In the Matter of a Petition for Clarification of an Appropriate Unit Anoka-Hennepin Education Minnesota, Anoka, Minnesota, Relator, vs. Independent School District No. 11, Anoka-Hennepin, Coon Rapids, Minnesota, Respondent, Anoka-Hennepin Program Assistant Association, Anoka, Minnesota, Respondent, Bureau of Mediation Services, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

  STATE OF MINNESOTA

IN COURT OF APPEALS

A03-421

 

In the Matter of a Petition for Clarification of an Appropriate Unit

Anoka-Hennepin Education Minnesota,

Anoka, Minnesota,
Relator,
 
vs.
 
Independent School District No. 11,
Anoka-Hennepin,

Coon Rapids, Minnesota,

Respondent,
 
Anoka-Hennepin Program Assistant Association,

Anoka, Minnesota,

Respondent,

 

Bureau of Mediation Services,

Respondent.

 

Filed December 23, 2003

Affirmed; motion to strike granted in part and denied in part and

motion for attorney fees denied

Poritsky, Judge*

 

Bureau of Mediation Services

File No. 03PCL811

 

William F. Garber, Education Minnesota, 41 Sherburne Avenue, St. Paul, MN  55103 (for relator)

 

Stephen M. Knutson, Jennifer K. Anderson, Knutson, Flynn & Deans, P.A., 1155 Centre Pointe Drive, Suite 10, Mendota Heights, MN  55120; and

 

Paul H. Cady, 11299 Hanson Boulevard Northwest, Coon Rapids, MN  55433 (for respondent Independent School District No. 11, Anoka-Hennepin, Coon Rapids, Minnesota)

 

Anoka-Hennepin Program Assistant Association, Attention Jeffrey Jackson, 3200 Main Street, Suite 360, Coon Rapids, MN  55418 (respondent)

 

Mike Hatch, Attorney General, Alan I. Gilbert, Assistant Attorney General, 1100 NCL Towers, 445 Minnesota Street, St. Paul, MN  55101-2134 (for Bureau of Mediation Services)

 

            Considered and decided by Klaphake, Presiding Judge; Hudson, Judge; and Poritsky, Judge.

U N P U B L I S H E D   O P I N I O N

PORITSKY, Judge

            Relator Anoka-Hennepin Education Minnesota brought a unit-clarification petition before the Minnesota Bureau of Mediation Services (BMS), seeking a determination that registered nurses (RN) positions should be placed in a teachers' bargaining unit.  The BMS determined that RN positions, which do not require a teaching license, could not be included in a teachers' unit. Relator brings this certiorari appeal, arguing that because the job duties of RNs are substantially the same as those of licensed school nurses (LSN), whose positions are in the teachers' unit, the RN positions should also be in the teachers' unit.  We disagree and affirm the BMS.

FACTS

Relator petitioned the BMS[1] seeking a unit clarification for RNs who currently do "substantially the same job as school nurses and should be placed in the teacher unit."  Respondent Independent School District No. 11, Anoka-Hennepin (respondent) opposed the petition.

The record before the BMS comprised: (1) relator's petition for a unit clarification; (2) a reply letter from respondent ¾ referred to as an answer by the BMS; (3) a letter from the BMS requesting relator's response to respondent's answer; and (4) a letter from relator's attorney setting out the reason for the petition.  The BMS did not conduct a hearing, but concluded on the undisputed facts that because the RN positions do not require a teaching license, it is improper to include the RN positions in the teachers' unit.

Respondent filed a motion to strike relator's brief and for attorney fees.  The motion has been referred to the panel for determination.

D E C I S I O N

The decision of an administrative agency will be affirmed on appeal unless there is an error of law, the determinations are arbitrary and capricious, or the findings are unsupported by the evidence.  In re Application of N. State Power Co. for Approval of Its 1998 Res. Plan, 604 N.W.2d 386, 389 (Minn. App. 2000), review denied (Minn. Mar. 28, 2000).

The Commissioner of the BMS has the duty to determine appropriate bargaining units.  Minn. Stat. § 179 A. 04, subd. 2 (2002).  Minn. Stat. § 179 A. 03, subd. 18(1) (2002) defines "[t]eacher" in relevant part as "any public employee . . . employed by a school district . . . in a position for which the person must be licensed by the board of teaching or the commissioner of children, families, and learning." (Emphasis added.)  "Under the plain language of the relevant statutes, inclusion in the teacher bargaining unit requires licensure . . . ."  Educ. Minn.-Intermediate Dist. No. 917, Local 3904 v. Intermediate Sch. Dist. No. 917 (In re Petition for Clarification of an Appropriate Unit), 660 N.W.2d 467, 47, (Minn. App. 2003), review denied (Minn. July 15, 2003).  A person is not required to have a teaching license in order to fill a registered-nurse position; therefore registered-nurse positions are not "teachers" within the meaning of section 179 A. 03, subdivision 18. 

Here, the BMS found that "the request to move the unlicensed classification of Registered Nurse to the licensed unit of teachers would be inappropriate."  The BMS relied on Hibbing Educ. Ass'n v. Pub. Employment Relations Bd., 369 N.W.2d 527, 529 (Minn. 1985), in which the court was faced with a similar issue.  In Hibbing Educ. Ass'n, paraprofessionals challenged the board's ruling certificating them in a separate bargaining unit from the teachers.  Id. at 528-29.  The supreme court noted that neither the state board of teachers nor the state board of education required licensure for the paraprofessional positions.  Id. at 529.  The court found that because no licensure was required, the paraprofessionals should not be included in the teachers' bargaining unit, despite the fact that the paraprofessionals performed many of the same functions traditionally performed by the teachers.  Id. 

In a more recent case, we relied on Hibbing Educ. Ass'n and held that non-licensed community experts were properly excluded from the teachers' bargaining unit because they were not teachers within the statutory definition; specifically they were not required to have a teaching license.  Intermediate Sch. Dist. No. 917, 660 N.W.2d at 471-72.  Here, we conclude that the BMS did not err in its determination that the RN positions could not be included in the teacher's bargaining unit.  

Relator complains that the BMS erred by deciding the wrong issue.  The BMS viewed the issue in this case to be, "Is the Registered Nurse classification a teacher within the meaning of Minn. Stat. § 179 A. 03, subd. 18 (2002)?"  Relator maintains, "The proper issue presented by the Petition was whether the Respondent district could define licensed teacher/nurse job duties and subsequently assign exactly the same job duties to a unit of nonlicensed RN's."   Thus, relator maintains the issue was one of job duties, and not, as BMS ruled, one of licensure.

Relator's position is not persuasive.  The supreme court has held that the BMS is not to consider job duties in making determinations for teacher's bargaining units.  In Hibbing Educ. Ass'n, the court framed the issue to be whether the BMS is "required by the Public Employment Labor Relations Act to consider the job functions of employees in making bargaining unit determinations for teacher bargaining units."  369 N.W.2d 529 (citation omitted).  The court determined, "[I]t is not the function of courts to  . . . order[] PERB [now BMS] to consider job function in its determination of the appropriate bargaining unit."  Id. at 530.  It is clear that here the BMS decided the correct issue.    

Lastly, relator argues that because the BMS did not hold a hearing, there was not substantial evidence to support the decision. The BMS is not required to hold a hearing on every petition filed with it.  Minn. R. 5510.1910, subp. 4 (2001)  ("Upon receipt of a petition, the [BMS] shall hold hearings . . . as required.")  (Emphasis added.)  We conclude that in this case a hearing was not required.  The decisive facts were before the BMS, and those facts support its decision:  To fill an RN position, a person need not have a teaching license; however, for a position to be in a teaching unit, the person filling the position must have a teaching license.

Respondent's motions

Respondent has filed a motion to strike relator's brief on the ground that the brief includes matters outside the record on appeal and does not include citations to the record as required by Minn. R. Civ. App. P. 128.03.  Respondent also moved for an award of attorney fees incurred in bringing the motion. 

Respondent alleges that relator "inappropriately included affidavits and factual allegations in its Brief and Appendix which are not part of the record, are not accurate and which are irrelevant to the issue at hand."  An appellate court may not base its decision on matters outside the record on appeal and may not consider matters not produced and received in evidence below.  Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988).  The record on certiorari review consists of the documents filed with the agency.  See Minn. R. Civ. App. P. 110.01 (stating record on appeal includes papers filed in trial court, exhibits, and transcript); 115.04, subd. 1 (applying provisions of rule 110 to certiorari review and stating references to trial court shall be read as references "to the body whose decision is to be reviewed").   

Relator concedes that two affidavits that it filed are not contained in the agency file, but argues that both affidavits refer to matters in the record and were necessary to inform this court of facts that would have been revealed in a hearing.  But relator had ample opportunity to submit relevant facts to the BMS ¾ both in its initial petition and later in the letter from its attorney setting out the reasons for the petition ¾ before the agency made its ruling.  This court "will strike documents included in a party's brief that are not part of the appellate record."  Fabio v. Bellomo, 489 N.W.2d 241, 246 (Minn. App. 1992), aff'd, 504 N.W.2d 758 (Minn. 1993).  Because the affidavits were not before the BMS, the motion will be granted and the affidavits of Jeffery Jackson and William Garber are stricken.  Therefore, we will not consider those affidavits or any reference to them in the briefs. 

Respondent further asks the court to strike relator's brief in its entirety because (1) the facts and arguments based on those facts are irrelevant to the determination of the matter and (2) relator failed to cite to the record.  To the extent that relator has failed to cite to the record, such failure violates rule 128.03.  But because this failure did not interfere with our review of the record, such error is harmless.  In any event, we conclude that it is a sufficient remedy to strike the affidavits and not consider them, and insofar as respondent's motion seeks to strike relator's brief in its entirety, the motion is denied.

Lastly, respondent moves the court for attorney fees incurred in bringing the motion.  But respondent does not provide the court with sufficient information to determine the appropriate amount of fees.  Minnesota Rules of Civil Appellate Procedure require all motions for attorney fees to include sufficient documentation, generally descriptions of the work performed, hours spent on each item, and an hourly rate charged for work.[2]  Minn. R. Civ. App. P. 139.06, subd. 1 (requiring motions for fees to "include sufficient documentation to enable the appellate court to determine the appropriate amount of fees").  Consequently, relator's motion for attorney fees is denied.

Affirmed; motion to strike granted in part and denied in part and motion for fees denied.

*          Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

 

[1]          BMS is a respondent in this matter but did not participate in this appeal.

 

[2]          "The request for fees must include sufficient information to enable the appellate court to determine the appropriate amount of fees.  This generally will include specific descriptions of work performed, the number of hours spent on each item of work, the hourly rate charged for that work . . . ."   Minn. R. App. P. 139.06 1998 advisory comm. cmt.