions require "accountability" sufficient to establish managerial status as required by the Bureau's definition.
The Union's final argument is that a 1981 Bureau decision that included positions "extremely similar" to the disputed positions at the Crookston Campus in the bargaining unit requires the Bureau to include Odom and Smith in the bargaining unit. In re Petitions For Certification of Exclusive Representative, BMS Docket No. 80-PR-835-A (May 22, 1981) ("Twin Cities"). The Twin Cities ruling included three Department Heads and Chairs in the bargaining unit because they "[were] indistinguishable from their faculty colleagues except insofar as they [had] been designated the official employer contact person within the department." Id. at 10. The Bureau, in its ruling on request for reconsideration, declined to view the Twin Cities ruling as precedential because of differences in "the size of the campuses, together with the relatively flat organizational structure of the Crookston Campus * * *." We view the cases as distinguishable because, unlike the three Twin Cities Heads and Chairs, the record amply demonstrated that Odom and Smith exercised unilateral authority and had significantly more managerial responsibility than "funneling" information from the administration to the division or program.
For these reasons we affirm the Bureau's determination excluding Odom and Smith from the outstate instructional unit based on their managerial status. Because either managerial or supervisory status operates as an exclusion from the outstate instructional unit, it is unnecessary to consider the alternative argument that Odom and Smith are supervisory employees.