Traverse City Education Ass'n v. Traverse City Public Schools

443 N.W.2d 473, 178 Mich. App. 205, 1989 Mich. App. LEXIS 313
CourtMichigan Court of Appeals
DecidedJuly 6, 1989
DocketDocket No. 106982
StatusPublished

This text of 443 N.W.2d 473 (Traverse City Education Ass'n v. Traverse City Public Schools) 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
Traverse City Education Ass'n v. Traverse City Public Schools, 443 N.W.2d 473, 178 Mich. App. 205, 1989 Mich. App. LEXIS 313 (Mich. Ct. App. 1989).

Opinion

Per Curiam.

Respondent appeals as of right from the Michigan Employment Relations Commission’s decision directing an accretion election to be held. Traverse City Public Schools v Traverse City Ed Ass’n, 1988 MERC Lab Op 132. The in-school suspension supervisor (hereinafter the detention study hall supervisor) and attendance officer assistant were to decide whether they wished to be represented by the petitioner, which represented respondent’s teaching (i.e., professional) employees. We initially remanded this case so that the merc could resolve respondent’s claim that petitioner’s accretion petition was untimely filed. Traverse City Ed Ass’n v Traverse City Public Schools, unpublished opinion per curiam of the Court of Appeals, decided April 24, 1989 (Docket No. 106982). The merc having resolved that issue, we now reverse.

On November 13, 1986, an election was held pursuant to a consent agreement to determine whether "all aides, secretaries, clerks, library media assistants regularly employed by” respondent wished to be represented by the Michigan Educational Support Personnel Association. Respondent considered Robert Rixom, the detention study hall supervisor, an aide and listed him as an eligible voter in the November 13 election. Rixom voted in the election which resulted in union representation.

[208]*208On January 27, 1987, petitioner filed an accretion petition, seeking to accrete the positions of detention study hall supervisor and attendance officer assistant to its existing unit of professionals. The order directing the election was issued on February 11, 1988.

Respondent claims that MCL 423.214; MSA 17.455(14) barred petitioner’s accretion petition as to the detention study hall supervisor. MCL 423.214; MSA 17.455(14) provides in part:

An election shall not be directed in any bargaining unit or any subdivision within which, in the preceding 12-month period, a valid election was held.

Respondent notes that the purpose of this section is to ensure stability and argues that petitioner should not be able to file a petition seeking to accrete an individual, who has within the year voted in a representation election without challenge, to another bargaining unit.

Petitioner argues that MCL 423.214; MSA 17.455(14) does not apply because the election was not directed in the same bargaining unit and, in any event, notes that the election was directed on February 11, 1988, over a year after the November 13, 1986, election was held.

In Lansing Community College v Lansing Community College Faculty Ass’n, 1979 MERC Lab Op 1180, the petitioner filed an accretion petition on December 21, 1978, and an election was held on February 20, 1979. The individuals who voted in that election were unrepresented nonsupervisory faculty in the airframe and flight sections of the aviation technology program. On February 27, 1979, the petitioner filed another accretion petition, seeking to add two other individuals to the [209]*209unit. Subsequently, the petitioner decided to proceed with its petition as to only one of these individuals. That individual had not voted in the prior accretion election because the parties could not agree on his status.

The respondent claimed that the accretion petition was barred pursuant to MCL 423.214; MSA 17.455(14) because an accretion petition had been filed within the previous year among the same nonsupervisory employees. LCC, supra at 1184. Noting that the purpose of MCL 423.214; MSA 17.455(14) was to relieve an employer from the burden of defending multiple petitions in a given bargaining unit within a twelve-month period so that some stability in labor relations might be achieved, the merc agreed.

In Rockford v Service Employees International Union, Local 586, 1980 MERC Lab Op 459, a representation petition was filed on August 10, 1979. In September of 1979, the parties signed an election consent agreement which excluded the assistant water plant superintendent from the employees eligible to vote in the election. The election was held on October 4, 1979, and the petitioner was certified as the employees’ representative on October 15, 1979. The petitioner filed a unit clarification petition seeking to add the assistant water plant superintendent to its bargaining unit. The merc held that to entertain the petition for unit clarification during the certification year would interfere with labor relations stability and thwart the utility of the device of consent election. Id. at 465. The merc noted that it was acceptable practice for the parties to agree that certain classifications will vote challenged ballots, with the understanding that the merc will determine their inclusion or exclusion after the election. Id. at 464, n 2.

[210]*210In Kingsley/Traverse City Adult Ed Consortium v Michigan Federation of Teachers, 1988 MERC Lab Op 118, the petitioner filed an accretion petition three months after a consent election agreement was signed, seeking to accrete two positions to the bargaining unit which had been expressly excluded therefrom pursuant to the consent election agreement. The petitioner agreed to exclude the positions because it did not want to hold up the election, but indicated that it would file an accretion petition if it was certified as the unit’s bargaining representative.

The merc held that the petitioner had the opportunity to litigate the supervisory status of the two positions it sought to accrete and that petitioner’s agreement to exclude the positions from the bargaining unit precluded it from seeking to represent those employees for a period of twelve months after the date of election. While the merc noted that more than twelve months had passed since the election, it followed its policy of dismissing a petition filed more than sixty days prior to the expiration of the twelve-month period after an election. Id. at 122.

On remand in this case, the merc distinguished Lansing Community College and Rockford because those cases involved the petitioner’s attempt to add employees to a bargaining unit from which it had previously agreed to exclude them. The instant case involves petitioner’s attempt to accrete an individual who had earlier voted in an election involving one bargaining unit to another bargaining unit. The merc also noted that the parties’ earlier consent election agreement did not specifically include the detention study hall supervisor by title and that the petitioner’s failure to challenge Rixom’s inclusion in the voting list was not sufficient to establish that the parties had an [211]*211agreement to include his position in the aides’ unit. The merc also noted that the record did not show that that position had ever been part of the aides’ unit. Hence, the merc concluded that an accretion election would not constitute an election in the bargaining unit or subdivision thereof in which the previous election was conducted and, therefore, was not untimely pursuant to MCL 423.214; MSA 17.455(14).

We disagree. The record demonstrates that respondent classified the detention study hall supervisor as an aide. While Rixom’s title was not specifically listed in the consent election agreement, Rixom did vote in the election without objection.

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443 N.W.2d 473, 178 Mich. App. 205, 1989 Mich. App. LEXIS 313, Counsel Stack Legal Research, https://law.counselstack.com/opinion/traverse-city-education-assn-v-traverse-city-public-schools-michctapp-1989.