Grandville Mun. Executive Ass'n v. City of Grandville
| Decision Date | 22 September 1995 |
| Docket Number | Docket No. 164131 |
| Citation | 213 Mich.App. 586,540 N.W.2d 681 |
| Parties | GRANDVILLE MUNICIPAL EXECUTIVE ASSOCIATION, Appellant/Cross-Appellee, v. CITY OF GRANDVILLE, Appellee/Cross-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Pinsky, Smith, Fayette & Hulswit (by Edward M. Smith and Pamela K. Bratt), Grand Rapids, for petitioner.
Varnum, Riddering, Schmidt & Howlett (by John Patrick White), Grand Rapids, for appellant.
Before FITZGERALD, P.J., and MacKENZIE and GLAZER *, JJ.
The Grandville Municipal Executive Association appeals as of right from a decision and order of the Michigan Employment Relations Commission dismissing its petition to form a collective bargaining unit of executive employees. The City of Grandville cross appeals. We reverse.
The Grandville Municipal Executive Association filed a petition with the MERC on August 16, 1991, seeking to represent a bargaining unit consisting of the city clerk, treasurer, assessor, police chief, and fire chief. These employees had previously been found to be executives. See Grandville Administrative Employees Ass'n. v. City of Grandville, 1991 MERCLabOp 489.
In the present case, the MERC determined that a collective bargaining unit consisting of executive employees was not appropriate because executives do not have the right to organize under the public employment relations act (PERA), M.C.L. § 423.201 et seq.; M.S.A. § 17.455(1) et seq. In reaching this conclusion, the commission relied on Governmental Accountants & Analysts Ass'n v. City of Detroit, 1969 MLMBLabOp 187, and held that public policy justified excluding executives in public employment from engaging in collective bargaining. In so doing, the commission declined to follow this Court's opinion in Muskegon Co. Professional Command Ass'n v. Muskegon Co., 186 Mich.App. 365, 464 N.W.2d 908 (1990). The commission stated that "[i]f ... the Muskegon County case was [a] determination by the Court of Appeals that executives have the right to organize, we respectfully disagree."
Judicial review of MERC decisions includes a determination whether a decision is authorized by law. Const.1963, art. 6, § 28. Decisions by the commission may be set aside on appeal if they violate the constitution or a statute or are based on a "substantial and material error of law." Muskegon Co., supra, p. 369, 464 N.W.2d 908. We reverse in this case because the MERC's decision was based on a substantial and material error of law.
One of the purposes of the PERA is to declare and protect the rights and privileges of public employees. Muskegon Co., supra, p. 369, 464 N.W.2d 908. This policy has been given effect by allowing public employees to engage in collective bargaining. Id.; M.C.L. § 423.209; M.S.A. § 17.455(9). The Legislature has delegated to the commission the power to determine appropriate units of collective bargaining as provided in § 9e of the labor mediation act (LMA), M.C.L. § 423.9e; M.S.A. § 17.454(10.4). M.C.L. § 423.213; M.S.A. § 17.455(13); Muskegon Co., supra, p. 369, 464 N.W.2d 908. Under § 9e, appropriate bargaining units are
either the employees of 1 employer employed in 1 plant or business enterprise within this state, not holding executive or supervisory positions, or a craft unit, or a plant unit, or a subdivision of any of the foregoing units. [Emphasis added.]
Unlike the LMA's definition of "employee," which excludes supervisors and executives, see M.C.L. § 423.9e; M.S.A. § 17.454(10.4), the PERA's definition of a public employee does not exclude executives and supervisors, so that the bargaining rights of public employees belong to all public employees. M.C.L. § 423.202; M.S.A. § 17.455(2); Muskegon Co., supra, p. 370, 464 N.W.2d 908.
In a line of cases beginning with Dearborn School Dist v. Labor Mediation Bd., 22 Mich. App. 222, 177 N.W.2d 196 (1970), and culminating with Muskegon Co., supra, this Court has repeatedly held that, under the PERA, the so-called "executive exclusion" of § 9e of the LMA applies to public employees only to the extent that it precludes executive public employees from being included in the same bargaining unit as nonsupervisory public employees; because the PERA applies to executive and supervisory employees, however, § 9e cannot be read as preventing them from exercising their right to collective bargaining. In Dearborn School Dist., supra, this Court held that § 9e did not prevent public school district engineers and assistant engineers who held supervisory positions from engaging in collective bargaining under the PERA. See 22 Mich.App. at 229, 177 N.W.2d 196. In Hillsdale Community Schools v. Labor Mediation Bd., 24 Mich.App. 36, 41, 179 N.W.2d 661 (1970), this Court again held that supervisory personnel of a public school district were entitled by the PERA to organize for collective bargaining purposes, and that § 9e did not extinguish that right. In Detroit Bd. of Ed. v. Local 28, Organization of School Administrators & Supervisors, AFL-CIO, 106 Mich.App. 438, 443, n. 2, 308 N.W.2d 247 (1982), we quoted Dearborn School Dist, stating that the § 9e executive exclusion "does not prohibit those employees engaged in executive or supervisory positions from organizing, but only that they shall not be included in a bargaining unit containing nonsupervisory employees in the same plant or business enterprise." In UAW v. Sterling Heights, 176 Mich.App. 123, 126-127, 439 N.W.2d 310 (1989), we once more held that a public employee in an executive position is entitled to participation in lawful organized activity under the PERA. Finally, in Muskegon Co., supra, this Court reversed a MERC ruling that an undersheriff, as an executive, was excluded from collective bargaining under the PERA. We held that "[r]egardless of his executive status, the undersheriff is a public employee, entitled to the rights and privileges granted under the PERA, including the right to engage in lawful organizational activity." 186 Mich.App. at 371, 464 N.W.2d 908.
Furthermore, on at least two occasions this Court has found it inappropriate to create an executive exclusion that is based on public policy. In Dearborn School Dist., supra, we stated:
Plaintiff further argues that it is against public policy to allow public...
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Grandville Mun. Executive Ass'n v. City of Grandville
...to the rights and privileges granted under the PERA, including the right to engage in lawful organizational activity." 213 Mich.App at 590, 540 N.W.2d 681. The Court specifically rejected the MERC's finding that executive employees could be excluded from collective bargaining as a matter of......