Metropolitan Council 23 v. Redford Township , 70 Mich. App. 575 ( 1976 )

Per Curiam.

On September 25, 1974, the Michigan Employment Relations Commission (the Commission) conducted a representation election among Redford Township employees who were designated as foremen. The election was held pursuant to a consent agreement entered into by Metropolitan Council 23 of the American Federation of State, County and Municipal Employees (the Union) and Bill Robins, the then township supervisor. The Union was declared winner of the election.

The township filed objections to the election with the Commission challenging the authority of the supervisor to consent to an election and objecting to the methods by which challenged ballots were resolved.

The Union filed a motion to dismiss. The Commission concluded that the township’s failure to serve its objections to the election on the Commission and the Union within five days precluded consideration of the objections on the merits. The Commission ordered that the Union be certified as the bargaining representative of the designated unit of township employees.

The township appeals from the decision of the Commission and from a subsequent denial of a motion for reconsideration. This appeal being improperly accepted as an appeal as of right, we hereby grant leave to appeal from the decision and order of the Commission. International Union of Operating Engineers, Local 547, AFL-CIO v Sinai Hospital of Detroit, 64 Mich App 18, 20-21; 234 NW2d 772 (1975).

In refusing to hear the township’s objections to the election, the administrative law judge relied upon MERC Rule 49.1.¹ The rule provides that objections to the conduct of a representation election may be filed within five days after the results have been tabulated and furnished to the parties. Copies of the objections must be filed with the Commission and served upon each of the other parties.

In the instant case, the township’s objections were properly filed with the Commission but a copy was not served upon the Union. The Union received actual notice when the notice of hearing was sent by the Commission.

The Commission and the Union contend that the five-day notice requirement is jurisdictional and that failure to comply with the rule precludes consideration of the objections on the merits.²

We are faced with the competing considerations of the need for speedy and efficient resolution of representation issues and the policy that such elections be fairly and democratically held. In its brief, the township has raised substantial questions as to the fairness and legality of the election herein contested. We too view with some skepticism the validity of the consent agreement and the means by which the challenged ballots were resolved. In this case, the policy that elections be fairly and democratically held far outweighs the need for speedy and efficient resolution of the representation issue.

We conclude that the Commission abused its discretion in failing to consider the merits of the township’s objections. The Union had actual notice of the objections well in advance of the hearing date, and no claim of prejudice has been raised. We find the five-day notice rule to be nonjurisdictional. The objections should have been heard. Cf. Michigan Employment Security Commission v Wayne State University, 66 Mich App 26; 238 NW2d 191 (1975).

Reversed and remanded for further proceedings. No costs.

1 Rule 49.1 (1968 AACS, R 423.449[1]) provides:

"Within 5 days after the election results have been tabulated and furnished to the parties, excluding Saturdays, Sundays, and legal holidays, an interested party may file objections to the conduct of the election or to conduct improperly affecting the results of the election. Objections shall be in writing and shall contain a statement of facts upon which the objections are based and the reasons for the objections. A signed original and 4 copies of the objections shall be filed with the board, and the party filing objections shall at the same time serve a copy upon each of the other parties, with proof of service to the board.”

2 The case relied upon by the Union, National Labor Relations Board v Conlon Bros Mfg Co, 187 F2d 329 (CA 7, 1951), is distinguishable. There, the objections were not filed with the Board within the proper period. Moreover, even late filing with the Board does not bar consideration on the merits in all cases. See National Labor Relations Board v Fresh’nd-Aire Co, 226 F2d 737 (CA 7, 1955), Schmerler Ford, Inc v National Labor Relations Board, 424 F2d Í335, 1338 (CA 7, 1970).