GRAND RAPIDS EMPLOYEES INDEPENDENT UNION V CITY OF GRAND RAPIDS
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STATE OF MICHIGAN
COURT OF APPEALS
CITY OF GRAND RAPIDS,
UNPUBLISHED
July 1, 2008
Respondent-Appellant,
No. 274188
MERC
MERC Nos. C 03 C-053 and
C 03 C-054
v
GRAND RAPIDS EMPLOYEES
INDEPENDENT UNION,
Charging Party-Appellee.
GRAND RAPIDS EMPLOYEES
INDEPENDENT UNION,
Petitioner,
v
No. 284392
CITY OF GRAND RAPIDS,
Respondent.
Before: Donofrio, P.J., and Sawyer and Murphy, JJ.
PER CURIAM.
Respondent, City of Grand Rapids (city), appeals a decision and order entered by the
Michigan Employment Relations Commission (MERC) in favor of the charging party Grand
Rapids Employees Independent Union (GREIU). We affirm.
I. Background
This case concerns the job classification status of two city employees, Ruth Haner and
Christine Barfuss, and the city’s unilateral decision to reclassify them as “supervisory”
employees, which removed them from the bargaining unit for “nonsupervisory” employees that
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is represented by GREIU. The bargaining unit excludes all supervisors.1 GREIU filed unfair
labor practice charges with MERC, alleging that the city’s actions violated the public
employment relations act (PERA), MCL 423.201 et seq., and specifically MCL 423.210(1)(e).
Pursuant to § 10(1)(e), “It shall be unlawful for a public employer or an officer or agent of a
public employer . . . to refuse to bargain collectively with the representatives of its public
employees . . . .” After three days of hearings, the administrative law judge (ALJ) issued a
decision and recommended order, finding that the city failed to bargain in good faith by
unilaterally removing the positions from the bargaining unit represented by GREIU. The ALJ,
however, concluded that the disputed positions now held by Haner (formerly office assistant III,
now personnel assistant) and Barfuss (formerly right-of-way agent, now administrative analyst I)
did possess supervisory authority; therefore, it was not recommended that the two employees be
returned to the bargaining unit. Exceptions and cross-exceptions to the ALJ’s ruling were filed,
and the matter was presented to MERC for resolution.
In its decision and order, MERC ruled that PERA prohibits supervisors from being
included in a nonsupervisory bargaining unit with employees they supervise, that an employer
acts at its own peril when it moves a position that it contends is supervisory from a
nonsupervisory bargaining unit without first obtaining consent of the union or an order from
MERC, that the city indeed acted unilaterally, that the city thereby violated its duty to bargain in
good faith under § 10(1)(e), and that the evidence was insufficient to find that Haner and Barfuss
possessed supervisory authority under MERC precedent. MERC ordered the city to return the
contested positions to the bargaining unit represented by GREIU without reduction in
compensation currently paid for each position, to bargain with GREIU, upon demand, over the
terms and conditions of employment for each position, and to make GREIU whole for the loss of
dues and fees occasioned by the city’s unlawful removal of the positions from the bargaining
unit. The city appeals.
II. Analysis
A. Overview of the City’s Arguments
The city presents three arguments. First, the city contends that it did not commit unfair
labor practices when it correctly determined that the individuals in the nonsupervisory collective
bargaining unit were supervisors and unilaterally removed them from the unit without the
agreement of GREIU or a MERC order. Second, the city maintains that MERC committed a
substantial and material error of law because it abandoned the disjunctive test for the existence of
supervisory authority and applied definitions of supervisor that were inconsistent with Oakwood
Healthcare, Inc, 348 NLRB No 37 (2006). Third, and finally, the city argues that the record as a
whole does not contain competent, material, and substantial evidence to support MERC’s
findings that Haner and Barfuss are not supervisors; the ALJ correctly assessed that they were
both supervisory employees. On all arguments presented, we disagree.
1
The Association of Public Administrators of Grand Rapids (APAGR) is the exclusive
representative for supervisory city employees.
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B. Standards of Review and General Principles Governing MERC Litigation
Decisions rendered by MERC are reviewed on appeal pursuant to Const 1963, art 6, § 28
and MCL 423.216(e). Grandville Muni Executive Ass’n v Grandville, 453 Mich 428, 436; 553
NW2d 917 (1996); Oak Park Public Safety Officers Ass’n v City of Oak Park, 277 Mich App
317, 323; 745 NW2d 527 (2007). MCL 423.216(e) provides that “[t]he findings of the
commission with respect to questions of fact if supported by competent, material, and substantial
evidence on the record considered as a whole shall be conclusive.” Const 1963, art 6, § 28
provides in pertinent part:
All final decisions, findings, rulings and orders of any administrative
officer or agency existing under the constitution or by law, which are judicial or
quasi-judicial and affect private rights or licenses, shall be subject to direct review
by the courts as provided by law. This review shall include, as a minimum, the
determination whether such final decisions, findings, rulings and orders are
authorized by law; and, in cases in which a hearing is required, whether the same
are supported by competent, material and substantial evidence on the whole
record. . . . .
The evidentiary standard equates to the amount of evidence that a reasonable mind would
accept as being sufficient to support a particular conclusion. St Clair Co Ed Ass’n v St Clair Co
Intermediate School Dist, 245 Mich App 498, 512; 630 NW2d 909 (2001). It is more than a
scintilla of evidence, but can be substantially less than a preponderance of evidence. Id. at 512513. While MERC’s legal determinations may not be disturbed unless they violate statutory or
constitutional provisions or are based on substantial and material errors of law, its legal rulings
are afforded a lesser degree of deference than its factual findings because review of legal
questions remains de novo. Branch Co Bd of Comm’rs v Int’l Union, United Automobile,
Aerospace & Agricultural Implement Workers of America, UAW, 260 Mich App 189, 193; 677
NW2d 333 (2003).
“Where a statutory construction by the MERC has endured for a long time, it should be
accorded significant weight by a reviewing court. Grandville Muni, supra at 437. This Court
must hesitate to substitute a judicial judgment for MERC’s determination of the appropriate
bargaining unit, and we do so reluctantly and only upon a clear showing of error. Id. With
regard to interpreting PERA, our Supreme Court frequently looks to the construction of
analogous provisions of the National Labor Relations Act (NLRA), 29 USC 151 et seq., by the
federal courts. Id. at 436. Further, opinions by the United States Supreme Court accord great
deference to the National Labor Relations Board’s (NLRB’s) construction of the NLRA, and this
Court extends similar consideration to interpretations of PERA by MERC. Id.
In Ranta v Eaton Rapids Pub Schools Bd of Ed, 271 Mich App 261, 265-266; 721 NW2d
806 (2006), this Court made the following observations regarding PERA:
Our Supreme Court has held that PERA is “the dominant law regulating
public employee labor relations.” PERA “imposes a duty of collective bargaining
on public employers, unions, and their agents.” “Violations of § 10 of the PERA
are deemed unfair labor practices under MCL 423.216 . . . remediable by the
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[MERC].” Section 16 of PERA vests MERC with exclusive jurisdiction over
unfair labor practices. [Citations omitted; omission and alteration in original.]
Pursuant to MCL 423.215, an employer and the representative of the employees are
mandated to bargain for wages, hours, and other terms and conditions of employment, which
constitute mandatory subjects of collective bargaining. St Clair Intermediate School Dist v
Intermediate Ed Ass’n/Michigan Ed Ass’n, 458 Mich 540, 550-551; 581 NW2d 707 (1998).
C. Discussion
As indicated above, MCL 423.210(1)(e) provides that “[i]t shall be unlawful for a public
employer or an officer or agent of a public employer . . . to refuse to bargain collectively with the
representatives of its public employees, subject to the provisions of section 11.” MCL 423.211
provides in part:
Representatives designated or selected for purposes of collective
bargaining by the majority of the public employees in a unit appropriate for such
purposes, shall be the exclusive representatives of all the public employees in
such unit for the purposes of collective bargaining in respect to rates of pay,
wages, hours of employment or other conditions of employment, and shall be so
recognized by the public employer[.]
With respect to the city’s argument that it was proper to unilaterally remove the positions
from the bargaining unit without the consent of GREIU or an order from MERC, the city claims
that, in 2003, it was faced with a situation in which the positions held by Haner and Barfuss had
been delegated supervisory authority. The city contends that it had three options: (1) secure the
agreement of GREIU to remove Haner and Barfuss on the basis of their supervisory status, (2)
file a petition with MERC to have the status reviewed and obtain an order allowing removal from
the bargaining unit, or (3) take unilateral action as was done here. The city argues that the first
option was not possible because “GREIU was not agreeing to anything in 2003 and was more
concerned about maintaining the size of its dues paying membership than it was about
supervisory status.” The second option was not practical, according to the city, because the
process before MERC would take more than a year. Moreover, the city asserts that, while it is
legally accurate to say that an employer violates its duty to bargain in good faith if it removes a
position from the bargaining unit without the union’s agreement or an order from the
commission, this proposition only applies when there is a transfer of a nonsupervisory position
from one nonsupervisory bargaining unit to another nonsupervisory unit. And the city contends
that it would be unlawfully restraining and coercing its employees in violation of § 10(1)(a) of
PERA if it allowed Haner and Barfuss to remain in the GREIU nonsupervisory bargaining unit.
Under MCL 423.213, “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 . . . .” MERC “has repeatedly taken the position that bargaining unit placement is
neither a mandatory subject of bargaining nor a matter of managerial prerogative but a matter
reserved to [MERC] by [MCL 423.213].” City of Warren, 8 MPER 26,002 (1994), citing Detroit
Fire Fighters Ass’n, Local 344, IAFF v Detroit, 96 Mich App 543, 546; 294 NW2d 842
(1980)(“if defendant believes that the above-mentioned positions should be deleted from the
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bargaining unit, it may present its reasons therefore to MERC under the authority of MCL
423.213”); Northern Michigan Univ, 1989 MERC Lab Op 139; Michigan State Univ, 1993
MERC Lab Op 345; Ingham Co & Ingham Co Bd of Comm’rs, 1993 MERC Lab Op 808; see
also Wayne Co, 15 MPER 33,009 (2001). Further, MERC has “consistently held that an
employer may not alter bargaining unit placement unilaterally or after bargaining to impasse, but
must either obtain the Union’s agreement to changes on bargaining unit composition or obtain an
order from [MERC] by filing an unfair labor practice charge, or if appropriate, a unit
clarification petition.” City of Warren, supra, citing Michigan State Univ, supra, and Michigan
State Univ, 1992 MERC Lab Op 120. In Clerical-Technical Union of Michigan State Univ v
Michigan State Univ Bd of Trustees, 214 Mich App 42; 542 NW2d 303 (1995), this Court
reversed MERC’s issuance of a cease-and-desist order that was based on MERC’s conclusion
that the university had unlawfully removed positions from the bargaining unit represented by the
union, but our Supreme Court, 455 Mich 863 (1997), reversed this Court, ruling that “the Court
of Appeals exceeded the scope of its power of review and substituted its own judgment for that
of the MERC.”
On the basis of the authority, it is quite evident that, because the city here took unilateral
action in giving Haner and Barfuss supervisory status and removing their two positions from the
bargaining unit without agreement from GREIU or an order from MERC, its actions constituted
unfair labor practices. The city’s arguments regarding the consumption of time in pursuing an
order from MERC and regarding GREIU’s alleged inclinations in 2003 with respect to forging
agreements and collecting dues are unavailing. There is no basis in law to use these “excuses” to
avoid the requirements of PERA, nor does the city cite any supporting authority.
We also reject the city’s argument that the prohibition against unilateral action discussed
above applies only when there is a transfer of a nonsupervisory position from one
nonsupervisory bargaining unit to another nonsupervisory unit. We further reject the city’s
accompanying argument that it would be unlawfully restraining and coercing its employees in
violation of PERA if it allowed Haner and Barfuss to remain in the GREIU nonsupervisory unit;
therefore, unilateral action was permissible. Both of these arguments are predicated on Macomb
Co, 10 MPER 28,036 (1997), in which MERC found that the county had committed an unfair
labor practice when it interfered with the protected rights of employees by bargaining with an
intervening union for three illegal bargaining units, given that they contained both supervisors
and nonsupervisors. The county was a party to collective bargaining agreements with 22
employee bargaining units, and the Macomb County Employees Association
(MCEA)(intervening union) was the exclusive representative for three units (Locals I, II, and
III), two of which units were previously represented by the charging party, the American
Federation of State, County, and Municipal Employees (AFSCME). All three units had
contained supervisors and nonsupervisors at one time. MERC, adopting most of the
recommendation and order issued by the ALJ, found that all three bargaining units were
inappropriate units under PERA, that the county’s inclusion of supervisors and nonsupervisors in
the same bargaining units and bargaining with its own supervisors on behalf of nonsupervisors
constituted employer assistance and interference with the administration of a labor organization
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in violation of § 10(1)(b),2 and that the county, therefore, had interfered with, coerced, and
restrained employees in the exercise of their collective bargaining rights in violation of
§ 10(1)(a).3
Here, we acknowledge that it would be problematic for the city to allow both supervisory
and nonsupervisory employees to remain in the bargaining unit represented by GREIU; however,
this did not mean that the city was free to address the situation unilaterally, without approaching
and bargaining with GREIU on the matter or without pursuing the matter with MERC. And
Macomb Co does not stand for such a proposition. As stated by MERC in the case at bar, “At
the time [the city] decided that the positions would be given supervisory authority, [the city] had
the option of bargaining over the matter with [GREIU] or filing a unit clarification petition with
[MERC].” Furthermore, Macomb Co does not provide any support for the proposition that the
rule against unilateral action applies solely when there is movement between two nonsupervisory
bargaining units, nor do the cases by us in support of application of the rule suggest that they are
so limited.4
Next, we address the issues concerning whether MERC applied the proper test in
determining supervisory authority and whether there was competent, material, and substantial
evidence to support MERC’s conclusion that the city failed to establish that Haner and Barfuss
were supervisors. Highlighting the language from the MERC opinion challenged by the city, we
set forth the following recitation by MERC of the principles concerning the determination of
whether an employee is a supervisor:
A supervisor is one who possesses authority to hire, transfer, suspend,
layoff, recall, promote, discharge, assign, reward, or discipline other employees,
or to effectively recommend such action. To qualify as a supervisor under PERA,
an individual’s responsibility to exercise authority in the foregoing functions must
involve the use of independent judgment, including effective authority in
personnel matters, with the power to evaluate employees and recommend
discipline. Effective authority in personnel matters means that the employee’s
superiors generally accept his or her recommendation without an independent
investigation. A finding of supervisory status requires that an individual or
classification exercise independent judgment and be identified or aligned with
management in the performance of assigned duties.
2
MCL 423.210(1)(b) provides that “[i]t shall be unlawful for a public employer or an officer or
agent of a public employer . . . to initiate, create, dominate, contribute to, or interfere with the
formation or administration of any labor organization . . . .”
3
MCL 423.210(1)(a) provides that “[i]t shall be unlawful for a public employer or an officer or
agent of a public employer to interfere with, restrain or coerce public employees in the exercise
of their rights . . . .”
4
We would also note that it would appear that Haner and Barfuss, once reclassified and removed
from the bargaining unit represented by GREIU, would have been moved to APAGR, the
exclusive representative for supervisory city employees.
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An individual whose authority is limited to the routine direction of the
daily work of other employees and/or making work assignments of a routine
nature is not a supervisor under PERA. Similarly, an individual in charge of a
particular project or function who determines how the work will be completed,
decides which employees will do it, and insures that it is completed properly, is
not a supervisor unless the employee has an effective role in discipline and
personnel matters. Where higher management makes the effective personnel
decisions, the fact that an individual evaluates the performances of other
employees is not sufficient to qualify that individual as a supervisor.
Responsibilities such as maintaining time cards and granting time off are
insufficient to establish supervisory status. Also the absence of authority to
approve vacation and sick leave requests indicates an absence of supervisory
authority. The fact that an employee has input into or makes recommendations
concerning personnel decisions does not mean that the employee has effective
authority to hire, transfer, suspend, layoff, recall, promote, discharge, assign,
reward, or discipline other employees and is insufficient to establish supervisory
authority. [Citations omitted; emphasis added.]
The city argues that by using the conjunction “and,” as emphasized above, MERC
unlawfully abandoned the disjunctive test for determining supervisory authority.
We first note the following pertinent language in MCL 423.9e, which concerns the
determination and adoption of bargaining units:
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. [Emphasis added.]
This Court has directly addressed the issue posed to us in Michigan Ed Ass’n v ClareGladwin Intermediate School Dist, 153 Mich App 792; 396 NW2d 538 (1986), wherein MERC
found that the position of Coordinator/Consultant for the Gifted and Talented Education Program
of the school district was a supervisory position. MERC concluded that the coordinator was
supervisory in nature because supervisory responsibilities had in fact been delegated to the
coordinator, although the responsibilities had not been exercised or come to fruition. Id. at 795.
This Court, after first recognizing and quoting MCL 423.9e, stated:
The term “supervisor” has not been defined under the Michigan labor
mediation act nor is the term defined under the public employment relations act.
Neither this Court nor our Supreme Court has imposed a judicial definition of
“supervisor” or “supervisory” on the MERC or discussed the rationale behind
segregating the bargaining units of supervisors from the bargaining units of other
employees. Nonetheless, we need not address the MERC's ruling in a vacuum.
When this Court encounters a void of Michigan precedent on a labor subject, it
finds persuasive federal labor relations law.
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The Congress recognized a need to segregate supervisors from other
personnel because of its concern about unrestricted unionization of supervisors.
Congress was concerned that fraternal union feelings would impair a supervisor's
ability to apply his employer's policy to subordinates according to the employer's
best interest. It withdrew certain protections from “supervisory” employees in
order to give employers more freedom to prevent a pro-union bias from
interfering with the independent judgment of employees holding supervisory
positions.
“Supervisors” are defined in the Labor Management Relations Act, 29
USC 152(11):
“(11) The term ‘supervisor’ means any individual having authority, in the
interest of the employer, 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.”[5]
The federal courts have consistently held that 29 USC 152(11) is to be
read in the disjunctive with the existence of any one of the statutory powers,
regardless of the frequency of its exercise, being sufficient to confer supervisory
status on the employee, as long as the existence of the power is real rather than
theoretic. Said another way, it is not the exercise of authority, but the delegation
of authority, which is indicative of the attributes of a “supervisor.” [Michigan Ed
Ass’n, supra at 796-797 (citations omitted; emphasis added).]6
This Court held that MERC’s decision had ample support in the record, where the
coordinator had been delegated authority to recommend the hiring of certain individuals and to
direct any members of her staff; the coordinator’s powers were real, not theoretic. Id. at 797798.
The United States Supreme Court in Nat’l Labor Relations Bd v Kentucky River
Community Care, Inc, 532 US 706, 710; 121 S Ct 1861; 149 L Ed 2d 939 (2001), relied on the
statutory definition of “supervisor” found in 29 USC 152(11), and stated that it encompasses the
following three-part test for determining supervisory status:
Employees are statutory supervisors if (1) they hold the authority to
engage in any 1 of the 12 listed supervisory functions, (2) their “exercise of such
5
Although the decision in Michigan Ed Ass’n is 22 years old, the language of 29 USC 152(11) is
unchanged to this day.
6
See also Police Officers Ass’n of Michigan v Fraternal Order of Police, Montcalm Co Lodge
No 149 (Montcalm Sheriff Dep’t Div), 235 Mich App 580, 588-589; 599 NW2d 504 (1999)
(quoting same passage from Michigan Ed Ass’n), and Oakwood Healthcare, supra.
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authority is not of a merely routine or clerical nature, but requires the use of
independent judgment,” and (3) their authority is held “in the interest of the
employer.” [Citation omitted; emphasis added.]
Here, we disagree with and reject the city’s contention that MERC abandoned the
disjunctive test. First, MERC stated, consistent with 29 USC 152(11), Kentucky River
Community, Michigan Ed Ass’n, and Oakwood Healthcare, supra, that a “supervisor is one who
possesses authority to hire, transfer, suspend, layoff, recall, promote, discharge, assign, reward,
or discipline other employees, or to effectively recommend such action.” (Emphasis added.)
This language is in disjunctive form, recognizing that the existence of any one of the powers is
sufficient to confer supervisory status on an employee. While MERC also spoke of the “power
to evaluate and recommend discipline” and the role of employees in “discipline and personnel
matters” in the context of setting forth general principles, MERC applied the disjunctive test to
both Haner and Barfuss, regardless of whether MERC made any misstatement of law in its
recitation of principles.7 MERC assessed, individually, whether Haner has the authority to
evaluate work performance and whether she has the authority to assign work to other employees.
As to Barfuss, MERC assessed, individually, whether she has the authority to recommend
discipline and whether she has the authority to assign work to other employees. Accordingly, we
conclude that MERC did not abandon the disjunctive test.
The city next maintains that MERC employed an overly strict concept of “independent
judgment,” defining out of existence the assignment of work as a supervisory function. Citing
Oakwood Healthcare, supra, the city takes issue with the following passage in the MERC
decision and order, quoted once before in this opinion, which the city contends is inconsistent
with the standards in Oakwood Healthcare:
An individual whose authority is limited to the routine direction of the
daily work of other employees and/or making work assignments of a routine
nature is not a supervisor under PERA. Similarly, an individual in charge of a
particular project or function who determines how the work will be completed,
decides which employees will do it, and insures that it is completed properly, is
not a supervisor unless the employee has an effective role in discipline and
personnel matters.
The city relies on the definitions of “assign,” “responsibility to direct,” and “independent
judgment,” enunciated in Oakwood Healthcare. In that case, the NLRB first stated that the terms
“assign” and “responsibility to direct” were not intended to be synonymous and must be
accorded separate meanings. The NLRB proceeded to define “assign” as referring to “the act of
7
We do not believe that there was any misstatement of law. MERC appeared to tie the power to
evaluate and to engage in personnel matters to the power to discipline, and 29 USC 152(11) does
not reference, as separate powers, the authority to evaluate and the authority to generally engage
in personnel matters, which further defeats the city’s argument that MERC abandoned the
disjunctive test. Also, part of the challenged language was confined to a discussion of the
independent judgment element, not the enumerated supervisory functions.
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designating an employee to a place (such as a location, department, or wing), appointing an
employee to a time (such as a shift or overtime period), or giving significant overall duties, i.e.,
tasks, to an employee. That is, the place, time, and work of an employee are part of his/her terms
and conditions of employment.”8 Id.
According to the NLRB in Oakwood Healthcare, the phrase “responsibility to direct”
was not intended to include minor supervisory functions performed by set-up men, lead
employees, or straw bosses; rather, it encompasses those persons who exercise basic supervision
but lack the authority to carry out any of the other statutory supervisory functions. It is not
limited to department heads, but can include a person on the shop floor who has men under him
or her if the person decides what jobs will be undertaken and who will do it, provided the
direction is both responsible and carried out with independent judgment. The NLRB ruled that
to be responsible means the putative supervisor must be answerable, accountable, or responsible
for the performance and work product of the employees being directed, “such that some adverse
consequence may befall the one providing the oversight if the tasks performed by the
employee[s] are not performed properly.” Id.
Finally, in Oakwood Healthcare, the NLRB discussed the proper interpretation of the
term “independent judgment.” Minimally, independent judgment means that a person must “act,
or effectively recommend action, free of the control of others and form an opinion or evaluation
by discerning and comparing data.” But it must still rise above being merely routine or clerical
in nature. Supervisory status is not conferred by the exercise of some supervisory authority in a
manner that is simply routine, clerical, perfunctory, or sporadic. “If there is only one obvious
and self-evident choice . . ., or if [an] assignment is made solely on the basis of equalizing
workloads, then the assignment is routine or clerical in nature and does not implicate
independent judgment, even if it is made free of control of others and involves forming an
opinion or evaluation by discerning and comparing data.” “[A] judgment is not independent if it
is dictated or controlled by detailed instructions, whether set forth in company policies or rules,
the verbal instructions of a higher authority, or in the provisions of a collective-bargaining
agreement.” However, the mere existence of company policies does not detract from a finding
that a person exercises independent judgment if the policies allow for discretionary choices. Id.
Returning to the case at bar and the challenged passage from the MERC opinion, which is
part of a general recitation of legal principles, there does appear to be some inconsistency with
Oakwood Healthcare. However, our focus is ultimately on the application of law that is relevant
to the particular facts regarding the two positions at issue, so we shall shift our focus to the city’s
argument that there was a lack of competent, material, and substantial facts to support MERC’s
finding that Haner and Barfuss are not supervisors under the law cited above.
8
The NLRB stated that “[t]he assignment of an employee to a certain department (e.g.,
housewares) or to a certain shift (e.g., night) or to certain significant overall tasks (e.g.,
restocking shelves) would generally qualify as ‘assign’ within our construction. However,
choosing the order in which the employee will perform discrete tasks within those assignments
(e.g., restocking toasters before coffeemakers) would not be indicative of exercising the authority
to ‘assign.’”
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With respect to Haner, MERC found that, despite the city’s claim that she has authority
to evaluate work performance, she had not yet evaluated any employees in the year on the job,
nor was it known what effect any evaluation might actually have on an employee. MERC
further found that, despite the city’s claim that Haner has the authority to make work
assignments, she had not yet dispensed any discipline, she was not told by the city that she had
disciplinary authority before the hearing, and there was no explanation regarding the parameters
of any disciplinary authority. Thus, MERC could not conclude that she has any true authority to
discipline or effectively recommend formal discipline. MERC found insufficient to establish
supervisory authority the fact that Haner approves the office assistant II’s time and leave requests
and oversees her daily work.
With respect to Barfuss, despite the city’s contention that she has the ability to
recommend discipline, MERC found that she was never told of this authority before the hearing
and that it was not established that Barfuss could effectively recommend discipline. MERC
found that Barfuss’s supposed supervisory role is in conjunction with the design services
supervisor, with whom Barfuss would have to consult before making any disciplinary
recommendation. And even then Barfuss would first have to take the disciplinary
recommendation to a mutual supervisor, the assistant director, and the assistant director could
not even authorize the discipline, but had to take Barfuss’s recommendation to the next level.
MERC stated, “Barfuss does not know who has the authority to ultimately authorize discipline,
nor does the record establish the degree of inquiry to which any such recommendation would be
subjected by the assistant director or any decision makers above him.” MERC concluded,
therefore, that there was insufficient evidence to show that Barfuss effectively had authority to
recommend discipline.
In regard to the city’s assertion that Barfuss has authority to make work assignments,
MERC observed:
Although Barfuss has the authority to assign some of the work performed
by the engineering assistant, that authority is limited to routine assignments
related to right-of-way activities. Barfuss does not even have the authority to
approve the engineering assistant’s leave requests. Barfuss’[s] responsibility for
oversight and routine assignment of some of the day-to-day activities of a single
employee is insufficient to establish supervisory authority.
In sum, MERC ruled that the positions held by Haner and Barfuss do not possess
sufficient indicia of supervisory authority such that there removal from GREIU’s bargaining unit
by the city was justified.9
9
MERC noted that it is reluctant to move positions from one bargaining unit to another, or to
unrepresented status, unless there is a significant change in the characteristics and nature of the
position, and that the duties added to the two positions did not destroy their community of
interest with the bargaining unit represented by GREIU, which includes many skilled positions
with specialized training.
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On our review of the record, there was evidence that Barfuss was reclassified as an
administrative analyst I in 2003 and that the job description for the position simply stated that
“[t]he employees may supervise support staff.” Barfuss began to work on larger projects with
the change in job title. When she was reclassified, Barfuss was told by city engineer Bill Cole
that she would be supervising Eric LaPointe, an engineering assistant I, although Barfuss was
never told anything about any disciplinary steps that she could take with respect to LaPointe.
However, Barfuss testified that she considered herself responsible for disciplining LaPointe. But
Barfuss continued by explaining that if LaPointe was to fail to do some work properly or per her
instructions, she “would discuss it probably with the other person who supervises him, Vaughn
Umphrey [design services supervisor], and then the two of us would go to Rick DeVries [the
assistant city engineer for design services].” Barfuss believed that she would not just be
reporting the incident but would be making a recommendation as to disciplinary action. Barfuss
has never actually disciplined LaPointe. She was unsure whether she had any authority to grant
final approval for his vacations or sick leave, and as a matter of practice that was done by
Umphrey. Barfuss was one of the persons who evaluated LaPointe and could discuss whether
she thought he was entitled to a merit increase with the other evaluators; however, she lacked the
authority to determine whether he actually received a raise.
After the reclassification, Barfuss was told, in the context of being informed that she
would be supervising LaPointe, that “before I assigned anything to him I’d make sure he knew
what was expected of him and how to find that information.” City engineer Cole testified that he
recommended that Barfuss be reclassified to administrative analyst I because the “management
supervisory responsibility aspects of the position” had changed. He further testified that when he
told Barfuss of the reclassification, he explained to her “that she now has some assistance within
the department and that she can go directly to that person and coordinate and assign work.”
We find that MERC’s conclusion that the city failed to show that Barfuss holds
supervisory authority is supported by competent, material, and substantial evidence on the record
considered as a whole. We do, however, first note that, as to Barfuss as well as Haner, MERC
committed legal error if it lent any improper weight to the fact that these employees may not
have actually engaged in one of the particular supervisory functions enumerated in 29 USC
152(11) or the fact that these employees may not have been aware of their powers. In Michigan
Ed Ass’n, supra at 797, this Court emphasized that “it is not the exercise of authority, but the
delegation of authority, which is indicative of the attributes of a ‘supervisor.’” And the High
Court in Kentucky River Community, supra at 710, stated that the first question posed is whether
employees “hold the authority to engage in any 1 of the 12 listed supervisory functions,” and
nowhere in the three-part test need it be shown that an employee must be fully aware of his or
her authority. The critical inquiry is whether the putative supervisor actually holds or has
supervisory authority. While MERC cannot find that an employee has nonsupervisory status
simply because the employee has never exercised supervisory authority that has been delegated
to him or her or because the employee has not received communications regarding the nature of
any authority, we do believe that such facts can be considered in the context of determining
whether authority has actually been delegated or exists and the extent of the authority. For
example, if there is an allegation that authority to discipline, on the basis of independent
judgment and in the interest of the employer, was delegated to an employee, but there is evidence
that in ten years of supposedly wielding that authority the putative supervisor has never exercised
it despite clear rule infractions by alleged subordinate employees, such a fact could properly lend
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support to a finding that the putative supervisor was never actually delegated supervisory
(disciplinary) authority, which is the ultimate question. Here, we cannot discern that MERC
improperly considered the evidence at issue, but we caution MERC for future reference that such
evidence must be contemplated appropriately.
We now return to examination of Barfuss’s status. Regarding disciplinary authority, or
the authority to effectively recommend discipline, by use of independent judgment, we agree
with MERC that the evidence was simply to tenuous, vague, and undeveloped on this matter
relative to Barfuss. While Barfuss considered herself responsible for disciplining LaPointe, she
spoke only about discussing the issue with Umphrey, at which point those two would go to
DeVries for action, if LaPointe had engaged in conduct calling for discipline. No parameters
concerning Barfuss’s disciplinary authority, or her authority to effectively recommend discipline,
was elicited at trial. “Effectively recommend” means that an employee’s superior will generally
accept a recommendation without conducting an independent investigation. City of Grand
Rapids (Police Dep’t) & Command Officers Ass’n of Michigan, 17 MPER 56 (2004). It was not
established that a recommendation on discipline by Barfuss would generally be accepted without
further investigation. Giving MERC the required deference in relation to fact-finding, we do not
find error with its finding that it was not established that Barfuss could effectively recommend
discipline. Further, there was no evidence that Barfuss had any authority with respect to
vacations and sick leave approvals. Although Barfuss was one of the persons who evaluated
LaPointe, there was no evidence that she could act, or effectively recommend action, on the
evaluation by way of, for example, a reward, promotion, or suspension (enumerated powers), and
the power to evaluate, in and of itself, is not an enumerated power or supervisory function in 29
USC 152(11). In regard to the power to assign and the separate power to responsibly direct, we
conclude that the evidence did not establish that this alleged delegation of supervisory authority
went beyond tasks that are routine or clerical in nature, such that independent judgment is
exercised, or beyond minor supervisory functions typically performed by set-up men, lead
employees, or straw bosses. In sum, we hold that there existed competent, material, and
substantial evidence on the record considered as a whole to support MERC’s opinion relative to
Barfuss.
With respect to Haner, she was reclassified to the position of personnel assistant I, and
the city’s position is that she is a supervisor premised on her relation to one particular employee,
Patricia Mills, an office assistant II. Mills inputs some of the data into a new software system
called Vista, and Haner testified that Mills reports to her. Haner stated that she assigns data
entry and record keeping tasks to Mills and that she has never disciplined Mills or issued her any
written reprimands. Haner testified that she had never been given any direction about how to
reprimand, “but I would find my answer if necessary.” Haner further testified that she has never
evaluated Mills, but then observed, “I have that coming up April 3rd.” Haner was informed by
David Etheridge, the city’s director of human resources, that she was Mills’ supervisor and that
she was the one who would sign Mills’ sick leave forms. Haner also has the authority to grant
leave when Mills requests it.
During Haner’s testimony, the following colloquy between the ALJ and Haner occurred:
Q. I have a question that kind of needs to be clarified.
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On the issue of your authority to discipline Mrs. Mills, have you ever been
told by Mr. Etheridge or anybody what the scope of your authority is? Has
anybody ever talked to you about whether or not you have the right to issue
formal discipline?
A. No. I know the job classifications. Mr. Etheridge did talk to me and did tell
me I had the right to deny, I had the right to sign and was to sign all of her – to
perform her evaluations, sign her requests for time off, her time sheets, her
sick forms.
Q. So Mr. Etheridge went through those items with you, just – he didn’t discuss
the issue of discipline?
A. No. If I – if it had come up, I would question him on or I would talk to Mr.
Etheridge regarding disciplinary actions.
Etheridge testified that Haner supervises one person – Mills. Etheridge stated that Haner
has the authority to discipline, to evaluate performance, and to authorize any leave requests.
When Haner was reclassified, Etheridge informed Mills that Haner was her new supervisor, that
she was to assist Haner with any payroll functions or other duties related to her assignment, and
that her job was to support Haner’s function. Etheridge additionally informed Mills that Haner
would be responsible for approving any leave requests and for conducting performance
evaluations. Although Etheridge did not recall whether he spoke to Mills about the issue of
discipline, it was a known fact that all supervisors had the authority to discipline.
The city’s labor relations manager, Mari Beth Jelks, testified to her belief that Haner was
a supervisor and not a “lead worker.” Jelks stated that a supervisor has the direct authority to
approve or deny leave requests and the authority to discipline, including being involved in the
hiring and firing of an employee. A lead worker, according to Jelks, handles all of a subordinate
employee’s daily assignments and makes sure that the employee is where he or she needs to be
in order to carry out daily functions, but lead workers are not supervisors. Jelks was unaware
whether Haner had ever taken disciplinary measures, which officially would include a letter of
warning and suspension or discharge.10
With respect to Haner, we cannot conclude that MERC’s factual findings were not based
on competent, material, and substantial evidence on the record considered as a whole.
In regard to the supervisory power to assign and the power to responsibly direct Mills,
although Haner testified that she assigns data entry and record keeping tasks to Mills, it was not
10
There was evidence, via the testimony of Haner and Jelks, that Haner had once “verbally
counseled” Mills after a misunderstanding regarding a situation in which Haner went through
Mills’ desk looking for some documents. Mills “went to labor relations” over the matter, and
Haner testified that she spoke to Mills about the need for Haner to have quick access to
necessary documents.
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established that these tasks involved Haner’s use of independent judgment, rather than being
routine or clerical in nature. As to discipline, or recommending discipline, the record was too
undeveloped and vague concerning the contours, nature, characteristics, or parameters of any
disciplinary authority held by Haner. We acknowledge that Jelks testified about authority to
hire, suspend, fire, warn, and reprimand, but this was in the context of generally describing a
supervisor’s authority. The fact that Haner has never reprimanded Mills, despite an incident
between the two, nor was ever given any direction regarding disciplinary authority, lends support
to a conclusion that disciplinary authority was never actually delegated to or held by Haner,
although such factors cannot stand alone to support MERC’s ruling for the reasons stated above.
The evidence was also lacking on the issue of the use of independent judgment relative to
disciplinary authority.
There was evidence that Haner had been delegated the power to evaluate Mills, but,
again, the authority to evaluate is not enumerated in 29 USC 152(11), and there was a lack of
evidence showing that Haner had the authority to take any actions based on an evaluation that
might fall under 29 USC 152(11), e.g., to promote, reward, or discharge Mills, let alone that any
actions would involve independent judgment. Regarding approval of sick leave, time sheets, or
leave time in general, these matters do not fall under the auspices of 29 USC 152(11), nor was
there evidence to establish that independent judgment is to be used in handling such matters.
They would appear routine and clerical in nature. In Village of Ortonville & Teamsters Local
214, 17 MPER 46 (2004), MERC observed that “responsibilities such as maintaining time cards,
and granting time off, are insufficient to establish supervisory status.”
In sum, we hold that there exists competent, material, and substantial evidence on the
record considered as a whole to support MERC’s opinion relative to Haner.
III. Conclusion
We find legally sound MERC’s determinations that the city could not unilaterally alter
and remove the bargaining unit placements concerning the positions held by Haner and Barfuss
and that the city was required to either obtain GREIU’s agreement to changes on bargaining unit
composition or obtain an order from MERC by filing an unfair labor practice charge or a unit
clarification petition. Further, we disagree with and reject the city’s contention that MERC
abandoned the disjunctive test for determining supervisory status. Next, although MERC may
have arguably made a misstatement of law in its general recitation of legal principles, it
ultimately and properly applied law that is relevant to the particular facts regarding the two
positions at issue. And there is competent, material, and substantial evidence on the record as a
whole to support MERC’s conclusion that the city did not establish that Haner and Barfuss are
supervisors under the authorities discussed in this opinion.
With respect to the enforcement action filed by GREIU under MCL 423.216(d), MERC’s
decision and order are to be enforced for the reasons stated in this opinion, and the city is hereby
ordered to fully comply with the decision and order. In responding to GREIU’s petition, the city
asserts that events transpiring subsequent to MERC’s ruling require us to deny GREIU’s petition
to enforce the ruling. The city relies on the affidavits of Barfuss and Emilie Oxender, who
stepped into the position once held by Haner, which make averments to new facts. However,
the city never applied to this Court “for leave to present additional evidence” as required by
MCL 423.216(d). Moreover, assuming that the evidence could be considered, it still fails,
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because of a lack of detail as to parameters and other relevant matters, to support a holding
contrary to our conclusion in this opinion. Finally, we reject the city’s contention that MERC’s
award of lost union dues and fees should not be enforced. Contrary to the city’s arguments, the
award of lost dues and fees was not punitive and does indeed effectuate PERA policies.
Affirmed.
/s/ Pat M. Donofrio
/s/ David H. Sawyer
/s/ William B. Murphy
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