Opinion
Docket No. 94739.
Decided October 22, 1987.
L. Roger Webb, for petitioner.
Keller, Thoma, Schwarze, Schwarze, DuBay Katz, P.C. (by Norman D. Hawkins), for the City of Wayne.
The City of Wayne appeals as of right a Michigan Employment Relations Commission decision and order which denied certain of the city's objections to the representation election which had been sought by Michigan Council 25, American Federation of State, County and Municipal Employees, AFL-CIO, Local 290, Wayne Chapter and which denied the the city's motion to dismiss the union's petition for the representation election.
On May 29, 1985, the union filed a petition for election with MERC, seeking an election for representation of a bargaining unit limited to all full- and part-time maintenance employees in the city's parks and recreation department. The union also requested that, should the employees vote to be represented, they would be accreted to AFSCME, Local 290. The union subsequently produced a thirty percent showing of interest of the employees in the bargaining unit described in the petition.
Since the parties were unable to agree to a consent election, a hearing was held before a hearing officer. Following the hearing, briefs were submitted by the parties. In its brief, the city requested dismissal of the union's petition on the basis that the proposed unit was inappropriate because it did not include all of the employees which, the city maintained, shared a community of interest. In its brief, the union included an additional showing of interest based on a proposed expanded unit which included classifications of utility maintenance workers, receptionists, clerks, and exercise consultants.
In its decision and direction of election issued on March 21, 1986, MERC found an appropriate unit which was more expansive than either the unit originally sought in the petition or proposed by the union in its brief. Since the bargaining unit was expanded, the commission directed that a new check be made of the showing of interest after a list of employees was made available by the city. The city was given ten days in which to furnish the list. The city's motion to dismiss the union's petition was held in abeyance pending the union's production of a showing of interest by the enlarged bargaining unit.
On March 31, 1986, the city submitted the list of employees. On April 1, 1986, the commission's election supervisor notified the union that it had seven days in which to provide the additional showing of interest. Although the city objected to the extension of time and on April 3, 1986, filed a motion for immediate consideration of its motion to dismiss, no ruling was made on the objection.
From the record presented on appeal it is unclear whether the union ever made the requisite showing of interest required by MERC. We assume that it did, since: (1) the union claims such showing was made on April 2; and (2) the direction of election was expressly made conditional on the additional showing of interest and MERC subsequently issued a notice of election for May 22, 1986. At the election, the union received twenty-one votes, while fifteen votes were cast for no union representation.
On May 30, 1986, the city filed its objections to the election and sought to have the election set aside. MERC subsequently issued a decision finding the city's objections without merit. On August 7, 1986, MERC issued a certification of representation that the full- and part-time employees in the designated bargaining unit be accepted into the existing unit represented by AFSCME, Local 290.
On appeal, the city contends that MERC erred in not requiring a thirty percent showing of interest in the expanded bargaining unit before directing that an election be held. Section 12 of the public employment relations act, MCL 423.212; MSA 17.455(12). Since the city failed to raise this issue before MERC it has waived the issue for purposes of review. Dow Chemical Co v Curtis, 158 Mich. App. 347, 352; 404 N.W.2d 737 (1987).
The city also contends that it was improper for MERC to grant the union additional time to produce a showing of interest in the bargaining unit. We disagree. The ten-day period in MERC'S decision and direction of election was directed to the city, i.e., the city was given ten days within which to furnish an employee list to the union. No mention was made that the union was required to make a showing of interest within this time also. Since the city furnished the list of employees on the last day of the ten-day period, it would be inherently unfair to require the union to make its showing of interest within this time as well. Since the purpose of the showing of interest is that of barring frivolous claims of recognition and avoiding unnecessary expense and waste of time conducting needless elections, Basney Smith v Teamsters Local 299, 1967 MERC Lab Op 53, 55; Broadstreet Medical, Inc v Hospital Employees Local 79, Building Service Employees International Union, 1967 MERC Lab Op 592, 594, the extension of time was not improper. In any event, it appears that the union promptly responded with its showing of interest.
The city's final claim on appeal is that MERC'S exclusion of utility clerks and inclusion of receptionists in the expanded bargaining unit was not supported by competent, material and substantial evidence. We disagree. The task of determining an appropriate bargaining unit is left to MERC. MCL 423.213; MSA 17.455(13) and MCL 423.9e; MSA 17.454(10.4); Local 128, AFSCME v Ishpeming, 155 Mich. App. 501, 515; 400 N.W.2d 661 (1986). The determination of an appropriate unit is a finding of fact which will not be overturned by this Court if supported by competent, material and substantial evidence. Id.; Michigan Educational Support Personnel Ass'n v Southfield Public Schools, 148 Mich. App. 714, 717; 384 N.W.2d 768 (1985). Since both parties agreed to the inclusion of receptionists in the proposed bargaining unit, that decision must stand. Furthermore, MERC'S decision that utility clerks' functions were predominately office clerical in nature was supported by competent, material and substantial evidence on the record. Hence that decision must also stand.
Affirmed.