Judge hears arguments in Brainerd firefighter union lawsuit

If the five former firefighters and the union are reinstated, it would cost the city of Brainerd $578,752 each year, along with other expenses such as restructuring the fire department, training, certifications and equipment. If this happens, the city may have to increase the levy by at least 9% for 2021.

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Brainerd Fire Department’s former full-time equipment operators Mark Turner (left), Cory Zeien, Kevin Tengwall, Kurt Doree and Lance Davis are seen in a 2013 photo wearing pink T-shirts to support the fight against breast and other cancers. The Brainerd City Council restructured the fire department from a mix of full-time and paid on-call firefighters to a fully paid on-call department. Brainerd Dispatch file photo

The future of what the Brainerd Fire Department may look like and how the city’s checkbook may be impacted still remains unknown as the battle between the city and the former firefighters union continues to play out in court.

The lawsuit between the Firefighters Union Local 4725 representing the former Brainerd full-time equipment operators and the city of Brainerd has been ongoing for more than five years. A year ago the Minnesota Supreme Court ruled Brainerd violated state labor laws by restructuring the paid fire department and dissolving the firefighters union.

The Supreme Court affirmed the ruling of a Court of Appeals decision, which reversed the district court’s decision granting summary judgment in favor of Brainerd. A court grants summary judgment when it finds the facts of a case lack merit, therefore eliminating the need for a trial.

The Supreme Court’s decision stated the city engaged in unfair labor practices prohibited by two Minnesota statutes by undergoing a department reorganization resulting in the dissolution of a bargaining unit and by interfering with the existence of an employee organization, which constituted a prohibited unfair labor practice.

The firefighters union filed the lawsuit against the city in January 2016 in Crow Wing County District Court, claiming the city engaged in unfair labor practices under the Public Employment Labor Relations Act.


The result of the Supreme Court’s ruling brings the case back to Crow Wing County District Court for a judge to rule on a remedy. Attorneys for both sides made their arguments Thursday, Oct. 15, to Judge Patricia Aanes in a virtual motion hearing.

Arguments were heard and after about an hour-long hearing, Aanes ruled she would take the matter under advisement. Aanes said there was a lot of information presented and she would review the attorneys’ arguments and then compose a written decision “in due course.”

The union’s argument

Marshall Tanick, who represents the union, said they are seeking a partial summary judgment to reinstate the firefighting union and five of the former firefighters — Mark Turner, Cory Zeien, Kevin Tengwall, Kurt Doree and Lance Davis. Tanick said the city’s position was it had inherent managerial authority rights under the law to eliminate the fire department for financial reasons. He said the court rejected that argument and held the financial claims of the city were not relevant to whether it violated the power of law.

“And we know that the law was violated,” Tanick said, because of the Supreme Court ruling. “The city is now coming back again, essentially with the same argument on the merit. The city is contending now that it would be costly to reinstate the firefighter union and their members.

“We maintain, your honor, consistent with the court's decision, the financial issues here are irrelevant, and indeed insufficient. The city maintains that it would be ‘impossible’ to reinstate the firefighters union and it would not be impossible at all. In fact, the city has furnished ... calculations to the penny, as to what it would cost — $578,752 each year for the firefighters to be reinstated, along with some additional expenses for restructuring the fire department and training and other features.”

Tanick said finances are not an issue and the city may have to spend money to rectify its own wrong. Tanick argued the city should not use finances as a way “to not to fix the problem that the city created,” he said.

Tanick said the city could cut its budget or increase taxes to pay the burden.

“You could do any of those things to afford the remedy,” Tanick said. “I hear those things are not pleasant. We agree with that. Raising taxes, cutting programs, cutting the budget — those things hurt. But that’s what government does all the time. Your Honor, the question isn’t whether they can do it, it’s whether they must do it as a matter of law to rectify the wrongs here. The city shouldn’t put the cost of the burden on the victims of its own wrongdoing, which is the firefighters.


“ … The victims of the unfair labor practice ... should not be the ones who bear the cost of the city’s wrongdoing. The city made a decision. Now it has to live with that decision.”

Tanick argued the court could look at the case because it was a breach of contract, as the city and the union had a three-year contract and then the city disbanded it, leaving 27 months left. He also emphasized the point that in a collective bargaining arrangement between a public sector employer and a union, the employer can’t walk away from a contract. He said agreements are negotiated and if an agreement is not reached, it goes through the arbitration process.

“A city can't just say we no longer want to have a union. They have to continue the union relationship,” Tanick said. “Employers can’t make that decision for the employees of the union.

“The choice of whether to have a unionized firefighting force in Brainerd is not one that’s left to the city. Under the law, it’s a decision that the employees or members make and the city can’t just end the union by saying we don’t want to have a union anymore. Lastly ... the city has contended that equitable remedy here is not appropriate because damages are adequate, and there’s no adequate remedy here.”

Tanick also said this case is not just about the money for these firefighters.

“This is a career for these firefighters,” he said. “The five members of the union have been basically lifetime firefighters, it’s their career. It’s very difficult, of course, in these times or anytime, for them to find other jobs, finding firefighting services around the state without having to move and relocate their families if that union is put out of existence. ... So there’s much more than just figuring out how much money is owed to them. It’s a matter of being able to maintain and expand and continue their careers.”

The city’s argument

William Everette, representing the city, said the issue confronting the court is whether reinstatement is available as a remedy under the law dealing with unfair labor practices. He cited a case involving Robert Half International, where the Minnesota Supreme Court concluded there was no statutory language extending the right for reinstatement.

Everette pointed to the plaintiff’s attempt to turn this around in their arguments, stating, “It could be available. The Supreme Court could have followed that logic with Robert Half, but it didn’t.


It didn’t assume reinstatement was available because it hadn’t been barred. It concluded it wasn’t available because it hadn’t been legislatively provided.”

Everette said in his research in looking at unfair labor practice cases — going back to the Brown v. Board of Education case from 1955 — there is not one court case in Minnesota that exercised its equitable powers to reinstate an employee for an unfair labor practice.

“Which means that we’re not aware of a single instance since 1971,” Everette said. “The right they are seeking to enforce does not exist under the (2014 rules).”

“In this case, there’s no evidence before this court that any of the former firefighters have sought comparable employment in the fire service, but have been unable to obtain it,” Everette said. “There's no evidence that any of the former firefighters have sought but have been unable to obtain employment that is economically comparable. The reality is that this court is being asked to grant final relief based on speculation that the termination of these firefighters imposed irreparable injury when it’s our understanding that at least one of the five is gone on to a full-time firefighting position elsewhere. … At the very least, the city’s entitled to have discovery on these issues before the court decides on reinstatement. And the court is entitled to have a fully developed record before ruling on the issue.”

Everette said the plaintiff asks for the firefighters to be reinstated to status quo, but he said this presupposes the union and the firefighters still have a living contract in 2020. He said a key decision in the Minnesota Supreme Court suggests they do not have a living contract. Everette said the contract went through the end of 2017. While the contract might serve as a “very convenient measuring stick for damages,” Everette said, “It no longer serves as a source of substantive rights for the union or its members, because ... it has long since expired. Now while that outcome could seem harsh from a labor management perspective, there is a matter of setting the record straight here.”

Everette said the union had the option of placing its case before an arbitrator, but it chose to litigate the matter.

The plaintiffs are asking for reinstatement of the union, and Everette argued the reinstatement of the union was in “some sense appropriate ... but there is no evidence before the court as to what it must do effectively to bring the union back to life. After all, the Minnesota Supreme Court didn’t rule that the city could not eliminate positions of employment. It ruled that it couldn’t eliminate the union.”

Everette said the plaintiffs are overreaching by stating the count must reinstate all five members to make the union viable.


“We’re not arguing in light of the Supreme Court's decision that economics justified dispensing with five positions in the union that represent them,” Everette said. “We’re questioning whether it’s equitable in light of economics to order the reinstatement of five former employees at a cost of over half a million dollars a year going forward. And a projected 9% increase in property taxes. We’ve put forward evidence of those impacts, the veracity of which has not been questioned.”

Everette told the judge the appeals court found the city had bonafide budgetary reasons for doing what it did.

“The city did not know it was stepping on a legal rake that would hit it in the forehead when it reorganized the fire department,” Everette said. “A 9% tax increase might not sound like much to the union ... but it could be devastating to retirees and other folks on fixed incomes, who struggled to pay their property taxes now. For some, it could literally mean the difference between staying in the homes they’re in and finding new ones. It could harm the city in its effort to retain its existing tax base and businesses from moving down the road to the city of Baxter. It was proper and is proper for the city to talk about financial issues in this forum.

“ … The city is obligated to pay for its past harms that as a matter of first impression have been found to exist. This court could potentially obligate the city to pay not only for its past harms, but to pay front pay for some reasonable period of time and that would be equitable. Those liabilities can be dealt with as one-time financial issues without requiring a long term tax increase, a long term realignment of city operations and budget, and potentially harming the people that the city is obligated to serve.”


In 2010, because of a budget deficit following a decrease in both property tax values and state aid, the city began discussing restructuring the fire department, with talks to eliminate the full-time equipment operator positions.

On July 6, 2015, the Brainerd City Council approved a motion to notify the International Association of Firefighters of the city’s intent to move to a paid on-call department. Local 4725 is a local chapter within the association. The city then began negotiations with union representatives on the restructuring.

Previously in January 2015, the city and the union negotiated and signed a new three-year collective bargaining agreement covering the full-time union firefighters, but not the non-union paid on-call firefighters. Six months later, however, the city informed the union in writing of its desire to restructure the fire department to save money by eliminating the full-time positions.

The intent to move to a paid on-call department came on the heels of the loss of a service contract with Crow Wing Township, the third such loss in a year. In 2014, the city of East Gull Lake and Fort Ripley Township both terminated their service agreements with the fire department. In a letter dated Dec. 3, 2015, Maple Grove Township informed the city it would be leaving the fire service district, effective Dec. 31, 2016.


On Sept. 21, 2015, the city council approved a resolution restructuring the Brainerd Fire Department from a mix of full-time and paid on-call firefighters to a fully paid on-call department. The resolution passed on a unanimous vote.

Currently, there are two full-time firefighters with the fire department — Fire Chief Tim Holmes and Deputy Fire Chief/Fire Marshal Dave Cox.

JENNIFER KRAUS may be reached at or 218-855-5851. Follow me at on Twitter.
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