Court of Appeals Gives Unions Greater Latitude to Organize Department Heads

In Faust Public Library v. AFSCME Local 25, Docket No. 381467 (July 23, 2015), the Michigan Court of Appeals held that the Michigan Employment Relations Commission (MERC) properly determined the head of the Library's children services department was a non-supervisory position and, therefore, a member of the petitioned-for collective bargaining unit. In doing so, the Court of Appeals deferred to MERC's finding that the department head never disciplined or recommended discipline, was not involved in interviewing or hiring employees, and was never told that she was expected to participate in hiring, firing, or disciplining employees. In light of its determination that the department head was not a supervisory employee, the Court of Appeals further found that the Library could present evidence on whether two of its other department heads were also non-supervisory bargaining unit positions. The Court of Appeals remanded that portion of the case to MERC for further consideration.

The likely consequence of Faust Public Library is that the decision will encourage unions to undertake greater efforts to include department heads into bargaining units either during an initial union organizing campaign, or to accrete department heads into an already recognized bargaining unit through the unit clarification process.

While a bargaining unit determination is fact-specific, Faust Public Library underscores the importance of ensuring that your District's department heads are delegated supervisory responsibilities such as the right to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, adjust grievances, or effectively recommend such action(s).

Simply calling an employee a "supervisor," "manager," or "department head" is insufficient to confer supervisory authority upon them. A position's delegated supervisory authority and exercise of supervisory duties are determinative. As a result, a District should be documenting, through job descriptions, job postings and otherwise, a department head's delegated supervisory authority and actual performance of delegated supervisory duties in the event his/her supervisory status is called into question.

Developing documentation clearly delegating supervisory authority to an employee, and demonstrating an employee's actual exercise of supervisory duties, are a District's most persuasive evidence in response to a union's claim that a department head or other supervisory position belongs in a bargaining unit.

If you have any questions about the Faust Public Library decision or how your District may effectively delegate and document the supervisory authority of its employees, please contact Kurt Graham at (616) 608-1144 | kgraham@clarkhill.com or your Clark Hill Education Law attorney.