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A Better Partnership
July 29, 2015

COA: MERC erred in refusing to permit employer to pursue an alternative claim

In Faust Public Library v. AFSCME Council 25, No. 318467, the Court of Appeals found that there was competent, material, and substantial evidence to support the Michigan Employment Relations Commission’s (“MERC”) conclusion that the head of the Library’s children’s services department did not qualify as a statutory supervisor. As such, the challenged ballot cast by that employee in a union representation election would be opened and counted with the election results.  However, the Court concluded that the MERC erred in refusing to permit the Library to pursue an alternative claim that if the head of the children’s services department is a nonsupervisory position, then the heads of two other departments are also nonsupervisory positions such that the challenged ballots cast by those two employees should also be opened and counted.
The Court first addressed and rejected the Library’s contention that there was not competent, material, and substantial evidence to support the MERC’s finding that the head of the children’s services department is a nonsupervisory position.  A “supervisor” is an employee who has the authority “to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibility to direct them, or to adjust their grievances, or effectively to recommend such action.” The head of the children’s services department, Lisa Hausman, testified that she never hired or fired any employees, was never involved in disciplining any employees, and never recommended any firings or suspensions. Hausman acknowledged that her performance evaluations of employees in the children’s department were used to determine whether an employee received a merit increase, but the Director determined what award or raise was warranted and never asked Hausman what raises should be given. Although Hausman set schedules for children’s department employees before her layoff in 2009, she testified that upon her reinstatement in 2012 the other children’s department employees had already established a work schedule, and Hausman merely “plugged” herself into the “holes of that.” The Court found this and other evidence to be competent, material, and substantial evidence that Hausman did not have authority to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees or to effectively recommend such action, and upheld the MERC’s determination that Hausman held a nonsupervisory position at the Library.
The Court then concluded that the MERC committed a material and substantial error of law in refusing to permit the Library to support its alternative contention. Prior to the election, the MERC declared that all three department heads would “vote by challenged ballot” and that “[t]he inclusion or exclusion of the [votes of the three department heads] will be determined by the Commission if their ballots are determinative of the results of the election.” Because these three challenged ballots would have been decisive, given that the remaining unchallenged ballots were evenly split on whether to approve representation by the Union, the MERC was obligated by Rule 423.148(2) to determine separately whether the department heads were eligible voters. The Court further noted that the MERC’s refusal to consider the Library’s alternative claim also constituted a failure to fulfill its statutory duty to determine the appropriate bargaining unit. If the evidence shows, as the Library asserts in its alternative argument, that the pertinent department heads are nonsupervisory, then excluding those department heads from the presumptive bargaining unit may result in fractionalization, which would be inconsistent with MERC policy. 
But because the Court affirmed the MERC’s decision as to Hausman and her vote will break the existing tie, the Court directed the MERC on remand to first consider, consistent with Mich Admin Code R 423.148(2), whether the ballots of the other two heads are determinative of the election. If the two challenged ballots would be determinative, then the parties may present evidence concerning the duties and authority of the other two heads.  The Court also specified that the MERC should not be bound by the Library’s assertion that the positions are to be considered in conjunction with each other and with Hausman’s position; instead each position should be considered individually.

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