International Union, United Automobile, Aerospace & Agricultural Implement Workers v. City of Sterling Heights

413 N.W.2d 716, 163 Mich. App. 8, 1987 Mich. App. LEXIS 2743
CourtMichigan Court of Appeals
DecidedSeptember 9, 1987
DocketDocket No. 95836
StatusPublished
Cited by7 cases

This text of 413 N.W.2d 716 (International Union, United Automobile, Aerospace & Agricultural Implement Workers v. City of Sterling Heights) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
International Union, United Automobile, Aerospace & Agricultural Implement Workers v. City of Sterling Heights, 413 N.W.2d 716, 163 Mich. App. 8, 1987 Mich. App. LEXIS 2743 (Mich. Ct. App. 1987).

Opinion

M. J. Kelly, J.

Respondent, City of Sterling [10]*10Heights, appeals the decision by the Michigan State Employment Relations Commission that includes five supervisory positions in a residual supervisory bargaining unit. Petitioner, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW-Technical, Professional Department (uaw), cross-appeals the exclusion of the city assessor from the residual supervisory bargaining unit. We affirm in part and reverse in part.

The city, with a population of 115,000, is governed by an elected city council that appoints a city manager. The city has approximately six hundred employees, and prior to this action all but fifty-seven were represented by nine separate bargaining units.

The uaw petitioned for two residual bargaining units, one supervisory and one nonsupervisory, to cover all unrepresented employees of the city. This case only concerns the inclusion and exclusion of certain positions from the residual supervisory bargaining unit,

Prior to the merc determination, the parties agreed to exclude from the residual supervisory bargaining unit the following four positions because of their executive status: the city manager, the deputy city manager, the fire chief, and the chief of police. Initially, the city argued that, except for the chief zoning inspector and the chief engineering inspector, all other unrepresented supervisory employees of the city held executive positions and should be excluded from any bargaining unit. Merc disagreed and included all of the remaining supervisory employees, with the exception of the city assessor, city clerk and city treasurer, in the residual supervisory bargaining unit.

On appeal the city has limited its claim of error [11]*11to the inclusion of five positions in the residual supervisory bargaining unit. These are: the finance director, the director of city development, the director of public services, the library director and the director of parks and recreation. The city maintains that these five positions fall into the executive exclusion and that merc's determination that they were supervisory and includable in the residual supervisory bargaining unit was not supported by competent, material and substantial evidence on the record as a whole.

The executive exclusion is based upon merc's power to delineate appropriate bargaining units and it prevents employees in executive positions from being included in a bargaining unit which consists of nonexecutive employees. See Detroit Bd of Ed v Local 28, Organization of School Administrators & Supervisors, ALF-CIO, 106 Mich App 438; 308 NW2d 247 (1981), lv den 413 Mich 859 (1982), MCL 423.213; MSA 17.455(13) and MCL 423.9e; MSA 17.454(10.4).

Determination of a collective bargaining unit is a finding of fact, not to be overturned by this Court if it is supported by competent, material and substantial evidence. See Michigan Educational Support Personnel Ass’n v Southfield Public Schools, 148 Mich App 714, 717; 384 NW2d 768 (1985); Local 128, [sic, 1282] AFSCME v Ishpeming, 155 Mich App 501, 508; 400 NW2d 661 (1986), lv den 428 Mich 902 (1987); MCL 423.23; MSA 17.454(25).

Merc has adopted a case-by-case approach in determining whether the executive exclusion applies. Detroit v Detroit Dep’t of Transportation Foreman’s Ass’n, 109 Mich App 141, 143; 311 NW2d 319 (1981), lv den 413 Mich 902 (1982). In DOT Foreman’s Ass’n the Court noted the fact that merc had expanded its definition of executive [12]*12"from applying to 'policy making heads of major departments’ to include 'an employee who exercises broad discretion, even if it is only in regard to effectuating management policy.’ ” DOT Foreman’s Ass’n, supra at 143. See also Local 28, OSAS, supra at 444. Factors to be examined in reaching a determination of executive status include the scope of responsibility, extent of authority and interchangeability of function with other executives. Id. at 444.

When the standard of review is that findings of fact must be supported by competent, material and substantial evidence on the record as a whole, a thorough judicial review of the administrative decision was intended:

[A] review which considers the whole record— that is, both sides of the record—not just those portions of the record supporting the findings of the administrative agency. Although such a review does not attain the status of de novo review, it necessarily entails a degree of qualitative and quantitative evaluation of evidence considered by an agency. Such review must be undertaken with considerable sensitivity in order that the courts accord due deference to administrative expertise and not invade the province of exclusive administrative fact-finding by displacing an agency’s choice between two reasonably differing views. [MERC v Detroit Symphony Orchestra, Inc, 393 Mich 116, 124; 223 NW2d 283 (1974).]

Mindful of the appropriate standard of review, a qualitative and quantitative evaluation of the evidence presented on each of the disputed positions has been undertaken.

FINANCE DIRECTOR

The parties jointly introduced into evidence an [13]*13administrative ordinance referred to as the Economic Development Corporation. That ordinance provides that the director of finance is directly responsible to the city manager for the functions of the department of city finance. The edc also provides that the director of finance shall supervise the office of city finance, the office of city treasurer and the office of city assessor. Both the city treasurer and the office of city assessor were found by the commission to be of executive status despite the fact that they were subordinate to the office of finance director.

The 1985-86 budget, introduced into evidence by the city, provides that the finance department, for which the finance director is responsible, develops, monitors and maintains records and an accounting system for all financial transactions relating to the city’s operations. The primary duty of the finance director is to search and recommend ways to keep the city on sound financial footing. Duties of the finance director also include: assisting in the preparation of the city budget, maintaining all financial records of the city, coordinating and supervising the activities of the city assessor’s and the city treasurer’s office, regularly reviewing and forecasting revenues, expenses, cash flow, capital assets for budgeting control and possible investment of idle city assets, and procurement and control of all insurance for the city. The finance director’s signature is one of two signatures required on all city checks processed.

In assessing the factors to be considered for executive exclusion, the finance director’s scope of responsibility is extensive. The person who occupies that position must maintain all financial records of the city, procure all the city’s insurance needs, and assist in preparing the city budget. The extent of the finance director’s authority is also [14]*14considerable. Both the city assessor and the city treasurer report to the director of finance. This evidences the element of interchangeability of this position with other executive positions.

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Bluebook (online)
413 N.W.2d 716, 163 Mich. App. 8, 1987 Mich. App. LEXIS 2743, Counsel Stack Legal Research, https://law.counselstack.com/opinion/international-union-united-automobile-aerospace-agricultural-implement-michctapp-1987.