                          STATE OF MICHIGAN

                           COURT OF APPEALS



FAUST PUBLIC LIBRARY,                                               FOR PUBLICATION
                                                                    July 23, 2015
               Respondent-Appellant,                                9:00 a.m.

v                                                                   No. 318467
                                                                    MERC
AFSCME COUNCIL 25,                                                  LC No. 12-000981

               Charging Party-Appellee.


Before: JANSEN, P.J., and METER and BECKERING, JJ.

PER CURIAM.

         Respondent Faust Public Library (“Library”) appeals by right the decision and order of
the Michigan Employment Relations Commission (“MERC”), concluding that the position held
by librarian Lisa Hausman as the head of the Library’s children’s services department did not
qualify as a statutory supervisor and, therefore, that the challenged ballot cast by Hausman in a
union representation election would be opened and counted with the election results. The
Library also challenges the MERC’s refusal to permit the Library to pursue an alternative claim
that if the head of the children’s services department is a nonsupervisory position, then the heads
of two other departments of the Library, the adult services and circulation departments, are also
nonsupervisory positions such that the challenged ballots cast by the employees holding those
two positions should also be opened and counted. We affirm in part, vacate in part, and remand
for further proceedings consistent with this opinion.

       As explained in Macomb Co v AFSCME Council 25, 494 Mich 65, 77; 833 NW2d 225
(2013) (quotation marks and citations omitted):

               In a case on appeal from the MERC, the MERC’s factual findings are
       conclusive if supported by competent, material, and substantial evidence on the
       whole record. Legal questions, which include questions of statutory interpretation
       and questions of contract interpretation, are reviewed de novo. As a result, an
       administrative agency’s legal rulings are set aside if they are in violation of the
       constitution or a statute, or affected by a substantial and material error of law.

       We first address and reject the Library’s contention that there was not competent,
material, and substantial evidence to support the MERC’s finding that the head of the children’s
services department is a nonsupervisory position.


                                                -1-
       The MERC’s classification of an employee as supervisory or nonsupervisory involves
findings of fact. See Police Officers Ass’n of Mich v Fraternal Order of Police, Montcalm Co
Lodge No 149, 235 Mich App 580, 586; 599 NW2d 504 (1999). “Findings of fact by the
[MERC] are conclusive if supported by competent, material, and substantial evidence on the
whole record. This Court will reverse a MERC determination of an appropriate bargaining unit
only upon a clear showing of error.” Grosse Pointe Farms, 197 Mich App at 735 (citations
omitted).

        “The Legislature has segregated supervisory and executive personnel from other
personnel for purposes of collective bargaining.” Mich Ed Ass’n v Clare-Gladwin Intermediate
Sch Dist, 153 Mich App 792, 795; 396 NW2d 538 (1986); see also Grosse Pointe Farms, 197
Mich App at 733 (“Generally, supervisory employees are not included in the same bargaining
unit as nonsupervisory personnel.”). Because the term is not defined in the PERA,1 this Court
has utilized a federal statutory definition of “supervisor” as referring to one who has the
authority

         “to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or
         discipline other employees, or responsibility to direct them, or to adjust their
         grievances, or effectively to recommend such action, if in connection with the
         foregoing the exercise of such authority is not of a merely routine or clerical
         nature, but requires the use of independent judgment.” [Clare-Gladwin
         Intermediate Sch Dist, 153 Mich App at 797, quoting 29 USC 152(11).]

“The existence of any one of these powers, regardless of the frequency of its exercise, is
sufficient to confer supervisory status on an employee, as long as the power is real, rather than
theoretical.” Muskegon Co, 186 Mich App at 372. In other words, “it is not the exercise of
authority, but the delegation of authority, which is indicative of the attributes of a ‘supervisor.’ ”
Clare-Gladwin Intermediate Sch Dist, 153 Mich App at 797.

        In this case, the MERC concluded that the evidence showed that Hausman did not
possess supervisory authority as the head of the children’s services department. The MERC
found that Hausman never disciplined an employee or recommended discipline, was not
involved in hiring employees, and was never told that she was expected to participate in hiring,
firing, or disciplining employees. The MERC found that Hausman’s authority in the children’s
services department, including assigning work on children’s programming, derived from her
status as a professional librarian with a master’s degree rather than from any labor-relations or
human-resources authority.

        We conclude that there was competent, material, and substantial evidence to support the
MERC’s determination that Hausman’s position as the head of children’s services was not
supervisory. Hausman testified that she never hired or fired any employees, was never involved
in disciplining any employees as the head of children’s services, and never recommended any
firings or suspensions. Hausman was not involved in interviewing or hiring a new page who was


1
    Public Employee Relations Act, MCL 423.201 et seq.


                                                 -2-
assigned to her in the children’s department; the page was instead hired by the Library Director
without consulting Hausman. Although the hours of two employees were increased after
Hausman had recommended such an action, there is no evidence that Hausman’s
recommendations were adopted without independent investigation. Hausman’s work as one of
several rotating “supervisors in charge” of the Library did not establish that she was a supervisor,
given that employees other than department heads also served as the rotating supervisor in
charge, including an administrative assistant, a librarian, and the head of automation. Hausman
acknowledged that her performance evaluations of employees in the children’s department were
used to determine whether an employee received a merit increase when there was no wage freeze
in effect, but the Director determined what award or raise was warranted and never asked
Hausman what raises should be given. Hausman testified that she was not consulted about raises
for children’s department associates when across-the-board raises were given in 2006. Although
Hausman did set schedules for children’s department employees before her layoff in 2009, she
testified that upon her reinstatement in 2012 the other children’s department employees had
already established a work schedule, and Hausman merely “plugged” herself into the “holes of
that.” When children’s department employees requested time off, they submitted a form to
Hausman, who would check the schedule to make sure the goal of public service was being met
and then pass the form on to the Library Director.

        Sheila Collins, the Library Director, testified that she helped to write a description of the
position of department head applicable to all three departments, and this description was
approved by the Library Board on March 14, 2012. According to Collins, a department head
runs the department, handles personnel and budgetary issues, manages the scheduling of
employees, approves or disapproves requests for time off, and signs employees’ time sheets.
Collins’s description of a department head’s powers could reasonably be viewed as merely
theoretical given that, as Collins acknowledged, there have been no hiring or disciplinary
terminations or suspensions since she became the Director. Collins testified that Hausman had
provided an e-mail concerning the number of employees needed for a 40-hour versus a 55-hour
week, and that the Library Board chose a 40-hour week and adopted the department heads’
recommendations as best it could within budgetary constraints. But Collins did not testify that
the Library Board adopted Hausman’s recommendation without independent investigation. We
acknowledge that Collins testified that the rotating supervisors in charge have the authority to
approve or disapprove an employee’s request to leave early and to deal with an employee or
patron problem immediately. However, as explained previously, employees other than
department heads serve as supervisor in charge on a rotating basis. Collins stated that
performance evaluations could affect whether an employee receives a raise if the budget allowed
a raise. But as discussed, Hausman testified that she had never been asked what raises should be
given and that she was not consulted about raises that were provided in 2006.

        We conclude that there was competent, material, and substantial evidence that Hausman
did not have authority to hire, transfer, suspend, lay off, recall, promote, discharge, assign,
reward, or discipline other employees or to effectively recommend such action. We discern no
basis to upset the MERC’s determination that Hausman lacked supervisory status in her role as
the head of the children’s services department. The MERC did not err by determining that
Hausman held a nonsupervisory position at the Library.



                                                -3-
        The Library next argues that the MERC erred by rejecting its alternative contention that
the three department head positions must be deemed either supervisory or nonsupervisory in
tandem, and that the Library should have been permitted to present evidence establishing that the
duties and authority of the three department head positions are effectively identical. We agree
with the Library to the extent that it contends it should have been permitted to present evidence
concerning the adult services and circulation department head positions in the hearing before the
administrative law judge (“ALJ”).

        The Library consistently maintained throughout the administrative proceedings that the
three department heads were supervisors and that their ballots should not be opened, but that in
the alternative, if any of the three department heads was determined not to be a supervisor, then
all three of the department heads should be found not to be supervisors and all three ballots
should be opened. The Library asserted that the evidence would show that all three department
heads had the same essential job duties and responsibilities in their respective departments, and
that the differences in their job descriptions were related to their specific departmental functions.
Therefore, the Library argued, there was no basis for concluding that one department head was
not a supervisor but that the other two department heads were supervisors.

        The ALJ rejected the Library’s argument on the ground that there was no triable issue or
material dispute of fact concerning the supervisory status of the heads of the adult services and
circulation departments, given that both the Library and Charging Party AFSCME Council 25
(“the Union”) asserted that those two positions were supervisory. The Library was therefore
precluded from presenting evidence concerning the duties and responsibilities of the heads of the
adult services and circulation departments. The Library presented an offer of proof concerning
the proposed testimony of Marilyn Kwik and Diane Mehl, the respective heads of the adult
services and circulation departments, indicating their respective responsibilities in their
departments. Following the hearing before the ALJ, the MERC found that the head of children’s
services was the only position with respect to which supervisory status was in dispute and that no
evidence was presented to establish that the heads of adult services and circulation were
supervisors.

        We conclude that the MERC committed a material and substantial error of law in
refusing to permit the Library to support its alternative contention. The Union and the Library
agreed before the election that Kwik, Mehl, and Hausman could vote by challenged ballot and
that the MERC would determine their eligibility to vote, if necessary. Under the MERC’s rules,
the MERC must determine the merits of any challenged ballot and decide whether the person
casting the ballot is an eligible voter. Mich Admin Code, R 423.148(2) provides:

               An authorized observer, the commission, or the election agent, before the
       time the voter’s ballot is cast, or before the time the ballots are counted in the case
       of a mail ballot election, may challenge for good cause the eligibility of any
       person to participate in the election. A person challenged as an ineligible voter
       shall be permitted to vote in secret, and the election agent shall set aside the
       ballot, with appropriate markings. If it is determined by the commission or its
       election agent that the challenged ballot, or ballots, is decisive of the result, then
       the commission shall determine the merits of any challenged ballot and decide
       whether or not the person is an eligible voter. [Emphasis added.]

                                                -4-
        Prior to the election, the MERC declared that all three department heads would “vote by
challenged ballot” and that “[t]he inclusion or exclusion of the [votes of the three department
heads] will be determined by the Commission if their ballots are determinative of the results of
the election.” Because these three challenged ballots would have been decisive, given that the
remaining unchallenged ballots were evenly split on whether to approve representation by the
Union, the MERC was obligated by Rule 423.148(2) to separately determine whether Hausman,
Mehl, and Kwik were eligible voters.

        The ALJ stated that there was no material issue of disputed fact concerning the
supervisory status of the adult services and circulation department head positions because both
the Library and the Union agreed that those positions were supervisory. In so ruling, however,
the ALJ ignored that the Library’s alternative argument disputed the supervisory status of all
three department heads. In general, parties are permitted to plead inconsistent claims and facts in
the alternative. See MCR 2.111(A)(2); HJ Tucker & Assoc, Inc v Allied Chucker & Engineering
Co, 234 Mich App 550, 561; 595 NW2d 176 (1999). Section 75 of the Administrative
Procedures Act,2 MCL 24.275, provides in relevant part that “[i]n a contested case the rules of
evidence as applied in a nonjury civil case in circuit court shall be followed as far as practicable,
but an agency may admit and give probative effect to evidence of a type commonly relied upon
by reasonably prudent men in the conduct of their affairs.” The ALJ identified no principled
basis to exclude evidence offered in support of the Library’s alternative argument that the three
department head positions must be viewed in tandem as either all supervisory or all
nonsupervisory. The Library sought to admit the testimony of Kwik and Mehl, the respective
heads of the adult services and circulation departments, to establish that their duties were
effectively identical to Hausman’s duties, such that any determination that Hausman’s position
as the head of the children’s services department is nonsupervisory should apply equally to
Kwik’s and Mehl’s positions. As discussed in more detail below, while we disagree with the
Library’s position that the MERC should have considered all three department heads in tandem,
we agree with its position that the MERC erred by precluding it from presenting evidence that
was relevant to a disputed issue, i.e., the supervisory or non-supervisory status of Kwik and
Mehl.

        The MERC’s refusal to consider the Library’s alternative claim also constituted a failure
to fulfill the MERC’s statutory duty to determine the appropriate bargaining unit. The
Legislature has delegated to the MERC the power to determine appropriate units for collective
bargaining. MCL 423.213; Muskegon Co Prof Command Ass’n v Muskegon Co, 186 Mich App
365, 369; 464 NW2d 908 (1990).

                 In designating appropriate bargaining units, the [MERC’s] primary
         objective is to constitute the largest unit which, under the circumstances of the
         case, is most compatible with the effectuation of the purposes of the law and
         includes in a single unit all common interests. Consistent with this objective, the
         [MERC’s] policy is to avoid fractionalization or multiplicity of bargaining units.



2
    MCL 24.201 et seq.


                                                 -5-
       The touchstone of an appropriate bargaining unit is a common interest of all its
       members in the terms and conditions of their employment that warrants inclusion
       in a single bargaining unit and the choosing of a bargaining agent. This Court
       abides by the [MERC’s] policy to constitute the largest bargaining unit
       compatible with the effectuation of the [Public Employment Relations Act]. [Id.
       at 373-374 (citations omitted).]

“A community of interests includes, among other considerations, similarities in duties, skills,
working conditions, job classifications, employee benefits, and the amount of interchange or
transfer of employees.” Police Officers Ass’n of Mich v Grosse Pointe Farms, 197 Mich App
730, 736; 496 NW2d 794 (1992).

        In this case, the MERC refused to consider the Library’s proposed evidence with regard
to the heads of adult services and circulation because it failed to recognize that the Library’s
alternative argument pertained to the status of those positions. In doing so, the MERC failed to
properly exercise its statutory duty to determine the appropriate bargaining unit. The MERC is
required to recognize the largest single unit that includes all common interests that warrant
inclusion in a single unit. Id. If the evidence shows, as the Library asserts in its alternative
argument, that the pertinent department heads are nonsupervisory, then excluding those
department heads from the presumptive bargaining unit may result in fractionalization.

        In sum, we find the MERC committed a substantial and material error of law in refusing
to permit the Library to advance its alternative claim. We therefore vacate the portion of the
MERC’s decision that refused to consider the Library’s alternative claim and remand for further
proceedings. Because, as discussed in detail above, we affirm the MERC’s decision as to
Hausman and her vote will break the existing tie, the MERC on remand should first consider,
consistent with Mich Admin Code R 423.148(2), whether Kwik’s and Mehl’s ballots are
determinative of the election in light of Hausman’s now-counted vote. If the two challenged
ballots would be determinative, then the parties may present evidence concerning the duties and
authority of Kwik and Mehl, the heads of adult services and circulation, respectively. After
considering the evidence presented, the MERC shall determine whether the heads of adult
services and circulation departments are nonsupervisory and therefore included within the
appropriate bargaining unit such that their ballots should be opened and counted. We note,
however, that whether those positions are supervisory should rise and fall on the facts pertinent
to each position. In other words, the MERC should make determinations as to each position and
should not be bound by the Library’s assertion that the positions are to be considered in
conjunction with each other and with Hausman. The MERC is to consider the merits of those
two challenged ballots and decide whether each challenged individual is an eligible voter. See
Mich Admin Code R 423.148(2). The Library has not cited any authority, nor have we found
any, indicating that the three positions at issue must rise and fall collectively, rather than on the
individual facts of each position. Indeed, if the positions are similar such that Kwik and Mehl
share “a common interest” in “the terms and conditions of their employment” so as to warrant
inclusion in a single bargaining unit, it would be based on the pertinent facts, not because the
Library has declared it to be so.

      With regard to Mehl, we note the Library argues that the MERC erred by ruling that
Mehl was not in the presumptive bargaining unit regardless of whether she was a supervisor,

                                                -6-
because she was not a librarian. This issue is not preserved. “Generally, an issue is not properly
preserved if it is not raised before, addressed, or decided by the circuit court or administrative
tribunal.” Polkton Charter Twp v Pellegrom, 265 Mich App 88, 95; 693 NW2d 170 (2005).
This issue was not the focus of the proceedings below; rather, it arises from a footnote in the
MERC decision, stating: “As a non-librarian, it appears that even if she had not been a
supervisor, Mehl would not have been included in the unit as it was defined by the consent
election agreement.” Despite this footnoted commentary, the issue was not decided by the
MERC. For the reasons described earlier, the MERC declined to decide the issue whether Mehl
and Kwik were included in the appropriate bargaining unit. The MERC’s observation in a
footnote that it appears that Mehl—a non-librarian—would not have been included in the
bargaining unit as defined by the consent election agreement was not a decision that Mehl was
excluded from the unit for that reason. Indeed, the MERC declined to reach the issue of Mehl’s
inclusion in the unit for the erroneous reason that Mehl’s supervisory status was supposedly
undisputed. The issue was not decided below and is not preserved. Id.

         Moreover, because we are remanding for a continued hearing for the reasons addressed
earlier, the failure to consider this issue will not result in manifest injustice. See Gen Motors
Corp v Dep’t of Treasury, 290 Mich App 355, 387; 803 NW2d 698 (2010). As discussed, no
evidence concerning Mehl’s job duties has yet been presented, and the record is not sufficiently
developed to address whether she is properly included in the bargaining unit. Because the issue
whether Mehl’s status as a non-librarian affects her inclusion in the presumptive bargaining unit
was neither litigated nor decided below, review of this issue is not appropriate or feasible at this
juncture.

        Lastly, we note that the MERC’s decision contains inconsistent orders. The MERC
concluded that Hausman’s position as head of children’s services did not qualify as a statutory
supervisor and, therefore, her challenged ballot should be opened and counted with the election
results. Yet, the MERC attached to its decision and order a document entitled “DIRECTION OF
ELECTION” ordering that an election by secret ballot be conducted among the employees
within the unit. The MERC identified no basis in its decision for ordering a new election, and
we can discern no basis for holding another election; rather, the appropriate remedy based on the
MERC’s reasoning was, as the MERC itself initially stated, to open and count Hausman’s ballot.
Accordingly, we vacate the portion of the MERC’s order directing that a new election be held.

        Affirmed in part, vacated in part, and remanded for further proceedings consistent with
this opinion. We do not retain jurisdiction. No taxable costs pursuant to MCR 7.219, a public
question having been involved.



                                                             /s/ Kathleen Jansen
                                                             /s/ Patrick M. Meter
                                                             /s/ Jane M. Beckering




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