United Steelworkers of America, AFL-CIO-CLC v. City of Frankfort

• Decision Date: 05 November 1986
• Docket Number: Docket No. 79593,P,AFL-CIO-CL
• Citation: 395 N.W.2d 318,123 L.R.R.M. (BNA) 3094,153 Mich.App. 352
• Parties: UNITED STEELWORKERS OF AMERICA,etitioner-Appellee, v. CITY OF FRANKFORT, Respondent-Appellant. 153 Mich.App. 352, 395 N.W.2d 318, 123 L.R.R.M. (BNA) 3094
• Court: Court of Appeal of Michigan — District of US

Page 318

395 N.W.2d 318

UNITED STEELWORKERS OF AMERICA, AFL-CIO-CLC, Petitioner-Appellee, v. CITY OF FRANKFORT, Respondent-Appellant.

Docket No. 79593.

153 Mich.App. 352, 395 N.W.2d 318, 123 L.R.R.M. (BNA) 3094

Court of Appeals of Michigan.

Submitted Feb. 11, 1985.

Decided July 21, 1986.

Released for Publication Nov. 5, 1986.

[153 MICHAPP 354] Kim Arthur Siegfried, Allen Park, for petitioner-appellee.

Joan Swartz McKay, Frankfort, for respondent-appellant.

Clancy, Nantz, Wood, Hoffius, Rankin & Cooper by Jack R. Clary and John H. Gretzinger, Grand Rapids, amicus curiae.

Before HOLBROOK, P.J., and ALLEN and THOMAS, ^* JJ.

ALLEN, Judge.

The facts of this case are sufficiently set forth in the concurring opinion, and will not be repeated herein. Because Margaret Sanders spent the greater share of her employment time as a secretary and only served as a city assessor on a part-time basis, we agree with the Michigan Employment Relations Commission's order including the city accessor position in the collective bargaining unit. Accordingly, we affirm.

However, had Margaret Sanders been a full-time city assessor, we would not hesitate "to rule as a [153 MICHAPP 355] matter of law", that 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 (PERA). M.C.L. Sec. 423.9(e); M.S.A. Sec. 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".

Affirmed.

THOMAS, Judge (concurring).

This action arises from a petition filed with the Michigan Employment Relations Commission (MERC) requesting an election in the bargaining unit composed of two employees of appellant City of Frankfort (City). MERC determined the bargaining unit should include one employee, a secretary/part-time assessor. The City appeals as of right.

On August 15, 1983, appellee United Steelworkers of America (Union) filed a petition for an election in a bargaining unit composed of "all secretaries and full/part-time assessors". The proposed unit included two employees, a secretary/[153 MICHAPP 356] part-time assessor and the secretary to the city superintendent. The Union already represented the nonsupervisory employees employed by the City in the department of public works, and sought to add the unrepresented office clerical employees to its existing bargaining unit.

The City took the position that the superintendent's secretary should be excluded as a confidential employee, and the secretary/part-time assessor should be excluded as an executive employee. MERC excluded the superintendent's secretary from the bargaining unit. The Union does not appeal this ruling.

The second employee, Margaret Sanders, was employed both as a secretary for the city clerk and as city assessor. She is paid on an hourly basis for 35 hours per week for her secretarial work. In addition, Sanders was appointed as city assessor. This was a part-time position with the work to be done outside Sanders's seven-hour, five-day secretarial work week. However, during particular times of the year when new assessments and tax bills were prepared, Sanders performed some of her assessor's duties during her clerical time. As city assessor, only the city council had the authority to discharge Sanders or supervise her work. Sanders's work as assessor consisted of the statutory duties of the office--assessing real and personal property, preparation of the assessment and tax roles, serving as secretary to the Board of Review, and representing the City before the Tax Tribunal.

MERC determined that Sanders was properly included in the bargaining unit and ordered an election:

"With regard to the secretary-assessor, we find no basis for departing from our recent decision in [153 MICHAPP 357] Berlin Township, [1983 MERC Lab Op 1054]. The job duties of the assessor in the instant case are similar to the assessor in the Berlin case, and the fact that the assessor herein reports directly to the council, rather than to the superintendent, does not change the nature of the job duties. Also, the fact that the assessor is an appointed position, rather than being hired through other means, is not significant, since we have held that the fact of appointment does not affect employee status. City of Burton, 1976 MERC Labor Op 555, 558; Brownstown Township, 1970 MERC Lab Op 726, 729. Accordingly, we conclude that the secretary-assessor is a public employee and eligible to be represented in the unit sought by the Union."

Under the public employment relations act (PERA), M.C.L. Sec. 423.201 et seq. ; M.S.A. Sec. 17.455(1) et seq., public employees are granted the right to organize together to bargain collectively with their employer and freely choose a bargaining representative. M.C.L. Sec. 423.209; M.S.A. Sec. 17.455(9). M.C.L. Sec. 423.211; M.S.A. Sec. 17.455(11) provides that "[r]epresentatives designated or selected for purposes of collective bargaining by the majority of employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the public employees in such units for the purposes of collective bargaining * * *." Under M.C.L. Sec. 423.213; M.S.A. Sec. 17.455(13), the "unit appropriate" is to be determined by MERC as provided in M.C.L. Sec. 423.9e; M.S.A. Sec. 17.454(10.4), which states:

"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 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. [153 MICHAPP 358] 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.)

In reviewing MERC's bargaining-unit determination, this Court must determine if MERC's decision is contrary to law, and if not, whether supported by competent, material, and substantial evidence on the whole record. Const.1963, art. 6, Sec. 28; M.C.L. Sec. 423.23(2)(e); M.S.A. Sec. 17.454(25)(2)(e); Regents of the University of Michigan v. Employment Relations Comm, 389 Mich. 96, 101-103, 204 N.W.2d 218 (1973).

On appeal, the City argues that under the home rule cities act, M.C.L. Sec. 117.1 et seq.; M.S.A. Sec. 5.2071 et seq., and Const.1963, art. 7, Sec. 22, the city council has the right to control the selection of its officers, including the city assessor, and the manner in which their duties are performed, and that MERC's order including the city assessor in the collective bargaining unit impermissibly conflicts with the City's power under the home rule cities act.

The courts have consistently held that PERA prevails over conflicting legislation, charters, and ordinances, and construed PERA as the dominant law regulating public employee labor relations. See Local 1383, International Ass'n of Fire Fighters, AFL-CIO v. City of Warren, 411 Mich. 642, 311 N.W.2d 702 (1981); Irons v. 61st Judicial District Court Employees, 139 Mich.App. 313, 320, 362 N.W.2d 262 (1984). In Detroit Police Officers Ass'n v. Detroit, 391 Mich. 44, 214 N.W.2d 803 (1974), the Supreme Court addressed an apparent conflict between the home rule cities act and PERA. There, the City of Detroit incorporated a retirement plan into its charter pursuant to M.C.L. Secs. 117.4i, 117.4j; [153 MICHAPP 359] M.S.A. Secs. 5.2082, 5.2083 of the home rule cities act. The city argued that the retirement plan could not be altered without voter approval. The union argued that the retirement plan was a mandatory subject for collective bargaining under PERA. The Court found that the statutes were not in conflict since the home rule cities act only requires the charter to contain a general grant of authority to maintain a retirement plan. Thus,...