Michigan Education Ass'n v. Alpena Community College

577 N.W.2d 457 (1998) 457 Mich. 300 MICHIGAN EDUCATION ASSOCIATION, Petitioner-Appellant, v. ALPENA COMMUNITY COLLEGE, Respondent-Appellee. Docket No. 107926. Supreme Court of Michigan. May 19, 1998. White, Przybylowicz, Schneider & Baird, P.C. by Kathryn A. VanDagens, Kathleen Corkin Boyle, and William F. Young, Okemos, for respondent-appellant. Thrun, Maatsch & Nordberg, P.C. by Donald J. Bonato, Lansing, for petitioner-appellee. OPINION PER CURIAM. The Michigan Employment Relations Commission ordered anelection to determine whether a group of unrepresented Alpena Community College employees should be represented by the collective bargaining representative of an existing unit at the college. The Court of Appeals reversed the election order, but we reinstate the decision of the MERC. I The Michigan Education Association is the collective bargaining representative for a unit of nonsupervisory office personnel at Alpena Community College. Building service employees, including custodians and maintenance workers, are represented by a separate union. It appears from the record that *458 a third bargaining unit exists for Alpena Community College faculty. As of September 1993, approximately thirty employees remained outside the three bargaining units. This residual group was a diverse collection of unrepresented nonsupervisory support staff. In the course of its decision on this matter, the MERC provided a roster of the positions held by these persons: The petition, as supplemented by the record, identified the following positions, some of which are part-time or combined positions, or held by more than one employee, as being part of the proposed residual group: health fitness/activities technician; evening college technician; bookstore manager; developmental studies technician; library technician; volunteer coordinator; admission/activities technician; administrative assistant; mail processing/distribution technician; volunteer center coordinator; youth corps program coordinator, and service learning coordinator; volunteer center coordinator; data processing laboratory technician; senior parking attendant; tutor coordinator/technician; biology lab assistant; toolcrib person-automotive or machine tool; assistant bookstore manager; learning resource center (LRC) media technician; director of public information; consultant-resource/foundation development; administrative technician, upward-bound student advocate; developmental studies technician; financial aid and student services technician; switchboard operator; art technician; and placement coordinator. The petition also includes the added positions of administrative technician-Huron Shores TLC; administrative technicians, economic development (Iosco County); job development specialist; and student coordinator. [1994 MERC Lab. Op. 955, 960.] In a September 1993 petition, the MEA asked the MERC to "accrete" the residual unit to the existing MEA unit of clerical employees. That is, the petition sought an election among the residual group to determine whether those persons wanted to join the existing unit and be represented by the MEA. After an evidentiary hearing, the MERC ruled in favor of the MEA, directing that the election be conducted.[1] The Court of Appeals stayed the election[2] and denied the MEA's motion to affirm.[3] The Court then reversed the decision of the MERC.[4] Judge HELENE N. WHITE dissented. The MEA has applied to this Court for leave to appeal. II Where the bulk of an organization's employees are formed into several collective bargaining units, leaving behind a handful of unrepresented employees, it is quite foreseeable that the residual group will be a scattering of persons with miscellaneous duties. So it is in this case. In such a situation, the MERC faces a tension between two competing considerations as it fulfills its statutory obligation to determine a proper bargaining unit.[5] One is the *459 principle of "community of interest," which calls for employees to have shared interests with others in their bargaining unit. The opposing consideration is that collective bargaining units should be reasonably large to avoid a proliferation of fragmented bargaining units. In Hotel Olds v. State Labor Mediation Bd., 333 Mich. 382, 387, 53 N.W.2d 302 (1952), we adopted this concise statement from an earlier Massachusetts case:[6] "In designating bargaining units as appropriate, a primary objective of the commission is to constitute the largest unit which, in the circumstances of the particular case is most compatible with the effectuation of the purposes of the law and to include in a single unit all common interests." Elaborating on the analysis to be employed by the MERC, the Court of Appeals said this in 1990: In designating appropriate bargaining units, the commission's primary objective is to constitute the largest unit which, under the circumstances of the case, is most compatible with the effectuation of the purposes of the law and includes in a single unit all common interests. Mich. Ass'n of Public Employees v. AFSCME Council 25, 172 Mich.App. 761, 765, 432 N.W.2d 748 (1988), quoting Hotel Olds v. Labor Mediation Bd., 333 Mich. 382, 387, 53 N.W.2d 302 (1952). Consistent with this objective, the commission's policy is to avoid fractionalization or multiplicity of bargaining units. Ass'n of Public Employees, supra, [at]765[, 432 N.W.2d 748]. The touchstone of an appropriate bargaining unit is a common interest of all its members in the terms and conditions of their employment that warrants inclusion in a single bargaining unit and the choosing of a bargaining agent. Id. This Court abides by the commission's policy to constitute the largest bargaining unit compatible with the effectuation of the PERA. Id., [at]765-766, 432 N.W.2d 748. [Muskegon Co. Professional Command Ass'n v. Muskegon Co., 186 Mich.App. 365, 373-374, 464 N.W.2d 908 (1990).] In the present case, the MERC determined that the proposed residual unit was appropriate, and directed that the election be held. It outlined the principles stated in Hotel Olds and Muskegon Co. Professional Command Ass'n, and noted its own longstanding preference for broad units of support personnel in school cases,[7] before concluding: Although not all employees in the proposed unit have similar duties, skills, or educational qualifications, there are similarities in these areas among individual positions. The fact that salaries and benefits *460 vary among the positions sought is not sufficient to destroy their community of interest. Washtenaw Community College, 1993 MERC Lab. Op. 781, 790-791. The employees all work on the Employer's main or auxiliary campuses, and the Employer's organization chart demonstrates a centralized management system. Under Hotel Olds, supra, we are required to find appropriate the single largest group of employees who share a community of interest. This rule is for the benefit of employers, since it minimizes the fragmentation of units, prevents units based on extent of organization, and eliminates problems associated with multiple bargaining obligations. See Livonia Public Schools, 1988 MERC Lab. Op. 1068, 1075-1081; and 1989 MERC Lab. Op. 190, 192-193. We find that the unit sought by Petitioner satisfies this requirement. We conclude, therefore, that the residual group in this case, all nonsupervisory, nonfaculty employees excluded from existing units, may be accreted to the existing clerical unit to form a single all-college unit. [1994 MERC Lab. Op. 967.] In its majority opinion, the Court of Appeals agreed with Alpena Community College that the employees "do not enjoy a community of interest." The majority explained: Respondent notes that the employees have different duties, educational requirements, pay and benefits. While we recognize the MERC policy towards achieving the largest compatible bargaining units, we must agree with respondent that the employees sought to be accreted are simply too diverse to be considered to have a community of interest. A mere reading of the job titles demonstrates this. They work in a variety of different areas of the college in numerous different tasks. Some are technicians, while others are managers and directors. There are administrative support employees, student activities employees, bookstore employees, and even parking lot employees. The only commonality we see among these employees is that they have the same employer. Accordingly, we conclude that the trial court erred in its conclusion. See Muskegon Co. Professional Command Ass'n v. Muskegon Co., 186 Mich.App. 365, 464 N.W.2d 908 (1990). Writing in dissent, Judge WHITE quoted at length from the MERC opinion, noting that Alpena Community College had variously argued below that the proposed unit was both too narrow and too broad, though the college had not proposed an alternative unit. Accepting the conclusions reached by the MERC, Judge WHITE wrote that the "MERC's determination prevented further fragmentation and the leaving behind of even smaller groups of unrepresented employees, and was appropriate under the circumstances." III Appellate review of a determination by an administrative agency is limited. The Court of Appeals has correctly identified the standard of review: 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. [Int'l Union, United Automobile, Aerospace & Agricultural Implement Workers v. Sterling Heights, 163 Mich.App. 8, 11, 413 N.W.2d 716 (1987) (citations omitted).] Elsewhere, this standard has been described in slightly different terms: The determination of the appropriate bargaining unit is a finding of fact. This Court will not substitute its judgment for that of the commission with regard to the appropriate bargaining unit unless there is a clear showing of error. Id.[[8]] [Muskegon Co Professional Command Ass'n, supra at 374, 464 N.W.2d 908.] See also Hosp. Employees' Div., Local 79, Service Employees' Int'l Union, AFL-CIO v. Flint Osteopathic Hosp., 390 Mich. 635, 638, 212 N.W.2d 897 (1973) ("The appellate courts of this state will hesitate to substitute a judicial judgment of the appropriate unit for MERC's determination, and will do so reluctantly and only upon a showing of clear error"). *461 Const. 1963, art. 6, § 28 indicates that factual determinations by the MERC are to be reviewed according to the competent, material, and substantial evidence standard. Under these circumstances, the phrase "a clear error" is properly understood as an absence of competent, material, and substantial evidence on the whole record to support the finding. Decisions of the MERC regarding residual bargaining units are generally to be given significant deference under this standard. Not only do such disputes tend to be unique, but a residual-unit case necessarily involves employees who remain after the formation of other, better defined bargaining units. Gathering up remaining employees into a residual unit will nearly always involve joining employees with diverse job descriptions. The factual determination whether the proposed residual unit is excessively diverse lies with the MERC, and it will not be disturbed if it is supported by competent, material, and substantial evidence. We agree with Judge WHITE that the decision of the MERC was sound. While the residual group contains persons with varying responsibilities and compensation levels, we see no sign that the statutory purposes or the goals of collective bargaining would be frustrated by formation of the unit approved by the MERC. On review of this matter, we are satisfied that its findings were supported by competent, material, and substantial evidence. For these reasons, we reverse the judgment of the Court of Appeals and reinstate the decision of the Michigan Employment Relations Commission. MCR 7.302(F)(1). MALLETT, C.J., and BRICKLEY, MICHAEL F. CAVANAGH, BOYLE, MARILYN J. KELLY, and TAYLOR, JJ., concurred. WEAVER, Justice (concurring). I concur with the result of the per curiam opinion, but write separately to clarify the application of the substantial evidence standard. The opinion states: "Decisions of the MERC regarding residual bargaining units are generally to be given significant deference under this standard." Slip. op., p. 461. This statement implies a more limited review under the substantial evidence standard than this Court has adopted. This Court's interpretation of the substantial evidence standard was described in MERC v. Detroit Symphony Orchestra, 393 Mich. 116, 124, 223 N.W.2d 283 (1974): What the drafters of the Constitution intended was a thorough judicial review of administrative decision, 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 the 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. Detroit Symphony Orchestra still controls our application of the standard. I agree that it is correct to affirm the MERC decision that an election may be conducted to determine whether the residual employees want to join the existing clerical employee bargaining unit. I do so because a thorough review of the whole record reveals a close decision. On the one hand, the functions of the residual employee's seem too diverse to share a "community of interest." On the other, these employees clearly share supporting roles in the college community. Given that reliance on either of these factors is reasonable, it is not our place to reverse the MERC's decision. The result in this case is further supported by the policy articulated in Hotel Olds v. Labor Mediation Bd., 333 Mich. 382, 53 N.W.2d 302 (1952), which seeks to create the largest unit possible. For the reasons above, I concur separately. NOTES [1] The MERC excluded a small number of employees from the proposed residual bargaining unit, on the grounds that they were supervisory or confidential employees. [2] Order of the Court of Appeals, entered January 18, 1995 (Docket No. 180695), lv den 448 Mich. 911, 533 N.W.2d 581 (1995). [3] Order of the Court of Appeals, entered April 18, 1995 (Docket No. 180695). [4] Unpublished opinion per curiam of the Court of Appeals, issued November 8, 1996 (Docket No. 180695). [5] The statute provides: 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. If the group of employees involved in the dispute was recognized by the employer or identified by certification, contract or past practice, as a unit for collective bargaining, the commission may adopt that unit. [M.C.L. § 423.9e; M.S.A. § 17.454(10.4).] The commission shall decide in each case, in order to insure 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 as provided in [M.C.L. § 423.9e; M.S.A. § 17.454(10.4)]. [M.C.L. § 423.28; M.S.A. § 17.454(30).] [6] Salem Hotel Corp v. Hotel & Restaurant Workers, Local 290, AFL, 19 LRRM 1245 (1946). [7] The MERC explained: This Commission has always preferred broad units of support-type employees, and has found a community of interest among such employees, wherever prior bargaining history or the agreements of the parties do not prevent such findings. For example, compare Dearborn Public Schools, 1990 MERC Lab. Op. 513, 516-518 (refusal to sever clericals from broad noninstructional unit); Waverly Comm Schools, 1989 MERC Lab.. Op. 819, 821 (clericals found to have community of interest with food service employees); Forest Hills PS, 1989 MERC Lab Op. 781, 785 (food service combined with custodial-maintenance); Farwell Area Schools, 1986 MERC Lab. Op. 671, 673, and Morley-Stanwood Comm Schools, 1985 MERC Lab. Op. 752, 753 (presumed appropriateness of broad nonteaching, nonclerical unit); Houghton Lake Comm Schools, 1980 MERC Lab. Op. 603, 605 (bus employees combined with custodial-maintenance); with South Redford School Dist, 1966 MERC Lab. Op. [160] 162-163 (refusal to exclude food service employees from nonteaching unit); and Union School Dist of Jackson, 1966 MERC Lab. Op. 30, 32-35 (refusal to permit craft severance). As illustrated by the above cases, the Commission has always found instructional units separate from support, auxiliary, or noninstructional employees. See also Lansing School Dist, 1989 MERC Lab. Op. 160, 167 (refusal to sever hearing interpreters from paraprofessional unit and place with teaching employees). To further the policy of favoring the broader unit, the Commission will in appropriate cases permit consolidation of separate units of support or nonteaching employees, as in Van Buren PS, 1990 MERC Lab. Op. 691, 694-695. Thus, we reject the position of the College that the unit sought in this case is too broad or diverse and does not share a community of interest. [1994 MERC Lab. Op. 966-967.] [8] Michigan Ass'n of Public Employees v. AFSCME Council 25, supra.