Wayne County Library Board v. Wayne County Board of Commissioners , 78 Mich. App. 240 ( 1977 )

78 Mich. App. 240 (1977) 259 N.W.2d 440

WAYNE COUNTY LIBRARY BOARD
v.
WAYNE COUNTY BOARD OF COMMISSIONERS

Docket No. 77-445.

Michigan Court of Appeals.

Decided September 8, 1977.

Virtue & Carpenter, P.A., and Alex Lebedeff, for the Wayne County Library Board.

Aloysius J. Suchy, Corporation Counsel, and Joseph P. Girolamo, Assistant Corporation Counsel, for the Wayne County Board of Commissioners.

Zwerdling & Maurer (by George B. Washington), for Council 23, American Federation of State, County and Municipal Employees.

Before: R.M. MAHER, P.J., and N.J. KAUFMAN and F.J. BORCHARD,^[*] JJ.

In lieu of leave to appeal, remanded to the Michigan Employment Relations Commission, 402 Mich ___.

N.J. KAUFMAN, J.

Plaintiff appeals^[1] from a decision and order of the Michigan Employment Relations Commission (hereinafter referred to as MERC) denying its petition for a determination that it is the separate employer of its library employees and concluding that defendant shall remain an employer for collective bargaining purposes.

The Wayne County Library Board was created in 1943 by resolution of the Wayne County Board of Commissioners. It is the governing body of the Wayne County Federated Library System. The library was established in 1966 as a systems library and the board was designated as the system board under the State Aid to Public Libraries Act, 1965 PA 286, as amended (MCLA 397.501 et seq.; MSA 15.1791[101] et seq.).

The library operates through the funds that are appropriated to it by the Board of Commissioners upon recommendation of the Wayne County Board of Auditors from the Wayne County general fund. The library can spend only that amount. The appropriation to the library is on a line-item basis. If the library wants to shift money from one category to another, it must make a request to the Board of Auditors which makes a recommendation to the Board of Commissioners for an amendment to the budget. Following the Board of Auditors' recommendations, the Board of Commissioners takes whatever action it deems appropriate.

The library's budget is almost wholly supplied by funds which are not under the direct control of the Board of Commissioners but of the Library System Board. Only about 5% of the library's funds are supplied directly by the county. However, all money that the library receives is transferred to the Wayne County Treasurer.

Since the library was established as a systems library in 1966, library employees have been hired and classified by the county Civil Service Commission and have been included in bargaining units with other county employees for all purposes. They are paid pursuant to rates set by the Civil Service Commission and confirmed by the Board of Commissioners. Non-probationary employees have the right to appeal their discharges to the Civil Service Commission. The procedure for filling job vacancies in the library is for the library to make a requisition through the Civil Service Commission and get concurrent approval of the funds by the Board of Auditors.

On July 22, 1975, the Wayne County Supervisory Employees' Association petitioned MERC, pursuant to § 12 of the public employment relations act (hereinafter referred to as PERA), MCLA 423.212; MSA 17.455(12), to add to its bargaining unit of supervisory employees a number of classifications previously excluded, including the position of Assistant County Librarian of the Wayne County Federated Library System.

A consent election was set for September 10, 1975.^[2] On August 29, 1975, the chairman of the County Public Library Board, in his capacity as chairman of the board of the Wayne County Federated Library System, wrote to MERC, requesting a formal hearing concerning the board's possible status as a "public employer" separate from the county. On May 10, 1976, MERC entered its decision and order, concluding inter alia, "that effective collective bargaining for the employees of the Library should remain in the hands of the County rather than solely in the Library System Board". Plaintiff appeals from that determination.

Increasingly, private sector principles are being used to aid in the development of public sector labor law. Michigan is one of the states adopting this approach. Edwards, The Emerging Duty to Bargain in the Public Sector, 71 Mich. L Rev 885, 932 (1973).

So it is to a case from the private sector, under the National Labor Relations Act, that we turn for assistance in formulating the precise nature of the issue before us. We must resolve whether the board possesses sufficient indicia of control over library employees to be considered the sole employer of them. The United States Supreme Court has held that to be a factual question, Boire v Greyhound Corporation, 376 U.S. 473, 481; 84 S. Ct. 894; 11 L. Ed. 2d 849 (1964).

As to a factual issue, MERC's determination is subject to only limited judicial review:

"The findings of the board with respect to questions of fact if supported by competent, material and substantial evidence on the record considered as a whole shall be conclusive." MCLA 423.23(e), (f); MSA 17.454(25) (e), (f).

This standard is in conformance with Const 1963, art 6, § 28, and § 106 of the Administrative Procedures Act (MCLA 24.201 et seq.; MSA 3.560(101) et seq.). See MERC v Detroit Symphony Orchestra, Inc, 393 Mich. 116, 121; 223 NW2d 283 (1974), Michigan Counsel No 55, AFSCME v Chesaning, 62 Mich. App. 157; 233 NW2d 511 (1975), Van Buren Public School District v Wayne Circuit Judge, 61 Mich. App. 6; 232 NW2d 278 (1975).

We find that the MERC findings are supported by "competent, material and substantial evidence on the record considered as a whole".^[3] As reasoned by MERC, "* * * the existence of separate revenue for the Library is alone insufficient for a determination of separate public employer status". This Court cannot ignore the multitudinous evidence showing that the Board of Commissioners possesses a significant degree of economic control over the library employees. To hold otherwise would result in unnecessary fragmentation of bargaining units and proliferation of public employers which would unduly burden collective bargaining. In addition, a contrary holding would not effectively secure the rights of public employees as guaranteed by PERA.

The decision and order of MERC is therefore affirmed.

Affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.

[1] On June 1, 1976, plaintiff filed an application for leave to appeal with this Court. This Court entered an order denying plaintiff's application on September 30, 1976. Subsequently, on October 21, 1976, plaintiff filed an application for leave to appeal with the Supreme Court. On January 26, 1977, the Supreme Court remanded this case to this Court for consideration as on leave granted, 399 Mich. 823 (1977).

[2] The assistant county librarian was included in the unit.

[3] We recognize, as does MERC, that the board is "also an employer of the same employees and entitled to have a representative at the bargaining table when its employees are the subject of discussion or negotiations." See AFSCME v Michigan Dept of Health, 78 Mich. App. 416; 260 NW2d 115 (1977).