Michigan Educational Support Personnel Ass'n v. Southfield Public Schools

M. J. Kelly, J.

(dissenting). I agree that the regular substitute custodians are "employees” within the meaning of the public employment relations act (PERA), MCL 423.201 et seq.; MSA 17.455(1) et seq., and should thus be awarded collective bargaining rights. I do not, however, agree that these employees belong in the same bargaining unit representing the regular custodians.

At oral argument, counsel for the school system observed that the strangest element in this case is MERC’s failure to distinguish or even mention the strikingly similar case of Jackson Public Schools, 1983 MERC Lab Op 579, aff'd JCEA Affiliates Ass’n v Jackson Public Schools (Docket No. 72370, decided August 4, 1984 [unreported]). In Jackson Public Schools, MERC determined that "standby” school district bus drivers should not be included in the same bargaining unit with regular drivers:

"The record establishes that the standbys in this case are employed on an on-call substitute basis only; may refuse assignments; are paid at a different rate than regular employees; receive no fringe benefits; and work a varying number of hours, depending on their interest and the length of their employment. On the basis of these factors, we find the standby drivers and standby riders to be casual employees lacking a sufficient relationship to the bargaining unit to justify their inclusion in the unit.” 1983 MERC Lab Op 583.

In City of Zeeland, 1980 MERC Lab Op 765, 771, MERC was even more emphatic against the inclusion of "special” police officers in the same unit with- regular police officers and part-time officers working regular schedules:

"In the instant case, individual officers are not scheduled. One night shift per week plus other open time is available to them and offered on the basis of seniority. In fact, the most senior special officer has worked less than another officer by his own choice. Except for the Saturday night shift these three officers work only when substituting for regular officers. They are not regularly scheduled part-time employees, but substitute, on-call employees. They are similar to the substitute teachers discussed in Waterford Schools, [1977 MERC Lab Op 697] and Lansing School District, [1978 MERC Lab Op 453] in that they have no regularly scheduled days, they work as substitutes for regular employees, they may be called at any time, and may refuse an assignment, in which case, the Employer offers the assignment to another substitute. We find, therefore, on the facts of this case, that the special officers are not regularly scheduled part-time employees but are substitute employees subject to the principles we have enunciated regarding substitute teachers in Waterford Schools, supra. Accordingly, they may not be included in the same unit with full-time or regularly scheduled part-time employees.”

MERC has been consistent in its exclusion of substitute employees from bargaining units representing regular employees. See Kingston Community School, 1982 MERC Lab Op 506 (substitute bus drivers); Waterford School Dist, 1977 MERC Lab Op 697 (substitute teachers).

The factors compelling MERC to exclude substitute employees from the bargaining units of regular employees are present in the instant case. These substitute custodian employees are on-call, irregularly scheduled, and have the option of refusing work. Moreover, they are not entitled to fringe benefits, as are the regular employees. I believe that, on this record, the employment interests of the two groups of employees are so antagonistic that inclusion in the same bargaining unit cannot be justified. As is evidenced by the 1982-1984 MESPA Collective Bargaining Agreement, a priority of the regular employees is to limit the number of hours of work made available to substitute employees. This goal protects the continued employment of the regular employees and is diametrically opposed to the substitutes’ interest in expanding the hours available to them so as to obtain paychecks suitable to support themselves without resort to other sources.

Furthermore, while I acknowledge that our opinion in the Jackson appeal carries no precedential weight, since it is unpublished, I am persuaded by its rationale. In that case, we approved MERC’s policy of excluding substitute or on-call employees from bargaining units of regular employees because it insured the likelihood that members of the same unit would be able to agree among themselves on the priorities of their collective bargaining demands. We noted that substitute employees will generally have little reason to be concerned with fringe benefits, grade levels of pay, or seniority rights, and that their primary concern is with the standard rate of pay for substitute employees. Substitutes would thus have little incentive to compromise on entry level rates of pay in order to improve the fringe benefit package or the grade levels.

I would hold that MERC’s finding in this case that the substitute and regular employees could appropriately be included in the same bargaining unit is not supported by competent, material and substantial evidence and I would set aside the certification of MESPA as the substitute custodians’ representative.