*1 AMERICA, v CITY OF OF AFL-CIO-CLC UNITED STEELWORKERS FRANKFORT 1985, 11, Lansing. February Decided 79593. Submitted at Docket No. July America, afl-cio-clc, petition filed a The United Steelworkers request- Michigan Employment Relations Commission with the ing composed unit of all secretaries an election in a part-time employed by full- and assessors employees, proposed unit included two a secre- Frankfort. assessor, part-time city tary, and the secre- who was also superintendent. already represented tary The union department nonsupervisory of the sought unrepresented office and it to add the works existing bargaining employees to its unit. Merc ruled clerical superintendent’s secretary was excluded from the employee, the secre- unit as a confidential but tary part-time could be included in the assessor portion city appealed as of from that unit. The part-time ruling relating secretary of the assessor. Held: part-time city spent greater secretary secretary. time as a She therefore share of her properly bargaining unit. included merc in the had she been a full-time she would have been an purposes public employment executive for relations act excluded, and would have been as a matter of from the

bargaining unit on the basis of her executive status. Affirmed. J., concurred. He noted that the executive prohibit employees

exclusion does not in executive organizing, only prevents bargain- but their inclusion in a ing consisting employees, of nonexecutive and that particular whether a has executive status is References 2d, seq., seq. Am Jur Labor and Labor Relations 1764 et 1787 et §§ Index under Labor See annotations ALR3d/4th Quick and Labor Unions. Steelworkers United v Frankfort which must be made merc on a a factual determination case, that, case-by-case in this merc did not basis. He concluded ruling part-time err in that the assessor was not an executive being included in the and was therefore not barred from *2 bargaining unit. union’s Opinion the Court Employees Bargaining — — Public Collective Labor Relations Employees — — — Em- Excluded Executives Public Units ployment Relations Act. performing responsible for A full-time who is charter, pursuant city assessor to statutes and the duties of purposes public employment executive for of the relations is an may in a act and not be included collective (MCL 423.9e; representing city employees other MSA 17.454[10.4]). Employment Employees — — 2. Labor Relations Public Public Relations Act. / act, public employment employees, relations under the Public organize together bargain collectively have the employer freely an exclusive collective their and to choose (MCL423.209; 17.455[9]). bargaining representative MSA Bargaining Employees — — Collective 3. Labor Relations Public Employment — — Public Em- Units Relations Commission Appeal. ployment —Act Relations Michigan Employment shall deter- Relations Commission appropriate bargaining unit as will best mine the collective bargaining; right of secure to the their collective determination, Appeals, reviewing in such a must Court of Michigan Employment such decision determine whether not, contrary if Relations Commission is supported by competent, on material and substantial evidence (Const 1963, 423.9e, record art the whole § 423.23[2][e]; 17.454[10.4],17.4B4[25][2][e]). MSA Employment — — 4. Labor Relations Act Stat- Public Relations utes. conSicting public employment prevails relations act over charters, municipal regarding public legislation, and ordinances powers; regarded employers’ law it must be as the dominant (MCL regulating public employment 423.201 labor relations seq.). seq.; et et 17.45B[1] Opinion Court Bargaining Employees — — Collective 5. Labor Relations Public — Employees — — Em- Public Excluded Executives Units ployment Act. Relations purposes Municipal employees, for who are executives are not as a matter of law relations unit; rather, prevented joining a collective shall, Michigan Employment Relations Commission on a case- basis, mem- by-case whether such executives can be determine unit; making such a determi- of a collective bers nation, Michigan Employment Relations Commission shall authority, as the extent of the executives’ consider factors such interchangeability scope responsibilities, of their executives, the number of execu- their functions with other (MCL organization tive relative to the size 423.9e; 17.454[10.4]). petitioner. Siegfried, for Kim Arthur respondent. McKay, Joan Swartz for Curiae: Amicus *3 Cooper

Clary, Wood, HofRus, Nantz, Rankin & Gretzinger), Clary (by Michigan John H. for the Jack R. and Municipal League. Holbrook, Jr., P.J., and and

Before: D. E. Allen Thomas,* M.E. JJ. sufficiently J. The facts of this case are

Allen, concurring opinion, not be set forth will Margaret spent repeated herein. Because Sanders greater share of her time as a secretary assessor on a served agree Michigan part-time basis, we ployment Relations Commission’s order with the Em-

including position bargain- assessor in the collective ing Accordingly, unit. affirm. we Margaret full-time had Sanders been a city assessor, ”to rule as a we would not hesitate * judge, sitting Appeals by assign- Recorder’s court on the Court of ment. v Frankfort United Steelworkers M.E. J. Thomas, law,” matter of that she should "be excluded from opinion, unit In a a as an executive.” our

person occupying position a full-time responsible performing statutory and charter for an

duties of assessor is "executive” public employment § under 9e of the relations act. 17.454(10.4). 423.9(e); position in MCL city government No intimately is more related to policy-making Anticipated than the assessor’s. rev- largely enues are based on the assessments of real personal property made the assessor’s upon turn, office. the revenues become the base budget which a made. is Accordingly, disagree Twp, we with Berlin Op 1054, MERC Lab extent it stands statutory for a rule that the exercise of the duties of an assessor will not make an pera. executive under In situations where the position position, is a full-time we believe statutory person- duties, exercise of such ally performed performed by others under the supervision does make the assessor an "executive.”

Affirmed. (concurring.) This action arises petition Michigan Employ- from a filed with the requesting ment Relations Commission an election composed in the of of two appellant City of Frankfort. Merc determined employee, unit should include one secretary/part-time appeals assessor. The right. *4 August appellee 15, 1983, On United Steelwork- (union) petition ers of America filed a for an composed election in a unit of "all full/part-time pro- secretaries and posed assessors.” The employees, secretary/ unit included two a 153 Thomas, J. city secretary part-time the and assessor already represented superintendent. the union city employed by employees nonsupervisory sought department to add works, and the the unrepresented its clerical office existing bargaining unit. superinten- position city took secretary a confiden- excluded as should be

dent’s secretary/part-time employee, and tial employee. as an executive excluded should be secretary superintendent’s excluded Merc not The union does unit. ruling. appeal this Margaret employee, Sanders, was

The second secretary employed for the clerk both hourly paid for basis She is on as assessor. per thirty-five work. for her secretarial week hours asses- addition, as Sanders part-time position the work to sor. This was five-day seven-hour, sec- outside Sanders’ be done during particular work week. retarial year and tax assessments new times of the when performed prepared, some Sanders bills were during time. As her clerical duties her assessor’s city ity had the author- council supervise discharge her work. Sanders of the statu- consisted work as assessor Sanders’ tory per- assessing real duties of the office— preparation property, of the assessment sonal serving secretary roles, to the board tax review, representing the Tax before Tribunal. that Sanders was

Merc determined and ordered an included election: we find no regard secretary-assessor, With decision departing from our recent for

basis *5 Steelworkers United v 357 Frankfort by Thomas, J. Concurrence Township, Berlin Op MERC Lab [1983 1054]. job duties of the assessor in the instant case are case, similar to the assessor in the Berlin and the reports fact that the assessor directly herein to the council, superintendent, rather than to the does change Also, not job the nature of the duties. fact rather not that the assessor position, is being through means, than hired other is significant, since we have held that the fact of appointment employee does not affect status. Burton, 555, Op 1976 MERC Labor Browns Township, Op town 1970 MERC Lab Accordingly, we conclude that the secretary-asses public sor eligible is a repre to be sought sented in the unit by the Union. Under the public relations 17.455(1) seq.; MCL 423.201 et et seq., public MSA are employees granted right to organize to- gether to bargain collectively their employer and freely choose a bargaining representative. 17.455(9). 423.209; MCL MSA 423.211; MCL MSA 17.455(11) provides "[Representatives desig- nated or purposes selected for of collective bar- gaining by majority in a unit employees appropriate for such purposes, shall be the exclu- sive representatives of all employees such units for the purposes of collective bargaining . . . .” Under 423.213; 17.455(13), MCL "unit appropriate” tois be determined as by merc provided in 423,9e; 17.454(10.4), which states: commission, after consultation with the

parties, shall determine such a bargaining unit will best secure their bargaining. collective employees The unit shall be either the employer plant of 1 in 1 or business state, enterprise or holding within this not executive unit, supervisory positions, plant or a craft or a unit, any or a subdivision of foregoing units. E.M. by dispute employees involved group If employer or identified recognized certification, contract, past practice, may the commission bargaining, for collective [Emphasis adopt unit. added.] bargaining-unit determina- reviewing merc’s *6 tion, if merc’s decision must determine this Court not, supported if to is contrary material, evidence competent, substantial by 1963, 6, MCL 28; art record. Const on the whole § the 17.454(25)(2)(e); Regents of 423.23(2)(e); MSA Relations Employment v Michigan University Comm, 101-103; 204 218 96, NW2d 389 Mich (1973). under the home argues the that appeal, city

On MSA 5.2071 et seq.; MCL 117.1 et rule cities 7, §22, 1963, the council seq., and Const art officers, of its the selection has the to control assessor, and the manner the including merc’s and that performed, their duties are which collective including order conflicts with impermissibly under the home rule cities act. power city’s pera have held that consistently The courts charters, conflicting legislation, prevails over pera ordinances, the dominant and construed as regulating public employee labor relations. law Fight- of Fire See Local International Ass’n ers, Warren, 411 Mich 642; 311 City AFL-CIO v v Judicial District Irons 61st (1981); NW2d 702 313, 320; Court 362 Employees, 139 Ass’n v (1984). In Detroit Police Officers 262 NW2d Detroit, (1974), NW2d apparent addressed conflict Supreme Court pera. There, home cities between the rule act plan retirement incorporated of Detroit 117.4Í, 117.4j; to MCL pursuant into its charter 1986] United Steelworkers v Frankfort . M. E. 5.2082, 5.2083 of the home rule cities act. city argued plan

The that the retirement could not approval. be altered without voter The union ar- gued plan mandatory the retirement awas subject for collective under pera. Court found the statutes were not conflict required only since the home rule cities act charter to contain a maintain a retirement general grant authority to plan. Thus, the substantive plan terms of the retirement did not have to be voter-approved through and were determined bargaining, required by

collective pera. present case, In the the home rule cities act requires appointment provide to for the election or 117.3;

of an 5.2073, and the duties of the assessor are defined requiring bargain statute. provisions signifi- under the cantly would not pera power city’s implement restrict its policies. city’s power self-govern would scope if be restricted were tial to of the assessor’s duties *7 subject bargaining. poten- to collective Such problems right do not eliminate the assessor’s bargain collectively Regents in other areas. See Michigan University Employment of of v Rela- supra, pp Comm, tions 108-109. appeal argues1

Amicus curiae on also appointed assessors, elected,2 whether are officials who effectuate state and taxation and special policies through perfor- assessment statutory mance of their duties and should be 1 granted Michigan Municipal League’s request We to file an league argues support city’s amicus curiae brief. The in of the position in this case. 2 117.3; 5.2073, Section 3 of the home rule cities MCL provides provide that each charter must for the election or appointment City of an assessor or board of assessors. The Frankfort Charter includes the assessor as one of the four officers city, along clerk-treasurer, superintendent, with the and chief police. of App 352 153 360 Mich E.M. participate right to no executives with

classified as in collective bargaining. argument, Contrary the exec- amicus curiae’s to employees prohibit in not does

utive exclusion executive their inclusion nonexecutive prevents organizing; it consisting in a employees. 423.9e; MSA MCL 17.454(10.4); 28, OSAS, v Local Detroit Bd of Ed (1981), App 247 438, 443, 2;n 308 NW2d 106 Mich (1982). Moreover, merc has 413 Mich 859 lv den adopted case-by-case approach to determine

a applies. City of the executive exclusion Dep’t Transportation Dep’t of Trans- v Detroit App portation 141, 143; Ass’n, 109 Mich Foreman’s (1982). (1981), lv den 311 NW2d employees includes of executive The definition departments” making major "policy heads discretion, if even exercise "broad who management effectuating regard only it is Rapids, policy.” Op 1979 MERC Labor of Grand Transportation Dep’t Ass’n, Foreman’s p supra, posi- hypothetical disagree majority’s

I performing person that, as a matter of a tion statutory must of a duties always unit as an from a be excluded applied exclusion, as The executive executive. public employees, power is based on merc’s appropriate bargaining Dearborn units. delineate Bd, 22 Mediation School Dist v Labor (1970). making 222, 228; 177 such NW2d determination, merc must determine employees secure to the unit "as will best bargaining.” 423.9e; of collective 17.454(10.4). doing, I so should believe merc, as the consider numerous factors such *8 scope employee’s authority, of re- extent of the sponsibility, interchangeability functions United Steelworkers v Frankfort executives, with other and the number of execu- organiza- tive tion. See relative to the size of the

Dep’t Transportation Ass’n, Foreman’s supra, p Detroit Bd of OSAS, Ed v Local supra, p Accordingly, particular whether a employee has executive status is a factual case-by- determination which must be made on a case basis. determining

Here, that Sanders should be sought by included in the union, Twp, merc relied on its decision in Berlin supra. city argues Twp that Berlin is distin- guishable because that case the township assessor, assist su- perintendent, reporting directly rather than to the present council as in the case. Merc found job that Sanders’ duties were similar to those of Twp case, assessor in the Berlin and the fact reports directly that Sanders council, superintendent, change rather than the did not job the nature of those duties. It cannot be said relying that merc erred as a matter of law in on Twp. its decision in Berlin fact that she reports directly to council is one of determining several factors to be considered in whether Sanders has executive status.

My hypotheti- views on the executive status of a having cal full-time stated, been I concur in the conclusion that merc’s decision was supported by competent, material, and substantial spent evidence. The facts show that Sanders majority working secretary. of her time As degree decision-making of her great intrinsically discretion is not so as to connect city’s policy making. her with the The assessor’s what determining property discretion is limited to property taxed, is to be taxed, the classification of to be and the Thus, method of valuation. *9 E.M. Thomas, J. money may to be the amount of influence city, how not determine but does received spent. Further, discre- assessor’s be much will taxing within the made decision tion parameters limited is Thus, Sanders while of the statutes. executive-type responsibilities, in view has some majority is secretar- her work the fact that her in the included ial, I believe merc bargaining unit.