Public employees in Minnesota now enjoy new protection for “concerted activities”
This Legal Briefs column, written by Education Minnesota attorneys, is one of an occasional series on legal developments that affect educators.
In 1935, President Franklin D. Roosevelt signed into law the National Labor Relations Act (NLRA), a central piece of New Deal legislation. Prior to passage in the early 20th century and the Great Depression years, harsh economic and social conditions and the de facto illegal status of unions led to labor militancy and innovative organization across the country. In partnership with a pro-worker administration and Congress, the NLRA provided uniform federal labor policy with institutionalized reform from a National Labor Relations Board that would adjudicate disputes and form policy responsive to the political status of the nation.
The law has been characterized as one of the most radical pieces of legislation ever passed in the United States. It contains collective rather than individual rights—a unique distinction in American law. The primary collective right is in what’s known as “Section 7” of the Act, guaranteeing employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Workers and unions have been filing unfair labor practice charges against employers for violating Section 7 rights since 1935, and the National Labor Relations Board and reviewing courts in that time have fleshed out what exactly the broad language in Section 7 entails.
But the NLRA does not apply to public sector workers, so it does not cover most Education Minnesota members. In Minnesota, the Public Employment Labor Relations Act (PELRA) governs workers in the public schools. And until recently, there was no Section 7 in PELRA, leaving public sector unions on uneasy footing when considering collective action to achieve their strategic goals.
The last time the Democratic-Farmer-Labor Party enjoyed a trifecta in state government in 2012, the Minnesota legislature added a Section 7 provision to PELRA as well as other reforms. PELRA’s concerted activity provision mirrors that in the NLRA, giving workers the right to engage in concerted activities for collective bargaining or other mutual aid and protection. However, since its passage, the Legislature routinely conditioned the law’s effectuation upon the funding and operation of the Public Employment Relations Board (PERB)—our state-level labor board that adjudicates disputes under PELRA. So even after it became law, for about a decade of divided state government, PELRA’s Section 7 right was not effective for most of that time. That changed again when the Democratic-Farmer-Labor Party again gained full control of state government in 2022. The historic trifecta funded the PERB and PELRA’s Section 7 became enforceable – the light turned green on protected collective action with a legal remedy. Yet, although the law around Section 7 in the private sector had been well developed since 1935, it was still not entirely clear what protections that broad language would provide in Minnesota’s public spheres with their unique working and operational conditions.
We aren’t entirely without a guide for the kind of rights this law provides. The PERB and Minnesota courts look to NLRA precedent for guidance, especially where the laws have similar language, which is precisely the case for Section 7 rights. The NLRA precedent provides clear examples. The law is simple: It seeks to protect workers who act together—not individually—to improve their lot in work and life. This policy recognized the power of spontaneous worker organization and sought to protect it broadly.
One classic Section 7 case is NLRB v. Washington Aluminum Co., involving a company that operated an aluminum fabrication facility in Baltimore, Maryland. There was no union in the shop—Section 7 rights apply to all workers in the NLRA and PELRA regardless of whether there is a union that represents the workers. One evening the night watchman was unable to start the gas furnace, which served as the shop’s primary source of heat, on a particularly cold day. Employees complained but the heat did not go on. All of the employees left work in protest and the company fired them all. Their case went all the way to the U.S. Supreme Court and Justice Hugo Black found that the activity was protected by the broad language of Section 7.* Washington Aluminum Co. is just one case of thousands that have given meaning to the right to engage in protected concerted activities for collective bargaining or mutual aid and protection. Some other examples of protected activities include:
Handing out flyers to co-workers or the public about organizing a union or supporting collective bargaining.
Picketing outside an employer’s property.
Wearing union buttons, T-shirts or other insignia in the workplace.
Coordinated bargaining with other unions.
Equal standing with management for union stewards.
Union representation in disciplinary meetings.
Employee rights to discuss with co-workers and the public wages, investigations, and other terms and conditions of employment.
Prohibitions of employers from misclassifying employees as independent contractors.
Prohibitions of employers from polling employees on union support or surveilling their Section 7 activities.
Engaging in certain political protest affecting workers.
Many of these rights are fair game in the PELRA context, yet we do not have clear precedent from the PERB and Minnesota courts. Since the law went into effect in the summer of 2023, the difficult bargaining of the 2023-2025 cycle has produced situations where local unions have escalated their activities and come up against school district interference.
The Bemidji Education Association has a pending unfair labor practice charge that will test the application of PELRA’s new Section 7. In Bemidji, teachers engaged in peaceful handbilling and informational picketing activities to get public support for their collective bargaining goals. They did these things during non-working time in a variety of non-working areas on school district property such as sidewalks adjoining buildings and building entryways. School district administration directed employees and the local union in writing to cease and desist from engaging in those activities. Engaging the public during school events and student events are superior methods of success for the union’s organizing purposes. Yet, the district’s orders chilled employees’ exercise of their protected rights. With the contract still expired and the parties still far apart in bargaining, the union filed an unfair labor practice charge to be able to resume their actions without interference or fear of discipline. In the charge, the union argues that employers cannot interfere with off-duty employees’ right to access an employer’s property to engage in protected concerted activities. Although a Beltrami County judge initially granted a temporary restraining order for the pending unfair labor practice, the judge ultimately refused to issue the order, and the charge remains pending with the PERB, a state agency with a three-member board (one member from labor, one member from management, and one neutral) appointed by the governor. On March 19, the PERB found merit to the association’s charge and issued a complaint ordering a hearing. A decision from the PERB is imminent, which will help establish the foundation of public sector labor rights for years to come.
Bemidji is not alone in their escalated activities to show they are worth more than what is currently on the bargaining table. Locals in Waconia, Elk River and elsewhere are coming up against the same employer interference, restraint and coercion in response to educator collective action. PELRA’s Section 7 and a functioning PERB gives us a clear path to fight back, but this law admittedly needs to develop by locals bringing charges. If you or your union are acting together to make things better and you experience any pushback, please contact your local union leadership or Education Minnesota Field Staff for advice on a potential unfair labor practice charge.
*Please note that any work stoppage that does not comply with the unique requirements of PELRA could be deemed an illegal strike, carrying significant consequences, including termination of participating employees and decertification of your union for two years!
