AFSCME Council 25 v. Faust Pub. Library

• Decision Date: 23 July 2015
• Docket Number: No. 318467.,318467.
• Citation: 875 N.W.2d 254,311 Mich.App. 449
• Parties: AFSCME COUNCIL 25 v. FAUST PUBLIC LIBRARY.
• Court: Court of Appeal of Michigan — District of US

311 Mich.App. 449

875 N.W.2d 254

AFSCME COUNCIL 25

v.FAUST PUBLIC LIBRARY.

No. 318467.

Court of Appeals of Michigan.

Submitted March 4, 2015, at Lansing.

Decided July 23, 2015, at 9:00 a.m.

Tere McKinney, for AFSCME Council 25.

Fausone Bohn, LLP, Northville (by Michael M. McNamara ), and Steven H. Schwartz & Associates, PLC, Farmington Hills (by Steven H. Schwartz), for the Faust Public Library.

Before: JANSEN, P.J., and METER and BECKERING, JJ.

PER CURIAM.

Respondent, the Faust Public Library (Library), appeals by right the decision and order of the Michigan Employment Relations Commission (MERC), which concluded that the position held by librarian Lisa Hausman as the head of the Library's children's services department did not qualify as a statutory supervisor and, therefore, that the challenged ballot cast by Hausman in a union representation election would be opened and counted with the election results. The Library also challenges MERC's refusal 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 of the Library, the adult services and circulation departments, are also nonsupervisory positions such that the challenged ballots cast by the employees holding those two positions should also be opened and counted. We affirm in part, vacate in part, and remand for further proceedings consistent with this opinion.

As explained in Macomb Co. v. AFSCME Council 25, 494 Mich. 65, 77, 833 N.W.2d 225 (2013) :

In a case on appeal from the MERC, the MERC's factual findings are conclusive if supported by competent, material, and substantial evidence on the whole record. Legal questions, which include questions of statutory interpretation and questions of contract interpretation, are reviewed de novo. As a result, an administrative agency's legal rulings are set aside if they are in violation of the constitution or a statute, or affected by a substantial and material error of law. [Quotation marks and citations omitted.]

We first address and reject the Library's contention that there was not competent, material, and substantial evidence to support MERC's finding that the head of the children's services department is a nonsupervisory position.

MERC's classification of an employee as supervisory or nonsupervisory involves findings of fact. See Police Officers Ass'n of Mich. v. Fraternal Order of Police, Montcalm Co. Lodge No. 149, 235 Mich.App. 580, 586, 599 N.W.2d 504 (1999). "Findings of fact by [MERC] are conclusive if supported by competent, material, and substantial evidence on the whole record. This Court will reverse a MERC determination of an appropriate bargaining unit only upon a clear showing of error." Police Officers Ass'n of Mich. v. Grosse Pointe Farms, 197 Mich.App. 730, 735, 496 N.W.2d 794 (1993) (citation omitted).

"The Legislature has segregated supervisory and executive personnel from other personnel for purposes of collective bargaining." Mich. Ed. Ass'n v. Clare–Gladwin Intermediate Sch. Dist., 153 Mich.App. 792, 795, 396 N.W.2d 538 (1986) ; see also Grosse Pointe Farms, 197 Mich.App. at 733, 496 N.W.2d 794 ("Generally, supervisory employees are not included in the same bargaining unit as nonsupervisory personnel."). Because the term is not defined in the public employment relations act (PERA),¹ this Court has used the federal statutory definition of "supervisor," which refers to one 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, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment." [ Clare–Gladwin Intermediate Sch. Dist., 153 Mich.App. at 797, 396 N.W.2d 538, quoting 29 USC 152(11).]

"The existence of any one of these powers, regardless of the frequency of its exercise, is sufficient to confer supervisory status on an employee, as long as the power is real, rather than theoretical." Muskegon Co. Prof. Command Ass'n v. Muskegon Co., 186 Mich.App. 365, 372, 464 N.W.2d 908 (1990). In other words, "it is not the exercise of authority, but the delegation of authority, which is indicative of the attributes of a ‘supervisor.’ " Clare–Gladwin Intermediate Sch. Dist., 153 Mich.App. at 797, 396 N.W.2d 538.

In this case, MERC concluded that the evidence showed that Hausman did not possess supervisory authority as the head of the children's services department. MERC found that Hausman never disciplined an employee or recommended discipline, was not involved in hiring employees, and was never told that she was expected to participate in hiring, firing, or disciplining employees. MERC found that Hausman's authority in the children's services department, including assigning work on children's programming, derived from her status as a professional librarian with a master's degree rather than from any labor-relations or human-resources authority.

We conclude that there was competent, material, and substantial evidence to support MERC's determination that Hausman's position as the head of children's services was not supervisory. Hausman testified that she never hired or fired any employees, was never involved in disciplining any employees as the head of children's services, and never recommended any firings or suspensions. Hausman was not involved in interviewing or hiring a new page who was assigned to her in the children's department; the page was instead hired by the library director, who did not consult Hausman. Although the hours of two employees were increased after Hausman had recommended that action, there is no evidence that Hausman's recommendations were adopted without independent investigation. Hausman's work as one of several rotating "Supervisors in Charge" of the Library did not establish that she was a supervisor, given that employees other than department heads also served as the rotating supervisor in charge, including an administrative assistant, a librarian, and the head of automation. Hausman acknowledged that her performance evaluations of employees in the children's department were used to determine whether an employee received a merit increase when there was no wage freeze in effect, but the director determined what award or raise was warranted and never asked Hausman what raises should be given. Hausman testified that she was not consulted about raises for children's department associates when across-the-board raises were given in 2006. Although Hausman did 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." When children's department employees requested time off, they submitted a form to Hausman, who would check the schedule to make sure the goal of public service was being met and then pass the form on to the library director.

Sheila Collins, the library director, testified that she helped to write a description of the position of department head applicable to all three departments, and this description was approved by the library board on March 14, 2012. According to Collins, a department head runs the department, handles personnel and budgetary issues, manages the scheduling of employees, approves or disapproves requests for time off, and signs employees' time sheets. Collins's description of a department head's powers could reasonably be viewed as merely theoretical given that, as Collins acknowledged, there have been no hiring or disciplinary terminations or suspensions since she became the director. Collins testified that Hausman had provided an e-mail concerning the number of employees needed for a 40–hour versus a 55–hour week, and that the library board chose a 40–hour week and adopted the department heads' recommendations as best it could within budgetary constraints. But Collins did not testify that the library board adopted Hausman's recommendation without independent investigation. We acknowledge that Collins testified that the rotating supervisors in charge have the authority to approve or disapprove an employee's request to leave early and to deal with an employee or patron problem immediately. However, as explained previously, employees other than department heads serve as supervisor in charge on a rotating basis. Collins stated that performance evaluations could affect whether an employee receives a raise if the budget allowed a raise. But as discussed, Hausman testified that she had never been asked what raises should be given and that she was not consulted about raises that were provided in 2006.

We conclude that there was 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. We discern no basis to upset MERC's determination that Hausman lacked supervisory status in her role as the head of the children's services department. MERC did not err by determining that Hausman held a nonsupervisory position at the Library.

The Library next argues that MERC erred by rejecting its alternative contention that the three department head positions must be collectively deemed either supervisory or nonsupervisory, and that the Library should have been permitted to present evidence establishing that the duties and authority of the three department head positions are effectively identical. We agree with the Library to the extent that it contends it should have been permitted to present evidence concerning the adult services and circulation department head positions in the hearing before the...