Mecosta County Bd. of Com'rs v. Michigan Council 25, American Federation of State, County and Municipal Employees, AFL-CIO

• Decision Date: 14 March 1988
• Docket Number: D,AFL-CI,Nos. 95106,95107,s. 95106
• Parties: MECOSTA COUNTY BOARD OF COMMISSIONERS, Plaintiff-Appellant, v. MICHIGAN COUNCIL 25, AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES,efendant-Appellee. 166 Mich.App. 374, 420 N.W.2d 210, 128 L.R.R.M. (BNA) 2846
• Court: Court of Appeal of Michigan — District of US

Page 210

420 N.W.2d 210

MECOSTA COUNTY BOARD OF COMMISSIONERS, Plaintiff-Appellant, v. MICHIGAN COUNCIL 25, AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO Defendant-Appellee.

Nos. 95106, 95107.

166 Mich.App. 374, 420 N.W.2d 210, 128 L.R.R.M. (BNA) 2846

Court of Appeals of Michigan.

Submitted October 20, 1987.

Decided Feb. 16, 1988.

Released for Publication March 14, 1988.

[166 MICHAPP 376] Cohl, Salstrom, Stoker & Aseltyne, P.C. by Bonnie G. Toskey, Lansing, for Mecosta County Bd. of Com'rs.

L. Rodger Webb, P.C. by Miguel Ortiz, Detroit, for Michigan Council 25, AFSCME, AFL-CIO.

Before KELLY, P.J., and DOCTOROFF and CORDEN, ^* JJ.

DOCTOROFF, Judge.

In these two consolidated cases, the Mecosta County Board of Commissioners (board) appeals as of right from the decisions of the Michigan Employment Relations Commission that determined the appropriate collective bargaining unit for certain Mecosta County employees. We affirm in part and reverse in part.

On November 8, 1985, Michigan Council 25, American Federation of State, County and Municipal Employees, AFL-CIO (union) petitioned MERC seeking a bargaining unit of supervisory employees of the [166 MICHAPP 377] county, excluding all elected officials. The union sought to include county department heads in the proposed supervisory unit. The board requested a hearing to determine whether the positions sought to be included by the union should be considered executive or confidential and therefore excluded from collective bargaining rights. Following the parties' stipulations, six department head positions were at issue: equalization director, director of ambulance services, environmental health director, director of nurses, building maintenance supervisor, and building official.

MERC ruled that the six department heads were neither executive nor confidential employees. MERC noted that although the department heads did not possess sufficiently broad responsibility and autonomy over a department composed of a large number of employees to raise an issue as to their executive status, the record did establish that all six of the department heads possessed supervisory authority and therefore should be included in the supervisory bargaining unit. The appeal from that decision concerns only two of the six department heads.

On January 14, 1986, the board in a second case petitioned MERC for a unit clarification concerning four non-supervisory employees. The four are deputy positions to the county register of deeds, county clerk, treasurer and drain commissioner. The board contended that the four positions were executive and confidential or, in the alternative, were at least supervisory and should be included in the supervisory unit sought by the union.

MERC found that all four of the individuals were the chief deputies in their particular offices and substituted for the elected officials when they were absent, but found that fact insufficient to confer supervisory or executive status on them. MERC [166 MICHAPP 378] found no justification for removing the deputies from the nonsupervisory bargaining unit and determined that the deputies should remain as part of that unit. The two matters were consolidated for appeal.

I

The board's first claim of error is that MERC made insufficient findings of fact to support its conclusions and ignored testimony in reaching its findings.

A review of the final agency determination is limited to the record; final decisions must include findings of fact and conclusions of law. See Human Rights Party v. Michigan Corrections Comm., 76 Mich.App. 204, 256 N.W.2d 439 (1977), lv. den. 402 Mich. 906 (1978).

In this case, MERC made sufficient factual findings. In a ten-page decision, MERC recounted the testimony, found facts, stated the bases for the conclusions drawn from the facts and supported its conclusions with citations to legal authority. MERC has made an adequate record for this Court to review.

II

The board next asserts that MERC erred by concluding that the equalization director and director of ambulance services, the two remaining county department heads, were not entitled to the executive exclusion from collective bargaining.

Pursuant to Sec. 13, M.C.L. Sec. 423.213; M.S.A. Sec. 17.455(13), of the public employment relations act, the "unit appropriate" for collective bargaining purposes is to be determined by the MERC as provided in Sec. 9e of the Michigan labor mediation act, M.C.L. Sec. 423.9e; M.S.A. Sec. 17.454(10.4). Michigan Education Ass'n v. [166 MICHAPP 379] Clare-Gladwin Intermediate School Dist., 153 Mich.App. 792, 795, 396 N.W.2d 538 (1986). ¹ The determination of a collective bargaining unit is a finding of fact. Michigan Educational Support Personnel Ass'n v. Southfield Public Schools, 148 Mich.App. 714, 717, 384 N.W.2d 768 (1985). A finding of fact shall be conclusive if supported by competent, material and substantial evidence when reviewing the record as a whole, M.C.L. Sec. 423.23(2)(e); M.S.A. Sec. 17.454(25)(2)(e). Michigan Employment Relations Comm. v. Detroit Symphony Orchestra, Inc., 393 Mich. 116, 121, 223 N.W.2d 283 (1974). Substantial evidence is more than a scintilla but substantially less than a preponderance. Tocco v. Marquette Prison Warden, 123 Mich.App. 395, 402, 333 N.W.2d 295 (1983).

The executive exclusion is based upon MERC's power to delineate appropriate bargaining units. It precludes employees in executive positions from being included in a bargaining unit which consists of nonexecutive employees. UAW v. Sterling Heights, 163 Mich.App. 8, 413 N.W.2d 716 (1987). MERC has adopted a case-by-case approach for determining whether the executive exclusion applies. Detroit Dep't of Transportation v. Detroit DOT Foreman's Ass'n, 109 Mich.App. 141, 143, 311 N.W.2d 319 (1981), lv. den. 413 Mich. 902 (1982), states:

[166 MICHAPP 380] "In deciding whether a job title occupies executive status, the commission may consider several factors, such as who has primary responsibility for developing the budget, who plays a significant role in preparing departmental rules and regulations, the number of executive positions relative to the size of the organization, the degree of interchangeability of functions between the employee and his immediate superior, and the degree of participation in labor negotiations or formulation of collective-bargaining policy."

1. Equalization Director. A county board of commissioners is required to establish a department to assist it in the matter of equalization of assessments; equalization directors are appointed by the county board of commissioners itself. M.C.L. Sec. 211.34(3); M.S.A. Sec. 7.52(3). Testimony indicated that the equalization director of Mecosta County works full time under the direction and supervision of the board of commissioners and he, in turn, supervises a total of five employees: three assessors and two clerks. He is fully responsible for submitting the budget for his department to the board of commissioners. The record indicates that his primary duty is creating equity between or equalizing various entities, sixteen townships and the City of Big Rapids, in regard to tax assessments. Assessors in each of the sixteen townships are responsible to him and receive advice and counsel from him. The position of equalization director is closely connected with the county budget since assessments affect the state equalized value (SEV) of property. The role of the equalization director has a direct impact on the source of funding because his decisions on assessing and how he conducts the affairs of his office help to determine what the SEV is going to be. The SEV is critical to the county because it forms the tax base--when multiplied by [166 MICHAPP 381] the millage, the total tax dollars can be computed. Tax funding from real and personal property is one of the county's major sources of funding--slightly over fifty percent of the total budget.

In United Steelworkers of America v. Frankfort, 153 Mich.App. 352, 395 N.W.2d 318 (1986), this Court affirmed MERC's determination that the executive exclusion did not apply to a part-time city assessor. However, the Court explained:

"However, had Margaret Sanders been a full-time city assessor, we would not hesitate 'to rule as a matter of law,' that she should 'be excluded from a bargaining unit as an executive.' In our opinion, a person occupying a full-time position of assessor and responsible for performing the statutory and charter duties of city assessor is an 'executive' under Sec. 9e of the public employment relations act. MCL 423.9(e); MSA 17.454(10.4). No position in city government is more intimately related to policy-making than the assessor's. Anticipated revenues are largely based on the assessments of real and personal property made by the assessor's office. In turn, the revenues become the base upon which a city budget is made.

"Accordingly, we disagree with Berlin Twp, 1983 MERC Lab Op 1054, to the extent that it stands for a rule that the exercise of the statutory duties of an assessor will not make an employee an executive under PERA. In situations where the position is a full-time position, we believe that the exercise of such statutory duties, whether personally performed or performed by others under the supervision of the assessor, does make the assessor an 'executive.' " Id., pp. 354-355, 395 N.W.2d 318.

The equalization director in this case performs essentially the same duties as a city assessor but on a county-wide scale. We believe that the rationale articulated in Frankfort applies with equal force to a full-time county equalization director. [166 MICHAPP 382] Accordingly, we find MERC's determination that the equalization director was not an executive to be unsupported by competent, material and substantial evidence.

2. Director of Ambulance Services. MERC concluded that the director of ambulance services was neither an executive nor a confidential...