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### STATE OF MICHIGAN

COURT OF APPEALS

FAUST PUBLIC LIBRARY,

Respondent-Appellant, FOR PUBLICATION July 23, 2015

9:00 a.m.

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

Charging Party-Appellee.

Before: J ANSEN , P.J., and M ETER and B ECKERING , JJ.

P ER C URIAM

.

Respondent Faust Public Library ( “Library”) appeals by right t he decision and order of the Michigan Employment Relations Commission (“MERC”), concludi ng 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 chal lenged 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 Librar y to pursue an alternative claim that if the head of the children’s services department is a non supervisory 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 compet ent, material, a nd substantial evidence on the whole record. Legal questions, which include questions of statutory interpretation and questions of contract inter pretation, 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 a ffected by a substantial and mat erial error of law.

We first address and reject the Library’s contention that ther e was not competent, material, and substantial evidence to support the MERC’s findin g that the head of the children’s services department is a nonsupervisory position.-2- The MERC’s classification of an employee as supervisory or non supervisory involves findings of fact. See Police Officers Ass’n of Mich v Frater nal Order of Police, Montcalm Co Lodge No 149 , 235 Mich App 580, 586; 599 NW2d 504 (1999). “Findings of fac t by the [MERC] are conclusive if support ed by competent, material, and substantial evidence on the
whole record. This Court will r everse 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 pers onnel 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 incl uded in the same bargaining unit as nonsupervisory personnel.”). Because the term is not d efined in the PERA, 1 this Court has utilized a federal statutorydefinition of “supervisor” as referring to one who has the authority

“to hire, transfer, suspend, lay off, recall, promote, discharg e, assign, reward, or discipline other employees, or responsibility to direct them, o r to adjust their grievances, or effectively to recommend such action, if in conn ection with the foregoing the exercise of such authority is not of a merely rou tine 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 fr equency 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 ser vices 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 e xpected 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 pro gramming, derived from her status as a professional librarian with a master’s degree rathe r than from any labor-relations or human-resources authority.

We conclude that there was competent, material, and substantia l evidence to support the MERC’s determination that Hausman’s position as the head of chi ldren’s services was not supervisory. Hausman testified that she never hired or fired a ny employees, was never involved in disciplining any employees as the head of children’s service s, and never recommended any firings or suspensions. Hausman was not involved in interviewi ng or hiring a ne w page who was

1 Public Employee Relations Act, MCL 423.201 et seq.-3- assigned to her in the children’s department; the page was inst ead hired by the Library Director without consulting Hausman. Although the hours of two employee s were increased after Hausman had recommended such an action, there is no evidence th at Hausman’s recommendations were adopted without independent investigation. Hausman’s work as one of several rotating “supervisors i n 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 t he children’s department were used to determine whether an emp loyee 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 sh e was not consulted about raises for children’s department associates when across-the-board rais es were given in 2006. Although Hausman did set schedules for children’s department employees b efore her layoff in 2009, she testified that upon her reinstatement in 2012 the other childre n’s department employees had already established a work schedule, and Hausman merely “plugge d” 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 t o the Library Director.

Sheila Collins, the Library Director, testified that she helpe d 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, ma nages the scheduling of employees, approves or disapproves requests for time off, and s igns employees’ time sheets. Collins’s description of a department head’s powers could reaso nably be viewed as merely theoretical given that, as Coll ins acknowledged, there have bee n no hiring or disciplinary terminations or suspensions since she became the Director. Col lins testified that Hausman had provided an e-mail concerning th e number of employees needed fo r a 40-hour versus a 55-hour week, and that the Library Board chose a 40-hour week and adopt ed 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 inde pendent investigation. We acknowledge that Colli ns testified that the rotating supervisor s 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. How ever, as explained previously, employees other than department heads serve as supervisor in charge on a rotating ba sis. Collins stated that performance evaluations could affect whether an employee receiv es a raise if the budget allowed a raise. But as discussed, Hausman testified that she had neve r been asked what raises should be given and that she was not consul ted about raises that were pro vided in 2006.

We conclude that there was competent, material, and substantia l evidence that Hausman did not have authority to hire, transfer, suspend, lay off, rec all, promote, discharge, assign, reward, or discipline other employees or to effectively recomme nd such action. We discern no basis to upset the MERC’s determination that Hausman lacked sup ervisory status in her role as the head of the children’s services department. The MERC did n ot err by determining that Hausman held a nonsupervisory po sition at the Library.-4- The Library next argues that the MERC erred by rejecting its a lternative contention that the three department head positions must be deemed either super visory or nonsupervisory in tandem, and that the Library should have been permitted to pres ent 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 p ositions in the hearing before the administrative law judge (“ALJ”).

The Library consistently maint ained throughout the administrat ive 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 h eads should be found not to be sup ervisors 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 concludin g that one department head was not a supervisor but that the ot her two department heads were s upervisors.

The ALJ rejected the Library’s argument on the ground that the re was no triable issue or material dispute of fact concerni ng the supervisory status of t he heads of the adult services and circulation departments, given t hat both the Library and Chargi ng Party AFSCME Council 25 (“the Union”) asserted that those two positions were supervisor y. The Library was therefore precluded from presenting evidence concerning the duties and re sponsibilities of the heads of the
adult services and circulation de partments. The Library presen ted an offer of proof concerning the proposed testimony of Marilyn Kwik and Diane Mehl, the resp ective heads of the adult services and circulation departments, indicating their respecti ve responsibilities in their departments. Following the hearing before the ALJ, the MERC fo und that the head of children’s services was the only position with respect to which supervisor y status was in di spute and that no evidence was presented to establish that the heads of adult ser vices 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 conte ntion. The Union and the Library agreed before the election that Kwik, Mehl, and Hausman could v ote by challenged ballot and that the MERC would determine their eligibility to vote, if nec essary. 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 eligib le voter. Mich Admin Code, R 42 3.148(2) provides:

An authorized observer, the com mission, or the election agent, before the time the voter’s ballot is cast, o r before the time the ballots are counted in the case of a mail ballot election, may challenge for good cause the eli gibility 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 sh all 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.]-5- Prior to the election, the MERC declared that all three depart ment heads would “vote by challenged ballot” and that “[t]he inclusion or exclusion of th e [votes of the three department heads] will be determined by the Commission if their ballots ar e determinative of the results of the election.” Because these three challenged ballots would ha ve 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 fa ct concerning the supervisory status of the adult services and circulation depart ment head positions because both the Library and the Union agreed that those positions were supe rvisory. In so ruling, however, the ALJ ignored that the Library’s alternative argument dispute d the supervisory status of all three department heads. In gen eral, parties are permitted to p lead inconsistent claims and facts in the alternative. See MCR 2.111(A)(2); HJ Tucker & Assoc, Inc v Al lied Chucker & Engineering

Co , 234 Mich App 550, 561; 595 NW2d 176 (1999). Section 75 of th e Administrative Procedures Act, 2 MCL 24.275, provides in relevant part that “[i]n a contested c ase the rules of evidence as applied in a nonjury civil case in circuit court sh all be followed as far as practicable, but an agency may admit and give probative effect to evidence o f a type commonly relied upon by reasonably prudent men in the conduct of their affairs.” Th e ALJ identified no principled
basis to exclude evidence offe red in support of the Library’s a lternative argument that the three department head positions must be viewed in tandem as either al l supervisory or all nonsupervisory. The Library sough t to admit the testimony of K wik and Mehl, the respective heads of the adult services and circulation departments, to est ablish that their duties were effectively identical to Hausman’s duties, such that any determ ination that Hausman’s position
as the head of the children’s se rvices department is nonsupervi sory 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 thr ee department heads in tandem, we agree with its position that the MERC erred by precluding itfrom 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 ap propriate 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 barg aining units, the [MERC’s] prim ary objective is to constitute the largest unit which, under the ci rcumstances 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 wit h this objective, the [MERC’s] policy is to avoid fractionalization or multiplicity o f bargaining units.

2 MCL 24.201 et seq

.-6- The touchstone of an appropriate bargaining unit is a common in terest of all its members in the terms and conditions of their employment that wa rrants inclusion in a single bargaining unit and the choosing of a bargaining ag ent. This Court abides by the [MERC’s] policy to constitute the largest bargain ing unit compatible with the effectuation of the [Public Employment Rela tions Act]. [ Id. at 373-374 (citations omitted).]

“A community of interests include s, among other considerations, similarities in duties, skills, working conditions, job classifi cations, 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 propo sed evidence with regard
to the heads of adult services and circulation because it faile d 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 appropria te 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 alternat ive argument, that the pertinent de partment heads are nonsupervisor y, then excluding those department heads from the presumptive bargaining unit may resul t in fracti onalization.

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 the refore vacate the portion of the MERC’s decision that refused to consider the Library’s alternat ive 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 r emand should first consider,
consistent with Mich Admin Code R 423.148(2), whether Kwik’s an d Mehl’s ballots are
determinative of the election in light of Hausman’s now-counted vote. If the two challenged ballots would be determinative, t hen the parties may present ev idence concerning the duties and authority of Kwik and Mehl, the heads of adult services and cir culation, respectively. After considering the evidence presented, the MERC shall determine wh ether the heads of adult services and circulation departments are nonsupervisory and the refore included within the appropriate bargaining unit such t hat their ballots should be o pened and counted. We note, however, that whether those posit ions are supervisory should ri se and fall on the facts pertinent to each position. In other words, the MERC should make determi nations as to each position and should not be bound by the Library’s assertion that the positio ns are to be considered in conjunction with each other and with Hausman. The MERC is to c onsider the merits of those two challenged ballots and decide whether each challenged indiv idual is an eligible voter. See Mich Admin Code R 423.148(2). The Library has not cited any au thority, nor have we found any, indicating that the three pos itions at issue must rise and fall collectively, rather than on the individual facts of each position. Indeed, if the positions ar e 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 w hether she was a supervisor,-7- because she was not a librarian. This issue is not preserved. “Generally, an issue is not properly preserved if it is not raised be fore, 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 e ven 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 is sue 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 wa s not a decision that Mehl was excluded from the unit for that reason. Indeed, the MERC decli ned to reach the issue of Mehl’s
inclusion in the unit for the er roneous reason that Mehl’s supe rvisory status was supposedly undisputed. The issue was not de cided below and is not preserv ed. 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, a nd the record is not sufficiently developed to address whether she is properly included in the ba rgaining 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 i s not appropriate or feasible at this juncture.

Lastly, we note that the MERC’s decision contains inconsistentorders. The MERC concluded that Hausman’s position as head of children’s service s did not qualify as a statutory supervisor and, therefore, her challenged ballot should be open ed and counted with the election results. Yet, the MERC attached to its decision and order a do cument 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, t he appropriate remedy based on the MERC’s reasoning was, as the MERC itself initially stated, to o pen and count Hausman’s ballot. Accordingly, we vacate the porti on of the MERC’s order directin g that a new election be held.

Affirmed in part, vacated in par t, and remanded for further pr oceedings consistent with this opinion. We do not retain ju risdiction. 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