International Union, United Auto., Aerospace and Agr. Implement Workers of America, UAW-Technical Office, Professional Dept. v. City of Sterling Heights

• Decision Date: 18 May 1989
• Docket Number: UAW-TECHNICAL,Docket No. 102338
• Citation: 176 Mich.App. 123,439 N.W.2d 310
• Parties: INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA,OFFICE, PROFESSIONAL DEPARTMENT, Petitioner-Appellee, v. CITY OF STERLING HEIGHTS, Respondent-Appellant. 176 Mich.App. 123, 439 N.W.2d 310
• Court: Court of Appeal of Michigan — District of US

Page 310

439 N.W.2d 310

INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND

AGRICULTURAL IMPLEMENT WORKERS OF AMERICA,

UAW-TECHNICAL OFFICE, PROFESSIONAL

DEPARTMENT, Petitioner-Appellee, v. CITY OF STERLING HEIGHTS, Respondent-Appellant.

Docket No. 102338.

176 Mich.App. 123, 439 N.W.2d 310

Court of Appeals of Michigan.

Submitted Aug. 16, 1988.

Decided March 21, 1989.

Released for Publication May 18, 1989.

[176 MICHAPP 124] Jordan Rossen, Gen. Counsel, and Nancy Schiffer, Associate Gen. Counsel, Detroit, for petitioner-appellee.

Riley & Roumell by Stanley C. Moore, III, and Amy E. Newberg, Detroit, for respondent-appellant.

Before DOCTOROFF, P.J., and WAHLS and BROWN, ^* JJ.

PER CURIAM.

Respondent City of Sterling Heights (Sterling Heights) appeals as of right from an order of the Michigan Employment Relations Commission (MERC) directing Sterling Heights to restore Robert Gulley to the position of finance director and reimburse him for all wages lost as a result of his termination in violation of Sec. 10(1)(c) of the Public Employment Relations Act, M.C.L. Sec. 423.210(1)(c); M.S.A. Sec. 17.455(10)(1)(c), which prohibits [176 MICHAPP 125] discrimination in hiring, terms, or other conditions of employment in order to encourage or discourage membership in a labor organization. We affirm.

Gulley was appointed finance director for Sterling Heights in January, 1976. On June 16, 1986, while on extended sick leave, Gulley was notified of his nonreappointment. The International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW-Technical Office, Professional Department (UAW) filed an unfair labor practice charge on behalf of Gulley against Sterling Heights, alleging that Gulley was not reappointed because of his participation in lawful organizational activity under M.C.L. Sec. 423.209; M.S.A. Sec. 17.455(9).

In July, 1985, Gulley engaged in organizing activity among administrative employees. The UAW was eventually elected as bargaining representative for residual supervisory city employees. Sterling Heights challenged the inclusion of certain positions in the residual supervisory bargaining unit, including the position of finance director. In UAW v. Sterling Heights, 163 Mich.App. 8, 14, 413 N.W.2d 716 (1987), this Court held that the finance director, an executive employee, should be excluded from the residual supervisory bargaining unit.

In this appeal, Sterling Heights argues that PERA does not protect executive employees and, therefore, this Court's prior finding that the position of finance director is executive mandates reversal of the MERC decision and dismissal of the unfair labor practice charge arising out of Gulley's non-reappointment. We disagree.

The definition of public employee contained in PERA does not exclude a supervisor or an executive. M.C.L. Sec. 423.202; M.S.A. Sec. 17.455(2) defines "public employee":

[176 MICHAPP 126] "No person holding a position by appointment or employment in the government of the state of Michigan, or in the government of any 1 or more of the political subdivisions thereof, or in the public school service, or in any public or special district, or in the service of any authority, commission, or board, or in any other branch of the public service, hereinafter called a 'public employee,' shall strike."

Our finding that Gulley was an executive and, therefore, should have been excluded from the residual supervisory bargaining unit did not strip Gulley of the protections afforded by PERA. See Hillsdale Community Schools v. Labor Mediation Bd., 24 Mich.App. 36, 179 N.W.2d 661 (1970), lv. den., 384 Mich. 779 (1970); Dearborn School Dist. v. Labor Mediation Bd., 22 Mich.App. 222, 177 N.W.2d 196 (1970). As explained 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 (1981), lv. den., 413 Mich. 859 (1982):

"Under the definition contained in MCL 423.2(e); MSA 17.454(2)(e), the term 'employee' does not include 'any individual employed as an executive or supervisor'. However, we note that this definition does not apply to public employees, which have been statutorily designated in MCL 723.202; MSA 17.455(2). Thus, since the definition of 'public employee' includes all persons in the service of the state (including executives or supervisors), the rights granted in MCL 423.209; MSA 17.455(9) apply to all such employees. The statute provides:

" 'It shall be lawful for public employees to organize together or to form, join or assist in labor organizations, to engage in lawful concerted activities for the purpose of collective negotiation or bargaining or other mutual aid and protection or to negotiate or bargain collectively with their public employers through representatives of their own free choice.'

[176 MICHAPP 127] "The executive exclusion, as applied to public employees, is thus based upon the Commission's power to delineate appropriate bargaining units. As noted in Dearborn School Dist v Labor Mediation Board, 22 Mich App 222, 228; 177 NW2d 196 (1970), MCL 423.9(e); MSA 17.454(10.4) '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.' "

Sterling Heights points out that MERC has declined to follow Detroit Bd. of Ed., supra, construing the statement quoted as dicta. Instead, MERC has analogized to federal cases construing the National Labor Relations Act. The NLRA, however, specifically excludes "supervisors" from its definition of "employee," 29 U.S.C. 152(3), as does the act governing labor relations between the federal government and federal government employees, 5 U.S.C. 7103(a)(2). In contrast to the federal statutes and in contrast to the definition of employee contained in M.C.L. Sec. 423.2(e); M.S.A. 17.454(2)(e), the definition of public employee under PERA does not contain an exclusion for executive or supervisory employees. The statutory language compels a conclusion that the Legislature did not intend to except executive and supervisory employees from PERA coverage.

We hold that Gulley was a public employee under M.C.L. Sec. 423.202; M.S.A. Sec. 17.455(2), entitled to participation in lawful organizational activity under M.C.L. Sec. 423.209; M.S.A. Sec. 17.455(9), without interference or restraint or coercion by Sterling Heights, M.C.L. Sec. 423.210(1)(a); M.S.A. Sec. 17.455(10)(1)(a), and entitled to be free from discrimination in regard to hiring, terms, or other conditions of employment in order to encourage or discourage membership in [176 MICHAPP 128] a labor organization, M.C.L. Sec. 423.210(1)(c); M.S.A. Sec. 17.455(10)(1)(c).

Sterling Heights also challenges MERC's determination that the decision not to reappoint Gulley was discriminatory under M.C.L. Sec. 423.210(1)(c); M.S.A. Sec. 17.455(10)(1)(c). When reviewing a MERC decision, this Court determines whether the decision is authorized by law and whether the commission's findings are supported by competent, material, and substantial evidence on the whole record. Const. 1963, art. 6, Sec. 28; M.C.L. Sec. 423.216(e); M.S.A. Sec. 17.455(16)(e); MESPA v. Evart Public Schools, 125 Mich.App. 71, 73, 336 N.W.2d 235 (1983), lv. den., 417 Mich. 1100.32 (1983).

In evaluating the UAW's claim that Sterling Heights' decision not to reappoint Gulley was motivated by antiunion animus in violation of M.C.L. Sec. 423.210(1)(c); M.S.A. Sec. 14.455(10)(1)(c), MERC applied the standard of proof adopted by this Court in Evart Public Schools, supra, p. 74, 336 N.W.2d 235.

"[W]here it is alleged that a discharge is motivated by antiunion animus the burden is on the party making the claim to demonstrate that protected conduct was a motivating or substantial factor in the decision of the employer to discharge the employee. Once this showing is established, the burden then shifts to...