Police Officers Ass'n of Michigan v. City of Grosse Pointe Farms

• Decision Date: 12 January 1993
• Docket Number: Docket Nos. 132353,132787
• Citation: 197 Mich.App. 730,496 N.W.2d 794
• Parties: POLICE OFFICERS ASSOCIATION OF MICHIGAN, Petitioner-Appellant, v. CITY OF GROSSE POINTE FARMS, Public Employer-Appellee, and Michigan Employment Relations Commission, Intervenor-Appellee. In the Matter of CITY OF GROSSE POINTE FARMS, Public Employer-Appellant, and Police Officers Association of Michigan, Petitioner-Appellee, and Fraternal Order of Police, Intervenor.
• Court: Court of Appeal of Michigan — District of US

Page 794

496 N.W.2d 794

197 Mich.App. 730

POLICE OFFICERS ASSOCIATION OF MICHIGAN Petitioner-Appellant, v. CITY OF GROSSE POINTE FARMS, Public Employer-Appellee and Michigan Employment Relations Commission Intervenor-Appellee In the Matter of CITY OF GROSSE POINTE FARMS, Public Employer-Appellant, and Police Officers Association of Michigan, Petitioner-Appellee, and Fraternal Order of Police, Intervenor.

Docket Nos. 132353, 132787.

Court of Appeals of Michigan.

Submitted May 21, 1992, at Lansing.

Decided Sept. 1, 1992.

Approved For Publication Jan. 12, 1993, at 9:05 a.m.

Released for Publication: March 18, 1993.

Frank A. Guido, Gen. Counsel, and Stephen P. Whitaker, Asst. Gen. Counsel, Livonia, for Police Officers Ass'n of Michigan.

Dickinson, Wright, Moon, Van Dusen & Freeman by Timothy H. Howlett and Eric J. Pelton, Detroit, for City of Grosse Pointe Farms.

John A. Lyons, P.C. by Kenneth W. Zatkoff, Birmingham, for Fraternal Order of Police.

Before DOCTOROFF, C.J., and JANSEN and CORRIGAN, JJ.

PER CURIAM.

In these consolidated appeals, the Police Officers Association of Michigan (POAM) and the City of Grosse Pointe Farms appeal as of right from an August 10, 1990, decision and order concerning unit clarification entered by the Employment Relations Commission. We affirm in part and reverse in part.

The POAM first contends that the MERC erred as a matter of law in its interpretation and application of Sec. 13 of the Public Employment Relations Act, M.C.L. Sec. 423.213; M.S.A. Sec. 17.455(13). The POAM asserts that it is clear from the face of the statute that its purpose is to ensure that all employees performing fire fighting duties are deemed nonsupervisory personnel in order that they might be included in the same bargaining unit. It is the POAM's position that the MERC erred in failing to establish one bargaining unit consisting of all members of the public safety department, excluding only the public safety director. We are of the opinion that the MERC did not err in concluding that Sec. 13 of the PERA did not prohibit multiple bargaining units within the public safety department that are based on considerations other than supervisory status.

Section 13 provides as follows:

The commission shall decide in each case, to insure public employees the full benefit of their right to self-organization, to collective bargaining and otherwise to effectuate the policies of this act, the unit appropriate for the purposes of collective bargaining as provided in section 9e of Act No. 176 of the Public Acts of 1939, as amended, being section 423.9e of the Michigan Compiled Laws: Provided, That in any fire department, or any department in whole or in part engaged in, or having the responsibility of, fire fighting, no person subordinate to a fire commission, fire commissioner, safety director, or other similar administrative agency or administrator, shall be deemed to be a supervisor. [Emphasis added.]

Section 13 is clearly applicable to a public safety department in which police and fire protection functions have been combined. Additionally, M.C.L. Sec. 423.9e; M.S.A. Sec. 17.454(10.4), referred to in Sec. 13 above, provides as follows:

The commission, after consultation with the parties, shall determine such a bargaining unit as will best secure to the employees their right of collective bargaining. The unit shall be 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. If the group of employees involved in the dispute was recognized by the employer or identified by certification, contract, or past practice, as a unit for collective bargaining, the commission may adopt that unit. [Emphasis added.]

When read together, the meaning of the above two provisions is clear. Generally, supervisory employees are not included in the same bargaining unit as nonsupervisory personnel. Detroit Bd. of Ed. v. Council 25, AFSCME, 1978 MERC Lab Op 1140, 1143; Labor Council, Michigan Fraternal Order of Police v. Emmett Twp., 182 Mich.App. 516, 518, 452 N.W.2d 851 (1990). However, an exception has been created for fire fighters in M.C.L. Sec. 423.213; M.S.A. Sec. 17.455(13). Emmett Twp., p. 518, 452 N.W.2d 851. "The clear intent of the Legislature is to not exclude from a collective bargaining unit those employees who are subordinate to a director of a public safety department which is, at least in part, responsible for fire fighting, simply because those employees possess supervisory authority." Id.

Section 13 has changed the definition of supervisor for these employees so that fire fighting employees with supervisory status may be included in the same bargaining unit with nonsupervisory employees. However, there is nothing on the face of the statute that requires that bargaining units be composed of both supervisory and nonsupervisory personnel. Section 13 simply redefines "supervisor" when fire fighting employees are involved, and prevents exclusion from a bargaining unit solely on the basis of supervisory status or authority. Id.; City of Saginaw v. Saginaw Fire Fighters Ass'n, 1984 MERC Lab Op 1167, 1173; City of Marysville v. Marysville Fire Fighters Ass'n, 1980 MERC Lab Op 90, 95. "The relevant position of Section 13 does not address itself to the determination of unit as such but only precludes the Commission from finding certain classifications to be supervisory ... other reasons for noninclusion can be considered." Id.

We reject the POAM's argument that the statute requires all fire fighting employees who are not supervisors as defined in the statute to be included within the same bargaining unit. The language of the statute is clear and unambiguous, and does not require such a result. Section 13 only prohibits exclusion based solely on supervisory status or authority, and other reasons for noninclusion within a given bargaining unit can be considered. The MERC did not err in determining that Sec. 13 does not prohibit multiple bargaining units within a public safety department when such units are based on considerations other than supervisory status or authority. The statute clearly prohibits exclusion based solely on supervisory status or authority, but does not mandate the creation of bargaining units with both supervisory and nonsupervisory fire fighting personnel. The MERC did not err in interpreting the statute.

The POAM next contends that the MERC erred in concluding that, because of bargaining history and community of interest considerations, it was appropriate for the command officers to belong to a separate bargaining unit, distinct from the other nonsupervisory public safety personnel. We disagree with the POAM.

The determination of an appropriate bargaining unit is a question of fact. Muskegon Co. Professional Command Ass'n v. Muskegon Co., 186 Mich.App. 365, 374, 464 N.W.2d 908 (1990). Findings of fact by the commission are conclusive if supported by competent, material, and substantial evidence on the whole record. Id., p. 368, 464 N.W.2d 908. This Court will reverse a MERC determination of an appropriate bargaining unit only upon a clear showing of error. Id., p. 374, 464 N.W.2d 908; Emmett Twp., 182 Mich.App. p. 518, 452 N.W.2d 851.

In the present case, the MERC's determination that the command officers should remain in a separate bargaining unit represented by the Fraternal Order of Police (FOP) does not reveal a clear showing of error. Pursuant to the PERA, the commission shall determine the composition of appropriate bargaining units, M.C.L. Sec. 423.213; M.S.A. Sec. 17.455(13), in accordance with the requirements of M.C.L. Sec. 423.9e; M.S.A. Sec. 17.454(10.4). Emmett Twp., 182 Mich.App. p. 518, 452 N.W.2d 851. M.C.L. Sec. 423.9e; M.S.A....