DEPARTMENT OF LICENSING AND REGULATORY AFFAIRS

EMPLOYMENT RELATIONS COMMISSION

GENERAL RULES

(By authority conferred on the director of the department of licensing and regulatory

affairs by sections 7, 9a, and 27 of 1939 PA 176, MCL 423.7, 423.9a, and 423.27;

sections 12 and 14 of 1947 PA 336, MCL 423.212 and 423.214; sections 2a and 6 of

2016 PA 194, MCL 423.202a and 423.206; and Executive Reorganization Orders 1996-2,

2011-4, and 2011-5, MCL 445.2001, MCL 445.2030 and MCL 445.2031)

PART 1. GENERAL PROVISIONS

R 423.101 Definitions; A to C.

Rule 101. As used in these rules:

(a) “Administrative law judge” means a designee authorized by the commission to

perform hearing functions and duties under LMA and PERA in the commission’s labor

relations division.

(b) "Applicant" means a person, public employer, labor organization or duly authorized

agent or party representative thereof who files an application for fact finding under LMA

or PERA.

(c) “Bargaining representative” means the labor organization that represents the public

school employees alleged to have been engaged in an illegal strike or whose public

employer is alleged to have locked the public school employees out of the workplace in

violation of section 2 of PERA.

(d) “Bureau” means the bureau of employment relations which is the administrative

component of the commission.

(e) "Charge" means the document containing the information specified in R 423.151.

(f) "Charging party" means a person, public employer, labor organization or duly

authorized agent or party representative thereof, who files a charge alleging an unfair

labor practice under LMA or PERA.

(g) "Commission" means the employment relations commission as established under

section 3 of LMA, MCL 423.3.section 3 of LMA, MCL 423.3.

History: 2002 AACS; 2014 AACS; 2017 AACS.

R 423.102 Definitions; D to L.

Rule 102. As used in these rules:

(a) “Designee” means a commission member or an employee designated by the

commission to perform functions and duties under LMA and PERA.

(b) “Fact finder” means a commission member, an employee, or other individual,

whether or not a member of the commission’s staff, designated by the commission to

perform fact finding functions and duties under section 25 of LMA.

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(c) “Initiating party” means the party that filed a notice of public school strike and is

the public school employer, the superintendent of public instruction, or the parent or legal

guardian of a child who is enrolled in the school district at which a strike by 1 or more

public school employees is alleged to have occurred in violation of section 2 of PERA.

(d) “LMA” means 1939 PA 176, MCL 423.1 to 423.30.

History: 2002 AACS; 2014 AACS; 2017 AACS.

R 423.103 Definitions; M to P.

Rule 103. As used in these rules:

(a) "Mediator" means the commission, a commission member, or an employee

designated by the commission to perform the functions and duties of mediation under

LMA and PERA in the commission's mediation division.

(b) "PERA" means the 1947 PA 336, MCL 423.201 to 423.217.

(c) "Petition" means the document containing the information specified in R

423.141.

(d) "Petitioner" means a person, public employer, labor organization or duly

authorized agent or party representative thereof who files a petition under LMA or

PERA.

History: 2002 AACS; 2014 AACS.

R 423.104 Definitions; R.

Rule 104. As used in these rules, “respondent” means a person, public employer,

employer or labor organization charged with having engaged in or engaging in unfair

labor practices under LMA or PERA as set forth in a complaint issued by the

commission.

History: 2002 AACS; 2014 AACS.

R 423.105 Division of commission.

Rule 105. (1) The commission shall exercise its mediation functions under

LMA and PERA through its mediation division.

(2) The commission shall exercise its labor relations functions under LMA and

PERA through its labor relations division.

History: 2002 AACS.

R423.106 Party representative.

Rule 106. A party to a proceeding before the Michigan employment relations

commission may be represented by an attorney or non-attorney, or other agent of his or

her choice, or appear on his or her own behalf.

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History: 2014 AACS.

PART 2. MEDIATION OF LABOR DISPUTES

R 423.121 Mediation functions.

Rule 121. A mediator shall bring the parties together voluntarily under such

favorable auspices as will tend to effectuate the settlement of the dispute; but the

mediator shall not have any power of compulsion in mediation. At the request of 1

of the parties, or when the commission believes that mediation may be of assistance

in resolving a dispute between either a public or private employer and employees, the

commission on its own motion may, or at the direction of the governor shall, take steps

that it deems expedient to effect a voluntary, amicable, and expeditious adjustment and

settlement of the differences and issues between the employer and employees.

History: 2002 AACS.

R 423.122 Confidential information.

Rule 122. Information disclosed by a party to a mediator in the performance

of mediation functions shall not be divulged voluntarily or by compulsion. All files,

records, reports, documents, or other papers received or prepared by a mediator while

serving as a mediator shall be classified as confidential. The mediator shall not produce

any confidential records of, or testify in regard to, any mediation conducted by the

mediator, on behalf of any party to any cause pending in any type of proceeding.

History: 2002 AACS.

R 423.123 Mediation conferences.

Rule 123. (1) A mediator may hold separate or joint conferences with parties or

their representatives, and the conferences shall be private unless otherwise mutually

agreed by the parties and the mediator.

(2) A mediation conference may be conducted at a date, time, and place agreed to

by a mediator and the parties or their representatives, except that the mediator may

designate the date, time, and place of a conference.

History: 2002 AACS.

R 423.124 Strike elections.

Rule 124. A strike election conducted by the commission under sections 9 and 9a

of LMA, MCL 423.9 and MCL 423.9a, shall be governed by the rules in part 4 as

applicable. Sections 9 and 9a shall be complied with as a condition to a strike election.

Within 48 hours after the close of a strike election, excluding Saturdays, Sundays, and

legal holidays, a party may file objections to the conduct of the election or to conduct

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improperly affecting the results of the election. Objections shall be in writing and shall

contain a statement of facts and the reasons therefor upon which the objections are based.

A party shall file a signed original and 4 copies of the objections with the commission,

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 commission. This rule does not apply to public

employees as defined in section 1(e) of PERA, MCL 423.201e.

History: 2002 AACS; 2014 AACS.

PART 3. FACT FINDING

R 423.131 Definitions.

Rule 131. As used in this part:

(a) "Advocate" means an individual who has represented management or a union in

collective bargaining or labor relations in the 5 years before his or her selection by the

commission as a nominee for chair of a fact finding panel under MCL 423.25 and R

423.135. Advocate also means an individual, including an attorney, who is associated

with a firm or entity that has represented management or a union in collective bargaining

or labor relations in the 5 years before his or her selection by the commission as a

nominee for chair of a fact finding panel under section 25 of LMA, MCL 423.25, and R

423.135.

(b) "Commission's panel of fact finders" means those members who are appointed to

the Michigan employment relations commission panel of fact finders by the commission.

(c) "Dispute" means a disagreement regarding mandatory subjects of bargaining

concerning rates of pay, wages, hours of employment, or other conditions of

employment.

History: 2002 AACS; 2014 AACS.

R 423.132 Petitions; initiation by commission of fact finding.

Rule 132. (1) Pursuant to section 25 of LMA, MCL 423.25, a petition for fact

finding may be filed by a public employer, a collective bargaining representative of

public employees, or, if no representative has been designated or selected, by a majority

of any given group of public employees. The petition shall be signed by an authorized

agent of the petitioner. The petitioner shall file an original and 3 copies with the

commission and shall serve a copy of the petition on the other party or its representative.

Petitions for fact finding shall be filed pursuant to R 423.181 and service shall be

pursuant to R 423.182.

(2) The applicant may withdraw the petition with the consent of the commission or

bureau director.

(3) The commission, on its own motion, may institute fact finding if it is apparent to

the commission that matters in disagreement between the parties may be more readily

settled if the facts involved in the disagreement are determined and publicly known. If the

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commission institutes fact finding, the commission may suspend the fact finder selection

process in these rules and may appoint a fact finder on its own motion.

History: 2002 AACS; 2014 AACS.

R 423.133 Contents of petitions.

Rule 133. (1) The petition shall contain all of the following information:

(a) The name and address of the public employer involved and the name and

telephone number of its principal representative.

(b) The name and address of the collective bargaining representative involved; or, if

there is no collective bargaining representative, the name and address of the principal

representative of the majority of the members of a given group on whose behalf the

petition is being filed.

(c) A description of the certified or recognized collective bargaining unit, or, if

there is no such unit, a description of the given group.

(d) The approximate number of employees in the unit or given group.

(e) Contract expiration date.

(f) A statement that the applicant has attempted to engage in good-faith collective

bargaining and mediation and that the parties have not succeeded in resolving the matters

in dispute.

(g) A statement that the applicant has exhausted the contractual grievance

procedure, if applicable.

(h) A listing of any unresolved issue in dispute and the related facts.

(i) A statement of reasons why publicizing the facts and recommendations would

assist in resolving the issues in dispute.

(j) If applicable, the name of the fact finder from the commission's panel of fact

finders that the parties have mutually selected.

(k) The name and address of the petitioner and the signature and telephone number

of the persons executing the petition.

(2) The petition may include a request for combined fact finding with another

bargaining unit involving that same employer.

History: 2002 AACS; 2014 AACS.

R 423.134 Answers.

Rule 134. (1) A party upon whom a petition has been served shall file an answer to

the petition within 10 days from its service, unless notified by the commission that the

circumstances require a specified shorter period of time to file an answer. Upon proper

cause shown, the commission may extend the time for filing an answer, or, in exceptional

circumstances, may waive the requirement for an answer.

(2) The answer shall specifically admit, deny, or explain each of the allegations in

the petition, shall contain a statement of the position of the answering party, and shall be

signed by the answering party or authorized agent.

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(3) The answer and 3 copies shall be filed with the commission. The party filing an

answer concurrently shall serve a copy of the answer on the petitioner or its agent, and

file proof of service with the commission.

(4) A party on whom a petition has been served may rely on the filing by the

opposing party. The proposed withdrawal of the initial petition shall not act to terminate

the process unless otherwise ordered by the commission for good cause, which may

include the consent of the parties.

History: 2002 AACS; 2014 AACS.

R 423.135 Fact finder selection.

Rule 135. (1) The commission shall establish and appoint a panel of fact finders to

be known as the Michigan employment relations commission panel of fact finders. Panel

members shall be appointed for indefinite terms, and shall be impartial, competent, and

reputable citizens of the United States and residents of the state. The commission may at

any time appoint additional members to the panel of fact finders and may remove existing

members with or without cause.

(2) If a commission-nominated fact finder is an advocate as defined in R 423.131,

either party may notify the other party and ask the commission to delete the fact finder's

name from the list of nominees and provide the parties with the name of a fact finder who

is not an advocate. The commission shall provide the parties with another fact finder's

name and resume. If, within 10 days, a fact finder is not selected from the list to which

there has been no objection, then the commission may select a fact finder.

(3) The parties may mutually agree upon the selection of a fact finder from the

commission's panel of fact finders or a fact finder who is eligible for membership on that

panel and notify the commission of their selection when the petition is filed.

(4) A fact finder's resume shall include all of the following information:

(a) A brief summary of the fact finder's educational and professional background.

(b) A list of the fact finder's past 5 years of employment.

(c) A list of the fact finder's commission arbitration awards and fact finding reports.

(d) A list that shows the percentage of advocacy work, if any, which was performed

by the fact finder and the fact finder's firm on an annual basis for the past 5 years.

(5) The commission or bureau director may determine after consultation with the

parties that it is appropriate to appoint the same fact finder to hear more than 1 fact

finding petition involving that same employer.

(6) If it appears that there is undue delay in the fact finder selection process or there

is a delay for reasons the commission considers inappropriate, the commission or bureau

director may appoint a fact finder on its own motion.

(7) The commission or bureau director may make administrative decisions related

to the appointment of a fact finder.

History: 2002 AACS; 2014 AACS.

R 423.136 Hearings; fact finder powers.

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Rule 136. (1) If it appears to the commission that a hearing is warranted, then the

commission shall appoint a fact finder and serve upon each of the parties a notice of the

person appointed.

(2) A fact finder shall conduct a prehearing conference within 15 days of the fact

finder's appointment.

It may be conducted by telephone conference call. The

commission may waive the requirement for a prehearing conference in exceptional

circumstances. The fact finder shall also issue and serve, upon each of the parties, a

notice indicating either of the following:

(a) A hearing date.

(b) A hearing is not necessary, and a fact finding report shall be based on the

exhibits and briefs filed by the parties.

(3) The fact finder may amend or withdraw a notice of hearing at any time before

the start of the hearing.

(4) Before the hearing, the fact finder may require the parties to prepare and submit

a prehearing statement identifying the issues in dispute and each party’s position on each

issue along with copies of any exhibits on which the parties intend to rely during the

hearing. The fact finder may permit the submission of rebuttal or response statements

and exhibits. The fact finder may also permit the submission of additional exhibits or

evidence during the hearing.

(5) The hearing shall be public, but for good cause shown, may be limited to the

immediate parties by the fact finder, who shall inquire into pertinent matters necessary to

allow the issuance of recommendations concerning the dispute. The fact finder may

follow the procedures of section 11 of LMA, MCL 423.11.

(6) A fact finding hearing shall be limited to 2 days but may be extended for good

cause if determined by the bureau director in consultation with the fact finder that

additional hearing days are necessary.

(7) A fact finder may grant an application for subpoenas, subpoena witnesses,

administer oaths and affirmations, examine witnesses, receive relevant testimony and

evidence, rule upon offers of proof, and introduce into the record documentary or other

evidence. The fact finder may determine the weight, credibility, and sufficiency of

evidence submitted by the parties.

(8) No official record will be made unless the parties request one, in which case, the

cost of a court reporter and any other costs associated with the preparation of the record

shall fully be the responsibility of the parties pursuant to R 423.138.

(9) The fact finder has the authority and powers given to the administrative law

judge in R 423.172 (1) and (2).

(10) At any time during the fact finding process, the fact finder may remand the

parties to further bargaining with a mediator if the fact finder believes it may be

conducive to obtaining a full or partial agreement.

(11) The fact finder shall not receive, consider, or refer to a recommendation from

the mediator.

(12) The fact finding hearing, including the filing of post hearing briefs, shall

conclude within 90 days after the hearing commences, absent special circumstances

warranting an extension of the deadline as determined by the bureau director in

consultation with the fact finder.

History: 2002 AACS; 2014 AACS.

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R 423.137 Fact finders' reports.

Rule 137. (1) Within 30 days after the close of the record or additional time as the

bureau director may permit, the fact finder shall file a report containing all of the

following:

(a) The names of the parties.

(b) A statement of findings of fact and conclusions upon all material issues

presented at the hearing.

(c) A final summary sheet listing the issues in dispute, the position of each party for

each issue, and recommendations with respect to each of the issues in dispute.

(d) Reasons and basis for the findings, conclusions and recommendations.

However, the parties may waive the requirements of this subdivision and the fact finder

may then issue a report containing only items in subdivisions (a), (b), (c), (e) and (f) of

this subrule.

(e) The date the report issued.

(f) The signature of the fact finder.

(2) The fact finder shall file the fact finding report and 2 copies with the

commission in accordance with commission requirements and, at the same time, serve a

copy on each of the parties.

History: 2002 AACS; 2014 AACS.

R 423.137a Expedited fact finding.

Rule 137a. Upon motion of a party or upon the commission’s own motion, the

commission may expedite the fact finding proceedings and the issuance of a fact finding

report. Prior to reaching a decision to expedite a fact finding proceeding and report, the

commission will consider the parties’ positions and other circumstances.

History: 2014 AACS.

R 423.138 Costs.

Rule 138. (1) A fact finder shall not charge more than 2 preparation days for each

day of hearing unless otherwise permitted in advance by the commission or bureau

director.

(2) The costs of subpoenas and witness fees shall be borne by the party at whose

request subpoenas are issued and at whose request witnesses appeared.

(3) A party may order a transcript of a deposition at its own expense. The party who

requests a deposition shall pay the costs for the court reporter and for a copy of the

transcript of the deposition for the fact finding hearing record.

History: 2002 AACS; 2014 AACS.

PART 4. REPRESENTATION PROCEEDINGS

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R 423.141 Petitions for elections.

Rule 141. (1) A petition for election to determine a collective bargaining

representative or a petition for decertification of a collective bargaining representative

shall be prepared on a form furnished by the commission. An original and 4 copies of the

petition shall be filed with the commission under section 12 of PERA, section 27 of

LMA, and subrule (3) of this rule.

(2) A petition for an election to determine the collective bargaining representative

or for decertification shall include, insofar as known, at least all of the following

information:

(a) The name of the employer.

(b) The address of the establishment involved.

(c) A description of the bargaining unit claimed to be appropriate.

(d) The name and address of persons or labor organizations who claim to represent

employees in the alleged appropriate unit, and brief descriptions of the contracts, if any,

covering the employees in the unit.

(e) The number of employees in the alleged appropriate unit.

(f) The name, affiliation, if any, and address of the petitioner.

(g) Any other relevant facts.

(h) Signature of petitioner or its duly authorized agent if filed by an employer.

(i) A statement that 1 or more individuals or labor organizations have presented a

claim to be recognized as the bargaining representative.

(3) Where there is a collective bargaining agreement covering employees in the

bargaining unit, a petition for election may be filed during the following periods:

(a) Where the petition covers employees of a public school district or public

educational institution and the expiration date of the collective bargaining agreement falls

between June 1 and September 30, a petition may be filed between January 2 and March

31 of the year in which the collective bargaining agreement expires.

(b) Where the petition covers public employees other than those described in

subdivision (a) of this subrule, a petition shall not be filed sooner than 150 days and not

later than 90 days before the expiration date of the collective bargaining agreement.

(c) Where the petition covers private employees under the LMA, a petition shall not

be filed sooner than 90 days and not later than 60 days before the expiration date of the

collective bargaining agreement.

(4) At the request of any party, or on the commission’s own initiative, a

representative election shall be conducted by the commission, without a showing of

interest and notwithstanding the existence of any collective bargaining agreement or

agreements, where all of the following occur:

(a) There is a new interlocal agreement for the joint exercise of power entered into

under 1967 PA 7, MCL 124.501 to 124.512; or, a new intergovernmental transfer of

functions and responsibilities under 1967 PA 8, MCL 124.531 to 124.536; or, the

creation of a new authority for the purpose of providing emergency services to

municipalities under 1988 PA 57, MCL 124.601 to 124.614.

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(b) Multiple labor organizations assert the right to represent all or a part of the

workforce or a substantial portion of the transferred employees were not previously

represented.

(c) No voluntary agreement exists.

(5) The commission shall determine the appropriate unit pursuant to R 423.146.

History: 2002 AACS; 2014 AACS.

R 423.142 Petitions for self-determination elections.

Rule 142. (1) A petition for an election to determine whether existing bargaining

units represented by a single labor organization should be merged may be filed by the

labor organization representing these units. A petition for a self-determination election

shall be prepared on a form furnished by the commission.

(2) A petition for a self-determination election shall include at least all of the

following information:

(a) The name of the employer.

(b) The address of the establishment involved.

(c) Descriptions of the bargaining units sought to be merged.

(d) The approximate number of employees in each existing unit.

(e) A statement that the petitioner is the currently recognized bargaining

representative for the units in question.

(f) The name, affiliation, if any, and address of the petitioner.

(g) Any other relevant facts.

(h) Signature of petitioner or its duly authorized agent.

History: 2002 AACS.

R 423.143 Petitions for unit clarification.

Rule 143. (1) A petition to determine the unit placement of a disputed position or

classification may be filed by the employer or by a labor organization representing an

existing bargaining unit. A petition for unit clarification shall be prepared on a form

furnished by the commission.

(2) A petition for unit clarification shall include at least all of the following

information:

(a) The name of the employer.

(b) The employer's address.

(c) The position or positions whose unit status petitioner seeks to have clarified.

(d) A statement of the clarification sought, and the reasons set out in detail with the

approximate dates the position was created or substantially changed.

(e) Whether the position whose status is to be clarified is currently included in any

bargaining unit, and, if so, a description of that unit and the name of the labor

organization currently representing that unit.

(f) A description of any bargaining unit that may be affected.

(g) The name, affiliation, if any, and address of the petitioner.

(h) Any other relevant facts.

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(i) Signature of petitioner or its duly authorized agent.

History: 2002 AACS; 2014 AACS.

R 423.144 Investigation of petitions; consent election agreements.

Rule 144. The commission or its designee shall investigate the petition. If there is

reasonable cause that a question concerning representation exists, then the petitioner and

the other parties may, with the approval of the commission or its election agent, enter into

a consent election agreement on a form furnished by the commission. The agreement

shall include a description of the appropriate bargaining unit, the payroll period to be

used in determining the employees within the appropriate unit who shall be eligible to

vote, and such other matters as the commission considers appropriate. The time, place,

and manner of the election shall be determined by the commission or its designee after

consultation with the parties.

History: 2002 AACS; 2014 AACS.

R 423.145 Showing of interest; intervenors.

Rule 145. (1) A petition for an election to determine a collective bargaining

representative, except when filed by an employer, or a decertification petition shall be

supported by a showing of interest existing at the time of the filing of the petition of at

least 30% of the employees in the unit claimed to be appropriate. A showing of interest

is not required for a self-determination election petition.

(2) Evidence of interest shall be submitted at the time of filing a petition. Unless an

original showing of interest is received within 48 hours of the filing, the petition will be

dismissed.

(3) “Intervenor”, as used in this rule, means a labor organization that seeks to

appear on the ballot.

(4) Only an employee, group of employees, individual, or labor organization is

eligible to become an intervenor to the election by filing a petition supported by a

showing of interest of not less than 10% of the employees within the proposed unit. An

intervenor may participate in all conferences and any hearings that may be held. The

signature of an intervenor is not required on a consent election agreement unless the

intervenor demonstrates to the commission that 30% or more of the employees in the unit

claimed to be appropriate wish to be represented by the intervenor, in which event, the

intervenor's signature on the consent election agreement is required. The determination

with respect to the statutory 30% or an intervenor's 10% showing of interest is an

administrative action and shall be made exclusively by the commission or its agent.

Once a consent election agreement has been signed by all required parties known to the

commission, an interested party shall file a written request to intervene and provide a

showing of interest within 2 business days of the date of the consent. The date of the

consent is the date on which the last required signed copy of the consent agreement is

received by the commission. Intervention may be permitted after 2 business days with

the agreement of all parties and the approval of the commission or its agent or with the

approval of the commission upon a showing of good cause. An intervenor who has not

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less than a 10% showing of interest but less than 30%, may file a motion with the

commission and serve a copy on each of the other parties within 48 hours after a consent

election agreement is signed alleging reasons for disallowance of the consent election

agreement and requesting a hearing. The commission, or its agent, shall determine

whether the petition establishes good cause for holding a hearing. If the commission or

its agent decides to hold a hearing on the petition, then the consent election agreement

shall be suspended pending disposition of the case by the commission.

(4) Intervention will not be allowed after the close of the hearing without the

agreement of all parties and the approval of the commission or its agent, or the approval

of the commission upon a showing of good cause.

History: 2002 AACS; 2014 AACS.

R 423.146 Hearing on election petition.

Rule 146. (1) If a consent election agreement is not executed by the required

parties, the petition for election shall be referred to an administrative law judge, who,

after due notice, may hold a hearing for the purpose of gathering facts on the matters in

dispute.

R 423.171, R 423.172, R 423.173, and R 423.174 apply to all hearings

conducted under this rule. A notice of hearing or other notice shall be served upon all

interested parties including any intervenor. The notice of hearing shall set the time, date,

and place of the hearing, and, unless by agreement of the parties or in case of special

circumstances, the time shall be not less than 5 days after service of the notice.

(2) The commission or its agent may consolidate representation and unfair labor

practice proceedings for hearing and decision.

(3) In addition to the duties and powers enumerated in R 423.172, an administrative

law judge presiding over a hearing involving an election petition may take evidence

regarding issues not specifically raised by the parties.

(4) After the hearing closes, or where there is no material dispute of fact, the

commission shall determine the matters in dispute and direct an election, dismiss the

petition, or make other disposition of the matter as the commission deems appropriate.

The commission may reopen a proceeding under R 423.166 or R 423.167.

(5) If a motion for reconsideration or rehearing of a commission order directing an

election is filed, then the commission, during its consideration of the motion, shall

conduct the election under its original direction, count the ballots, and issue a

certification of results or representation unless a party makes a written request to stay the

election or impound the ballots, or both, and the commission determines that it would not

effectuate the purpose of the statute to conduct an election or count the ballots, or both,

while the motion is pending.

(6) If an appeal of a commission order directing an election is filed with a court,

then the commission shall conduct the election under its original direction, count the

ballots, and issue a certification of results or representative unless a stay is issued by the

court.

History: 2002 AACS; 2014 AACS.

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R 423.147 Elections; general procedures.

Rule 147. (1) An election shall be conducted under the supervision and direction of

a designee of the commission and shall be by secret ballot.

(2) At least 7 days before the date of an election, or the date of the mailing of the

ballots in a mail ballot election, excluding Saturdays, Sundays, and legal holidays, the

employer shall submit to the commission and other interested parties a list of the names

and addresses of all eligible voters in alphabetical order. This requirement may be

modified by mutual agreement of the parties, or by order of the commission, or its agent.

(3) A sample ballot and notice of election, setting forth the date, time, place, and

purpose of the election shall be posted in a prominent place or places, as the commission

or its designee shall determine, in the employer's establishment, not less than 5 days

before the date of the election, or the date of the mailing of the ballots in a mail ballot

election, unless modified by mutual agreement of the parties or by order of the

commission or its designee.

(4) The commission may conduct an election in whole or in part by mail ballot by

order of the commission, or as determined by its designee after consultation with the

parties.

History: 2002 AACS; 2014 AACS.

R 423.148 Observers and challenges.

Rule 148. (1)

The parties to the election may each designate

a

representative, but not a supervisor or full-time labor organization representative

unless by mutual agreement of the parties, to observe that ballots are properly cast and

votes properly counted. Observers are subject to such reasonable limitations as the

election agent may prescribe.

(2) An authorized observer, the commission, or the election agent, before the

time the voter's ballot is cast, or before the time the ballots are counted in the case of a

mail ballot election, may challenge for good cause the eligibility of any person to

participate in the election. A person challenged as an ineligible voter shall be permitted

to vote in secret, and the election agent shall set aside the ballot, with appropriate

markings. If it is determined by the commission or its election agent that the challenged

ballot, or ballots, is decisive of the result, then the commission shall determine the

merits of any challenged ballot and decide whether or not the person is an eligible voter.

History: 2002 AACS.

R 423.149 Ballot boxes and ballots.

Rule 149. (1) The commission’s designee shall examine the ballot boxes before the

opening of the polls and in the presence of any observers. The boxes shall be sealed at the

opening of the polls.

(2) The commission’s designee shall privately assist any voter in marking a ballot

when the voter states under oath, duly administered by the election agent, that the voter is

incapable of marking the ballot because of physical disability or inability to read or write.

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(3) A voter shall designate a choice on the ballot by making a cross (X) or check

mark (√) in the selected circle or block. The intent of the voter shall be followed in the

marking of the ballot. If the ballot is defaced, torn, marked in a manner that is not

understandable, or identifies the voter, then the ballot shall be declared void. If a ballot is

inadvertently spoiled by a voter, it may be returned to the election agent, who shall

provide another ballot. The spoiled ballot shall be preserved for the time of counting.

(4) A voter shall fold the ballot so that no part of its face is exposed, and, on leaving

the polling booth, shall personally deposit the ballot in the ballot box. If the election is

continued for more than 1 period, the ballot box shall remain sealed until the subsequent

opening of the polls, and shall so remain in possession of the election agent until time for

the counting of the ballots.

(5) An absentee ballot shall be mailed to an individual eligible to vote upon written

notice to the commission of the inability to be present at the election because of sickness,

physical disability, military leave or other circumstance as agreed upon by the parties to

the election with the approval of the commission or designee. The voted ballot shall be

mailed or delivered by the absentee voter to the commission not later than the designated

deadline date and time using the official envelopes provided for this purpose. The

envelopes containing the ballots shall be opened at the time of the counting of the ballots.

(6) In a mail ballot election, to be valid, each voted ballot shall be personally and

individually mailed or delivered by the voter to the commission in the official envelopes

provided for this purpose. The time for counting the ballots shall be determined by the

commission’s designee.

History: 2002 AACS; 2014 AACS.

R 423.149a Counting of ballots; election results.

Rule 149a. The commission’s designee shall count the ballots as soon after the

polls have closed as practicable, or as provided under R 423.149(6). The commission’s

designee shall announce the results of the election as soon as the complete results have

been tabulated. The election agent shall furnish to the parties a tabulation of results

signed by the observers and the election agent. The commission shall furnish the parties

with a certification of representative or results.

History: 2002 AACS; 2014 AACS.

R 423.149b Objections to elections; rerun and runoff elections.

Rule 149b. (1) 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

commission, and the party filing objections shall at the same time serve a copy upon each

of the other parties to the election with proof of service to the commission.

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(2) R 423.171, R 423.172, R 423.173, and R 423.174 shall apply to all hearings

conducted under this rule. After the close of the hearing, the commission shall issue

its decision with regard to the challenges or objections, or both.

(3) If the commission orders that any challenged ballots be opened and counted,

an amended tabulation of election results and an appropriate certificate of results of

the election shall be issued.

(4) If the commission sustains objections to an election, it may direct a new

election, to be held at such time and under such circumstances and conditions as it

deems appropriate. For a runoff or rerun election, the commission may maintain the

same eligibility date or establish a new eligibility date for voters.

(5) A runoff election shall be conducted without further order of the commission

when an election in which the ballot provided for fewer than 3 choices (for example, at

least 2 representatives and "neither") resulted in no choice receiving a majority of the

valid votes cast and no objections are filed as provided in this rule.

(6) Employees who were eligible to vote in the election and who are in an

eligible category on the date of the runoff election shall be eligible to vote in the runoff

election.

(7) The ballot in the runoff election shall provide for a selection between the 2

choices receiving the largest and second largest number of valid votes cast.

(8) Upon the conclusion of the runoff election, this rule shall govern, insofar as

applicable.

History: 2002 AACS.

PART 5. UNFAIR LABOR PRACTICE CHARGES

R 423.151 Filing, contents, and service.

Rule 151. (1) A charge that a person has engaged in or is engaging in an unfair

labor practice in violation of LMA or PERA, may be filed with the commission. The

charge shall, except for good cause shown, be prepared on a form furnished by the

commission. Attachments submitted with a charge shall not exceed 25 pages and shall

comply with R 423.184. An original and 4 copies of the charge shall be filed with the

commission.

(2) A charge shall include, insofar as known, all of the following information:

(a) The name, mailing address, affiliation or title, if any, and signature of a charging

party or representative.

(b) The name and mailing address of each charged party.

(c) A clear and complete statement of the facts which allege a violation of LMA or

PERA, including the date of occurrence of each particular act, the names of the agents of

the charged party who engaged in the violation or violations and the sections of LMA or

PERA alleged to have been violated.

(d) Any other information requested on the form furnished by the commission.

(3) Upon filing of a charge, the charging party shall timely and properly serve a

copy of the charge and any attachments upon the parties being charged as prescribed in R

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423.182, and shall file with the commission a statement that service was completed

pursuant to this rule.

(4) Filing and service shall be effected by the charging party within the applicable

6-month limitation period.

(5) Failure to comply with this rule may result in either rejection of a charge by the

commission or bureau director, or in dismissal of a charge without a hearing.

History: 2002 AACS; 2014 AACS.

R 423.152 Complaint.

Rule 152. After a charge is filed, the commission or an administrative law judge

designated by the commission may serve upon each named respondent a complaint, a

copy of the charge upon which the complaint is based, and a notice of hearing, or, at the

discretion of the commission or administrative law judge, a complaint, a copy of the

charge upon which the complaint is based, and a notice of prehearing conference. The

notice of hearing shall fix the place of hearing at a time not less than 5 days from service

thereof. The notice of prehearing conference shall fix the time, date, and place of

prehearing conference at a time at least 5 days from service thereof. The commission or

administrative law judge designated by the commission may effectuate service of these

documents by facsimile transmission with the permission of the person receiving the

documents.

History: 2002 AACS; 2014 AACS.

R 423.153 Amendments to charges.

Rule 153. (1) The charging party may file an amended charge before, during, or

after the conclusion of the hearing. All amendments made before or after hearing shall be

in writing and shall, except for good cause shown, be prepared on a form furnished by the

commission. An original and 4 copies of the amended charge shall be filed with the

commission and a copy served on each party. Amendments made at hearing shall be

made in writing to the administrative law judge or stated orally on the record.

(2) If a request to amend a charge is made in writing, each party opposing the

request shall file with the commission a signed original and 2 copies of its objection

within 10 days after receipt of the request to amend, and at the same time shall serve a

copy of the objection on each party.

(3) Proposed amendments to a charge that are submitted in writing shall clearly

indicate any deletions from or additions to the original charge.

(4) The commission or administrative law judge designated by the commission may

permit or deny the request to amend upon such terms as are just and consistent with due

process.

History: 2002 AACS; 2014 AACS.

R 423.154 Withdrawal of charges.

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Rule 154. (1) The charge may be withdrawn by the charging party at any time

before the issuance of a proposed decision and recommended order upon approval by the

administrative law judge, subject to review by the commission. Any party seeking

commission review of an order granting withdrawal must file an objection within 10 days

after the issuance of the order granting withdrawal.

(2) The charge may be withdrawn by the charging party following the issuance of a

proposed decision and recommended order upon approval by the commission. Upon

agreement of the parties, the commission may withhold publication of the decision and

recommended order of the administrative law judge. Final determination on publication

of the decision and recommended order shall rest solely with the commission.

History: 2002 AACS; 2014 AACS.

R 423.155 Answers.

Rule 155. (1) Each respondent may file with the commission a signed original

and 4 copies of an answer to the complaint and attached charge within 10 days after

receipt thereof, and at the same time shall serve a copy of the answer on each party.

Upon good cause shown, the commission or administrative law judge designated by

the commission may grant an extension of time in which to file the answer. Failure to

file an answer shall not constitute an admission of any fact alleged in the charge, nor

shall it constitute a waiver of the right to assert any defense.

(2) The answer shall include a specific admission, denial, or explanation of

each allegation of the complaint and attached charge, or if the respondent is without

knowledge thereof, it shall so state and the statement shall operate as a denial. An

admission or denial may be to all or any part of any allegation, but shall fairly meet the

substance of the allegation. The answer shall include a specific, detailed statement of

each affirmative defense.

History: 2002 AACS.

R 423.156 Amendments to answers.

Rule 156. (1) The commission or administrative law judge designated by the

commission may permit or require a respondent to amend the answer before or during

the hearing, or at any time prior to issuance of the administrative law judge's

recommended order, within a period of time fixed by the administrative law

judge.

(2) An original and 4 copies of the amended answer shall be filed with the

commission and a copy served on each party.

History: 2002 AACS; 2014 AACS.

R 423.157 Joinder of parties.

Rule 157. Persons having such an interest in the subject of the action that their

presence in the action is essential to permit the commission to render complete relief

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shall be made parties and aligned as charging parties or respondents in accordance with

their respective interests. If the persons have not been made parties, then the commission

or administrative law judge shall, on motion of either party, order them to appear in the

action, and may prescribe the time and order of pleading.

History: 2002 AACS.

R 423.158 Prehearing conference.

Rule 158. (1) The commission or an administrative law judge designated by the

commission may direct the parties to appear for a prehearing conference, file a position

statement, or both. The prehearing conference may resolve any matter upon which the

parties agree or which the commission or administrative law judge may determine is

proper for resolution.

(2) Failure to comply with a prehearing order may result in dismissal of the charge

or the granting of relief in favor of the charging party.

History: 2002 AACS; 2014 AACS.

PART 6. MOTION PRACTICE

R 423.161 General provisions.

Rule 161. (1) An application to the commission for an order other than that sought

for by the unfair labor practice charge shall be by motion. Examples of such motions are

set forth in R 423.162 to R 423.167.

(2) All motions made before or after hearing shall be in writing and shall state with

particularity the grounds upon which the motion is based and the relief sought.

A

motion that presents an issue of law shall be accompanied by a brief citing the

authority on which it is based. All motions and briefs made before the hearing shall be

served as provided in R 423.182.

(3) Each adverse party may file a written brief in opposition to any motion made

before or after hearing. The brief shall be filed within 10 days after service of the

motion, or within any other period as specified by the commission or administrative law

judge designated by the commission, and served as provided in R 423.182.

(4) Motions made before or after hearing shall be ruled upon without notice or oral

argument. A request for oral argument by either party shall indicate “oral argument

requested” in bold capital letters on the first page under the caption of the motion,

response, or other pleading. If the request is granted, the commission or administrative

law judge designated by the commission will serve a notice of hearing upon all parties.

(5) All motions made at hearing shall be made in writing to the administrative law

judge or stated orally on the record.

(6) All pleadings to the administrative law judge shall include 1 original, and 1

copy, unless otherwise directed.

(7) Rulings by an administrative law judge on any motion, except a motion

resulting in a ruling dismissing or sustaining the unfair labor practice charge in its

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entirety, shall not be appealed directly to the commission, but shall be considered by the

commission only if raised in exceptions or cross exceptions to the proposed decision

and recommended order filed under R 423.176.

History: 2002 AACS; 2014 AACS.

R 423.162 Motion for more definite statement.

Rule 162. If an unfair labor practice charge fails to comply with R 423.151, the

administrative law judge may by his or her own motion, or on the motion of the

respondent, order the filing of a more definite statement of the charge or an amended

charge. Respondent shall certify that it has already sought a more definite statement of

the charge from charging party before bringing its motion.

History: 2002 AACS; 2014 AACS.

R 423.163 Motion to strike.

Rule 163. The commission or administrative law judge designated by the

commission may, on its own motion or on a motion by any party, order stricken from the

pleadings redundant, immaterial, impertinent, scandalous, or indecent matter or may

strike all or part of a pleading not drawn in conformity with these rules.

History: 2002 AACS.

R 423.164 Motion to consolidate or sever.

Rule 164. The commission or administrative law judge designated by the

commission may, on its own motion or on a motion by any party, order that a charge and

any proceeding which may have been initiated with respect thereto, be consolidated with

any other proceeding which may have been instituted thereto, or be severed from any

other proceeding with which it may have been consolidated under this rule. The

commission or administrative law judge designated by the commission shall grant such

motion only if the consolidation or severance will promote the just, economical, and

expeditious determination of the issues presented.

History: 2002 AACS; 2014 AACS.

R 423.165 Motion for summary disposition.

Rule 165. (1) The commission or administrative law judge designated by the

commission may, on its own motion or on a motion by any party, order dismissal of a

charge or issue a ruling in favor of the charging party. Such a motion, or order to show

cause, may be made at any time before or during the hearing.

(2) A motion for summary disposition made under this rule may be based upon 1 or

more of the following reasons and may require a supporting affidavit:

(a) The commission lacks jurisdiction over a party.

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(b) The commission lacks jurisdiction over the subject matter of the charge.

(c) The charge is barred because of the expiration of the applicable period of

limitations.

(d) The charging party has failed to state a claim upon which relief can be granted.

(e) The respondent has filed a pleading that demonstrates it does not have a valid

defense to the charge.

(f) Except as to the relief sought, there is no genuine issue of material fact.

(g) A charge or defense to a charge has been abandoned for failure to appear for

hearing or pre-hearing conference.

(h) A party fails to timely respond to a dispositive motion or a show cause order or

other order, including an order requiring the filing of a pre-hearing position statement or

a post-hearing brief.

(3) If the motion for summary disposition is filed before the hearing, then the

commission or administrative law judge designated by the commission may issue an

order to the nonmoving party to show cause why summary disposition should not be

granted. If a response to the order is not filed in a timely manner, then the motion shall

be considered and decided without oral argument.

(4) If the motion for summary disposition is denied, or if the proposed decision and

order does not dispose of the entire action or grant all of the relief demanded, then the

action shall proceed to hearing according to part 7 of these rules.

History: 2002 AACS; 2014 AACS.

R 423.166 Motion for reopening of record.

Rule 166. (1) A party to a proceeding may move for reopening of the record

following the close of a hearing conducted under Part 7 of these rules.

(2) The motion shall be filed with either of the following:

(a) The assigned administrative law judge if before the issuance of a decision and

recommended order.

(b) The commission after the issuance of a decision and recommended order.

(3) A motion for reopening of the record may be granted only upon a showing of all

of the following:

(a) The additional evidence could not with reasonable diligence have been

discovered and produced at the original hearing.

(b) The additional evidence itself, and not merely its materiality, is newly

discovered.

(c) The additional evidence, if adduced and credited, would require a different

result.

(4) Any motion pursuant to this rule shall not be filed more than 21 days after the

issuance of the commission's final order, except as provided under section 216(c) of

PERA or section 23(2)(e) of LMA.

History: 2002 AACS; 2014 AACS.

R 423.167 Motion for reconsideration following commission decision.

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Rule 167. A party to a proceeding may move for reconsideration after a decision

and order is issued by the commission. A motion for reconsideration shall state with

particularity the material error claimed and, with respect to any finding of material fact,

shall specify the page of the record relied upon. Generally, and without restricting the

discretion of the commission, a motion for reconsideration which merely presents the

same issues ruled on by the commission, either expressly or by reasonable implication,

will not be granted. Any motion pursuant to this rule shall not be filed later than 20

days after the issuance of the commission's final order, except as provided under section

216(c) of PERA or section 23(2)(e) of LMA. The filing and pendency of a motion under

this rule shall not operate to stay the effectiveness of the action of the commission unless

so ordered.

History: 2002 AACS; 2014 AACS.

PART 7. HEARINGS

R 423.171 General provisions.

Rule 171. (1) A hearing for the purpose of taking evidence upon a petition or

complaint and attached charge shall be conducted by the commission or administrative

law judge designated by the commission. The hearing shall be public unless otherwise

ordered by the commission or administrative law judge for good cause shown.

(2) A party may do all of the following:

(a) Appear at a hearing in person, by counsel, or by other representative.

(b) Call, examine, and cross-examine witnesses.

(c ) Introduce into the record documentary or other evidence.

(3) A party may introduce stipulations of fact into evidence at a hearing with

respect to any issue at the discretion of the commission, administrative law judge, or fact

finder.

(4) An objection to conduct of a hearing, including an objection to introduction of

evidence, may be oral or written, and be accompanied by a short statement of the grounds

to the objection, and shall be included in the record.

(5) Witnesses subpoenaed before the commission, administrative law judge, or fact

finder shall be paid the same fees and mileage that are paid to witnesses in the circuit

courts of the state. This payment shall be made by the party at whose request the witness

appears and shall be tendered before the time the witness testifies.

(6) Except as authorized by law, an administrative law judge or other agent of the

commission shall not make or receive an ex parte communication regarding a matter

subject to the hearing process, whether directly through a party or a representative of a

party, or indirectly through staff. An administrative law judge or other agent of the

commission who makes or receives an ex parte communication shall place it in the

official record. If an ex parte communication is so prejudicial that it cannot be cured by

exposure in the official record, the administrative law judge or other agent of the

commission shall disqualify himself or herself from further involvement in the matter.

(7) When a court has issued injunctive relief in aid of the commission’s jurisdiction

related to a pending case, either party may seek and may be granted expedited

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proceedings on the underlying unfair labor practice charge on such terms as may be

considered appropriate by the bureau director and the assigned administrative law judge.

(8) The record of any hearing or proceeding shall be taken pursuant to all of the

following:

(a) Certification. Only official court reporters certified in accordance with the state

court administrative office (SCAO) may record or prepare transcripts of proceedings held

by or on behalf of the commission pursuant to these rules. Official court reporters shall,

at a minimum, be designated as a certified shorthand reporter (CSR), certified steno mask

reporter (CSMR), or certified electronic recorder (CER) as defined by SCAO. The

signature line on the certification shall be signed by the court reporter who physically

appeared at the proceedings and shall contain a current certification number issued by the

SCAO as assigned to that reporter.

(b) Attendance at hearing. A court reporter satisfying the certification requirements

specified in subrule (8)(a) of this rule shall attend all hearings conducted by or on behalf

of the commission and take a verbatim record of the proceedings, including, but not

limited to, opening statements, witness testimony, final arguments, and the reasons given

by the administrative law judge for granting or refusing any motion made by a party

during the course of hearing.

(c) Furnishing transcript. The court reporter shall furnish within 10 business days,

in verbatim record, a transcript of the proceedings or any part of the proceedings taken by

him or her to any party on request. A party ordering the transcript shall make satisfactory

arrangements with the court reporter for payment of the cost of the transcript.

(d) Filing transcript. The court reporter shall file with the commission and the

administrative law judge an original transcript of the record, in legible English, of any

proceedings conducted by or on behalf of the commission. The transcript shall include a

certification by the court reporter that the transcript is an original, verbatim transcript of

the proceedings. The original transcript shall become part of the record in the case, and

the commission shall maintain a copy of the transcript for the time period required under

R 423.185.

History: 2002 AACS; 2014 AACS.

R 423.172 Duties and powers of administrative law judge or fact finder.

Rule 172. (1) An administrative law judge or fact finder shall inquire fully into the

facts involved in the proceeding before him or her.

(2) An administrative law judge or fact finder has the power to do all of the

following:

(a) Hold pretrial conferences for settlement or clarification of the issues, either in

person or by telephonic or electronic means, and may order the filing of position

statements to aid in the pretrial or hearing process.

(b) Dispose of procedural requests, motions, or similar matters.

(c) Continue or adjourn a hearing to a later date.

(d) Take or cause depositions to be taken when the ends of justice would be served

thereby.

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(e) Grant applications for subpoenas, subpoena witnesses, administer oaths and

affirmations, examine witnesses, receive relevant testimony and evidence, rule upon

offers of proof, and introduce into the record documentary or other relevant evidence.

(f) Regulate the course of a hearing and, if appropriate or necessary, exclude

persons or counsel from the hearing for contemptuous conduct.

(g) Order a hearing reopened before issuance of an administrative law judge's

recommended order or fact finder's report.

(h) Take official notice of facts. A judicially noticed fact must be one not subject to

reasonable dispute in that it is either generally recognized or capable of accurate and

ready determination by resort to sources whose accuracy cannot reasonably be

questioned.

(i) Take official notice of common law, administrative law, constitutions, public

statutes, private acts, resolutions of public bodies, ordinances, and regulations.

(j) Take any other action necessary and authorized by rules of the commission.

History: 2002 AACS; 2014 AACS.

R 423.173 Oral argument at hearing and briefs.

Rule 173. A party is entitled upon request to a reasonable period at the close of the

hearing for oral argument, which shall be made part of the record. A party is entitled,

upon request made before the close of the hearing, to file a brief with the administrative

law judge, who may fix a reasonable time for the filing. The commission or

administrative law judge may direct the filing of briefs when the filing is, in the opinion

of the commission or administrative law judge, warranted by the nature of the

proceedings or the particular issues involved. An original and 2 copies shall be submitted

for any brief filed in a representation proceeding under part 4 of these rules, unless

additional copies are requested.

History: 2002 AACS; 2014 AACS.

R 423.174 Rescinded.

History: 2002 AACS; 2014 AACS.

R 423.175 Unfair labor practice case decisions and recommended orders.

Rule 175. (1) In an unfair labor practice case, the administrative law judge shall

prepare a decision and recommended order setting forth findings of fact, conclusions of

law, and the reasons for his or her determination on all material issues.

(2) The administrative law judge may recommend dismissal or sustain the complaint

and attached charge, in whole or in part, and recommend that respondent cease and desist

from the unlawful acts found and take action to remedy their effects, including

reinstatement of employees with or without back pay, as appropriate.

(3) In the interest of judicial economy, the administrative law judge may issue a

decision from the bench following the conclusion of an oral argument or an evidentiary

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hearing, unless a party requests to file a post hearing brief. The bench decision does not

constitute a decision and recommended order until it is incorporated into a written order.

History: 2002 AACS; 2014 AACS.

R 423.176

Exceptions to administrative law judge's decision and

recommended orders; cross exceptions and response; brief in support.

Rule 176. (1) Any party may file written exceptions to the decision and

recommended order of the administrative law judge, or to any other part of the record or

proceedings, including rulings upon motions or objections, and a brief in support thereof.

Except as permitted by order of the commission, the combined length of the exceptions

and brief is limited to 50 pages, exclusive of tables, indexes and appendixes. The

exceptions and brief shall conform to the form and style in R 423.184.

(2) An original and 4 copies of the exceptions and brief shall be filed with the

commission, along with all of the following documents:

(a) Two copies of each exhibit, if any, admitted, or offered and marked at hearing

by either party.

(b) Two copies of each party’s post-hearing briefs.

(c) Two copies of all of the following documents:

(i) Any motion that resulted in a ruling by the administrative law judge dismissing or

sustaining the unfair labor practice in whole or part.

(ii) Any brief in support of the motion.

(iii) The response to the motion filed by the opposing party or parties.

(d) Copies of the exceptions and brief and a list of the other documents filed with

the exceptions shall be served at the same time on each party to the proceedings, and a

statement of service shall be filed under R 423.182

(3) Exceptions and the supporting documents in subrule (2) of this rule shall be filed

with the commission, and not with the administrative law judge, within 20 days of service

of the decision and recommended order.

(4) Exceptions shall be in compliance with all of the following provisions:

(a) Set forth specifically the question of procedure, fact, law, or policy to which

exceptions are taken.

(b) Identify that part of the administrative law judge's decision and recommended

order to which objection is made.

(c) Designate, by precise citation of page, the portions of the record relied on.

(d) State the grounds for the exceptions and include the citation of authorities, if any,

unless set forth in a supporting brief.

(5) A brief in support of exceptions shall contain only matter included within the

scope of the exceptions and shall contain, in the sequence indicated, all of the following:

(a) A title page, stating the full title of the case, including the name of the

administrative law judge and the case number.

(b) An index of authorities, listing, in alphabetical order, all case authorities cited,

with the complete citations including the years of decision, and all other authorities cited,

with the number of the pages where they appear in the brief.

(c) A statement of the questions involved and to be argued.

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(d) A clear and concise statement of facts. All material facts, both favorable and

unfavorable, shall be fairly stated without argument or bias. The statement shall contain

specific page references to the transcript and the legal or other material relied on.

(e) The argument, presenting clearly the points of fact and law relied on in support

of the position taken on each question, with specific page references to the transcript and

the legal or other material relied on.

(6) An exception to a ruling, finding, conclusion, or recommendation that is not

specifically raised is waived.

(7) An exception that fails to comply with this rule may be disregarded.

(8) Within 10 days after service of exceptions, a party may file 1original and 4

copies of cross exceptions and briefs in support thereof, or 1 original and 4 copies of a

brief or legal memorandum in support of the decision and recommended order. Copies

of these documents shall be served on each party to the proceedings.

(9) Within 10 days after service of cross exceptions, an opposing party may file 1

original and 4 copies of a brief or legal memorandum responding specifically to the

issues raised in the cross exceptions that were not addressed in the exceptions.

(10) An amicus curiae brief may be filed on motion granted by the commission. The

motion and proposed brief shall be filed within 20 days of the date that the brief in

support of the decision and recommended order is due. The brief is limited to the issues

raised by the parties.

(11) The commission may, on its own motion, reopen a record in any case and

receive further evidence, may close the case upon compliance with the administrative law

judge's recommended order, or may make other disposition of the case.

History: 2002 AACS; 2014 AACS.

R 423.176a Extension of time to file certain pleadings after issuance of decision

and recommended order.

(1) A party may file with the commission a written request for an extension of time

to file 1 of the following:

(a) Exceptions.

(b) Cross exceptions and supporting brief.

(c) Brief or legal memorandum in support of the decision and recommended order.

(d) Responses to cross exceptions.

(2) Written requests to extend the filing deadline for such pleadings shall be filed

with the commission and served on the other party before the expiration of the filing

deadline.

(3) One 30-day extension may be granted, unless a shorter period is ordered by the

commission.

(4) The new filing deadline shall apply to all parties and no subsequent extensions of

time for filing that same form of pleading shall be granted unless all parties to the case

consent to the additional extension of time or the requesting party shows exceptional

circumstances, which justify another extension under subrule (5) of this rule.

(5) Exceptional circumstances for the purposes of a subsequent extension of time

under this rule include any of the following:

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(a) Severe injury, severe illness, or death of an individual who is either a party or

party representative.

(b) Severe injury, severe illness, or death of a member of that individual's immediate

family or household.

(c) Similarly dire circumstances.

(6) Medical documentation supporting an assertion of a severe injury or illness shall

be submitted with any request for a subsequent extension unless all parties to the case

have consented to the additional extension.

History: 2014 AACS.

R 423.177 Compliance and enforcement.

Rule 177. (1) A compliance request made under this rule shall be limited to a

controversy concerning the meaning, interpretation, or scope of a commission order. A

request for enforcement of a commission order shall be made in the court of appeals

under MCL 423.216(d) and MCL 423.23(2)(e). Both of the following apply:

(a) If, at any time after entry of a commission order or entry of a final court

judgment enforcing a commission order, a controversy exists between the parties

concerning compliance with the order which cannot be resolved without a formal

proceeding, the prevailing party may request that the commission conduct a hearing on

such issues.

(b) An original and 4 copies of the a request shall be filed with the commission,

together with a proof of service of a copy on all other parties, as prescribed in R 423.181

and R 423.182.

(2) If the controversy concerns the amount of back pay due, then the request for

compliance shall specifically and in detail show, for each employee, the back pay periods

broken down by calendar quarters, the specific figures and basis of computation of gross

back pay, and the interim earnings and expenses for each quarter, the net back pay due,

and any other pertinent information.

(3) If the controversy concerns matters other than the amount of back pay due, then

the request shall contain a clear and concise description of the respects in which the

respondent has failed to comply with a commission or court order, including the remedial

acts claimed to be necessary for compliance by the respondent.

(4) Each respondent alleged in the request to have compliance obligations shall,

within 10 days of service of the request, file an original and 4 copies of an answer with

the commission, together with proof of service of copies of such documents on all other

parties. The answer shall specifically admit, deny, or explain each allegation in the

request, unless the respondent is without knowledge, in which case the respondent shall

so state, such statement operating as a denial. As to all matters within the knowledge of

the respondent, including but not limited to the various factors entering into the

computation of gross back pay, a general denial shall not suffice. As to such matters, if

the respondent disputes either the accuracy of the figures in the request or the premises

upon which they are based, the answer shall specifically state the basis for such

disagreement, setting forth in detail the respondent's position as to the applicable

premises and furnishing the appropriate supporting figures.

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(5) If the respondent fails to file any answer to the request within the time

prescribed by this rule, then the commission may, either with or without taking evidence

in support of the allegations in the request for compliance and, without further notice to

the respondent, enter an appropriate order. If the respondent files an answer to the

specification but fails to deny any allegation in the request in the manner required by

subrule (4) of this rule, and the failure to deny is not adequately explained, then such

allegation shall be admitted as true, and may be found by the commission without the

taking of evidence supporting such allegation, and the respondent shall be precluded from

introducing any evidence controverting the allegation.

(6) Upon proper cause shown by any party, the commission may by written order

extend the time within which the answer to the request for compliance is filed.

(7) After the filing of a request for compliance and the issuance of a notice of

hearing, the requirements in part 7 shall be followed as applicable.

History: 2002 AACS; 2014 AACS.

R 423.178 Oral argument before commission.

Rule 178. If a party desires to argue orally before the commission, a written request

shall accompany the exceptions, cross exceptions, or the brief in support of the decision

and recommended order, and at the same time, the request shall be served on all other

parties. The request must indicate “oral argument requested” in bold capital letters on the

first page of the pleading under the caption. The commission, on its own motion, may

also direct oral argument. The commission shall notify the parties of the time and place

of oral argument. The commission may limit the time for oral argument by each party.

History: 2002 AACS; 2014 AACS.

R 423.179 Commission action.

Rule 179. (1) Upon the filing of exceptions or cross exceptions, the commission

may adopt, modify, or reverse the administrative law judge's decision and recommended

order, or grant such other relief as the commission deems necessary to effectuate the

purposes of the act.

(2) If the commission identifies an issue not raised by the parties, it may on its own

motion direct the parties to file briefs on the issue, or remand the matter to the

administrative law judge for additional findings of fact.

History: 2002 AACS; 2014 AACS.

PART 8. FILING, SERVICE, RENTENTION, AND DISPOSAL OF

DOCUMENTS

R 423.181 Filing of documents and other pleadings.

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Rule 181. (1) "Filing" of a document, pleading, or other paper with the

commission is considered complete on the date it is delivered to any office of the

commission and received and accepted by the commission, administrative law judge, or

other agent designated to receive the document, with the intent to enter it in the record.

Filing may be accomplished by hand delivery, registered, certified or regular mail,

private delivery service, or any other means specifically authorized by the commission

or an administrative law judge designated by the commission.

(2) When LMA, PERA, or any of these rules require the filing of an original

and extra copies of a document, filing is considered complete on the date a copy is filed,

but the original and remaining copies shall be filed within 5 business days.

History: 2002 AACS.

R 423.182 Service of documents and other pleadings.

Rule 182. (1) Service on any party or parties of any document authorized or

required by LMA, PERA, or these rules, except service required by section 9 of LMA,

may be effected by hand delivery, registered, certified or regular mail, private delivery

service, or by leaving a copy at the principal office or place of business of the person

required to be served, or by any other means specifically authorized by the commission

or an administrative law judge designated by the commission. Service required by section

9 of LMA shall be made as prescribed therein.

(2) Where service of any document or pleading, other than an unfair labor practice

charge filed under R 423.151, is effected by mail or private delivery service, the date of

service is the date of deposit with the United States post office or other carrier. For

service of an unfair labor practice charge filed under R 423.151, or where service of any

document or pleading is effected by hand, by facsimile transmission, or by any other

method authorized by these rules, the date of service is the date of receipt.

(3) The person or party serving the papers or process on other parties under this rule

shall submit a written statement of service with the commission or assigned

administrative law judge designated by the commission stating the names of the parties

served and the date and manner of service. The statement of service may be included at

the end of the document at filing. Failure to timely file a statement of service will not

affect the validity of service.

(4) If, subsequent to the receipt of the statement of service, a question is raised with

respect to proper service, then the person or party serving the papers or process on other

parties in conformance with this rule shall submit a proof of service. When service is

made by registered or certified mail, the return post office receipt shall be proof of

service. When service is made by private delivery service, the receipt from that service

showing delivery shall be proof of service. When service is made in any other manner

authorized by these rules, verified proof of service shall be made by oath or affirmation

of the person or party serving the papers or process. Disputes with respect to proper

service will be resolved by the commission or administrative law judge designated by the

commission.

(5) The commission or administrative law judge designated by the commission may

decline to consider any document or pleading not served in accordance with these rules.

The commission or administrative law judge designated by the commission shall decline

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to consider any unfair labor practice charge filed under R 423.151 that is not served

within the applicable period of limitations.

History: 2002 AACS; 2014 AACS.

R 423.183 Computation of time.

Rule 183. In computing any period of time prescribed or allowed by LMA,

PERA, or these rules, the day of the act, event, or default after which the designated

period of time begins to run is not included. The last day of the period so computed is to

be included, unless it is a Saturday, Sunday, or legal holiday, in which event the period

runs until the end of the next day, which is neither a Saturday, Sunday, nor legal holiday.

When the period of time prescribed or allowed is less than 7 days, intermediate

Saturdays, Sundays, and legal holidays shall be excluded in the computation. Whenever

a party has the right or is required to do some act within a prescribed period after being

served with a document or pleading by mail, 3 days shall be added to the prescribed

period. However, 3 days shall not be added if any extension of time has been

granted.

History: 2002 AACS.

R 423.184 Form and style of motions, briefs, and other pleadings.

Rule 184. (1) Motions and briefs filed with the commission or an administrative law

judge designated by the commission shall be typewritten on 1 side only of 8 ½ by 11-inch

plain white paper, shall have margins not less than 1 inch on each side, shall be in a

typeface not smaller than 12 point and shall be double-spaced, except that quotations and

footnotes may be single-spaced. Unless expressly increased or decreased by order of the

administrative law judge, commission or designee, or other provision under these rules,

the size of any pleading is limited to 50 pages, exclusive of tables, indexes, and

appendixes.

(2) The original of all pleadings shall be firmly bound with 1 staple in the upper left

hand corner or secured with metal fasteners through a standard 2-hole punch perforation

at the top. No other method of securing original motions and briefs is acceptable. Copies

of pleadings may be secured by any reasonable format.

(3) The first page of each pleading shall bear the caption, case number or numbers,

and name of the administrative law judge, if any, or the commission.

(4) Failure to comply with the requirements of this rule may be a basis for rejection

of the document.

History: 2002 AACS; 2014 AACS.

R423.185 Retention and disposal of commission materials.

Rule 185. All documents, records, non-records and other materials, public and

nonpublic, official and unofficial, shall be maintained and disposed of using the general

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and bureau specific retention and disposal schedules under section 5 of 1913 PA 271,

MCL 399.5, and section 491 of the Michigan penal code, 1931 PA 328, MCL 750.491.

History: 2014 AACS.

PART 9. NOTICE OF PUBLIC SCHOOL STRIKE OR LOCKOUT

R 423.191 Notice to commission; filing; service.

Rule 191. (1) The initiating party shall notify the commission, in writing in legible

English, on a form provided by the commission and filed in compliance with R 423.181.

(2) The notice shall contain the name and address of the bargaining representative,

if any.

(3) The notice shall be accompanied by an affidavit signed and dated by the

initiating party or its agent. The affidavit shall include all of the following information

supported by specific facts and available documentary proof:

(a) A statement of how the affiant has personal knowledge of the facts recited in the

affidavit.

(b) The date or dates that the strike allegedly occurred.

(c) Whether the alleged strike is continuing.

(d) A clear and concise statement of the facts constituting the alleged violation.

(4) Upon filing a written notice and affidavit with the commission, the initiating

party shall simultaneously serve each named bargaining representative with a copy of the

written notice and affidavit pursuant to R 423.182. The notice shall state that the

initiating party has filed a written notice with the commission that a strike has occurred

and that statutory penalties are being sought. An original and 4 copies of the notice and

affidavit shall be filed with the commission, unless the notice and affidavit are filed

electronically pursuant to commission policy. A statement of service prepared pursuant

to R 423.182 shall be filed with the commission together with the notice.

(5) Upon receipt of a written notice and affidavit, the commission or its agent shall

review the notice and affidavit for compliance with R 423.191(1) to (4) and shall notify

the initiating party of any defects. The initiating party shall remedy any defects within 10

days of receipt of the notice from the commission, or within any other period as specified

by the commission or its agent. If the defects are not remedied within the time

prescribed, the commission or its agent shall reject the filing and proceedings shall not be

held on the filing.

(6) Within 2 business days of receipt of sufficient notice and affidavit, the

commission or its agent shall serve a notice of hearing on the initiating party and the

bargaining representative. The notice of hearing shall fix the date of hearing not less than

7 days nor more than 10 days from the date of service. The commission or its agent shall

also serve notice of hearing on the public school employer, if the public school employer

is not the initiating party.

(7) The bargaining representative shall file an answer and any affirmative defenses

with the commission within 7 days of service of notice of hearing and shall

simultaneously serve the initiating party. An original and 4 copies of any answer and

affirmative defenses shall be filed with the commission, unless the answer and

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affirmative defenses are filed electronically pursuant to commission policy. Only

pleadings filed in a timely fashion pursuant to this rule shall be considered unless good

cause is shown for late filing.

History: 2002 AACS; 2017 AACS.

R 423.191a Prehearing conference.

Rule 191a. At the time of issuing notice of the hearing, the commission may direct

the parties to appear for a prehearing conference or file a position statement, or both, on

or before the date set for hearing. The prehearing conference may resolve any matter

upon which the parties agree or which the commission may determine is proper for

resolution.

History: 2017 AACS.

R 423.192 Hearing on whether a strike occurred.

Rule 192. (1) The commission shall convene a hearing pursuant to proper notice, at

which the initiating party and the bargaining representative shall be given the opportunity

to present evidence of their claims and defenses. The hearing will be conducted before

the commission and shall be on the record. A postponement of the hearing shall not be

granted without the consent of the commission or its agent.

(2) If a commissioner becomes unavailable, the commission may designate the

director of the bureau of employment relations or an attorney in the bureau’s labor

relations division to participate in the hearing in place of the absent commissioner.

(3) The public school employer or the superintendent of public instruction may

petition to become a party to the proceedings, if the public school employer or the

superintendent of public instruction is not the initiating party.

(4) The burden of proof is on the initiating party.

(5) A party may do all of the following:

(a) Appear at a hearing in person, by counsel, or by other representative.

(b) Call, examine, and cross-examine witnesses.

(c) Introduce into the record documentary or other evidence.

(6) At the discretion of the commission, a party may introduce stipulations of fact

into evidence at a hearing with respect to any issue.

(7) An objection to the conduct of a hearing, including an objection to introduction

of evidence, may be oral or written; be accompanied by a short statement of the grounds

for the objection; and, be included in the record.

(8) Witnesses subpoenaed before the commission shall be paid the same fees and

mileage that are paid to witnesses in the circuit courts of this state. This payment shall be

made by the party at whose request the witness appears and shall be tendered before the

time that the witness testifies.

(9) Except as authorized by law, neither the commission nor an agent of the

commission may make or receive an ex parte communication regarding a matter subject

to the hearing process, whether directly through a party or a representative of a party, or

indirectly through staff. An agent of the commission who makes or receives an ex parte

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communication shall place it in the official record. If an ex parte communication is so

prejudicial that it cannot be cured by exposure in the official record, the agent of the

commission shall disqualify himself or herself from further involvement in the matter.

(10) The hearing shall be public unless otherwise ordered by the commission for

good cause shown. The parties are each entitled, upon request, to a reasonable period at

the close of the hearing for oral argument, which shall be made part of the record. Except

as otherwise provided in these rules, the provisions of R 423.171(1) and R 423.173 to R

423.179 are not applicable.

(11) A verbatim record of the proceedings shall be made, including, but not limited,

to all of the following:

(a) Opening statements.

(b) Witness testimony.

(c) Final arguments.

(d) The reasons given by the commission for granting or refusing any motion made

by a party during the course of hearing.

(12) The court reporter shall prepare the transcript within 1 business day of each

day’s proceedings and provide it to the commission. A court reporter shall file with the

commission an original transcript of the record, in legible English, of any proceedings

conducted by or on behalf of the commission. The transcript shall include a certification

by the court reporter that the transcript is an original, verbatim transcript of the

proceedings. The original transcript shall become part of the record in the case, and the

commission shall maintain a copy of the transcript for the time period required under R

423.185. A party that orders a copy of the transcript shall make arrangements with the

court reporter for payment of the cost of the copy.

(13) At the discretion of the commission, parties may submit briefs at the close of

the hearing. A party submitting a brief shall file the original and 4 copies with the

commission, unless the brief is submitted electronically pursuant to commission policy.

A party filing a brief shall file it with the commission and serve a copy on each of the

other parties no later than the close of business on the last day of the hearing.

(14) The commission shall issue its decision and order within 3 business days of the

close of the hearing. The commission decision and order shall be based on the record of

the hearing.

History: 2002 AACS; 2017 AACS.

R 423.192a Notice of names of employees presumed to have engaged in a strike.

Rule 192a. (1) If the commission determines that conditions constituting a strike

exist, the public school employer or the superintendent of public instruction shall, within

5 business days after notification of the decision, notify the commission, in writing, of

each public school employee presumed to have engaged in a strike. The notice shall be

on a form furnished by the commission and shall contain all of the following information

and items:

(a) The name and home address and, if available, the email address and daytime or

cell phone number of each public school employee presumed to have engaged in a strike.

(b) The established daily rate of pay of each employee presumed to have engaged in

a strike.

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(c) Three sets of mailing labels containing the names and home addresses of the

public school employees presumed to have engaged in a strike.

(d) An electronic submission of the mailing list in .csv (comma separated values)

format or any other format authorized by the bureau of employment relations before

submission.

(2) The notice shall be accompanied by an affidavit that is signed and dated by an

agent of the public school employer or the superintendent of public instruction. The

affidavit shall include the following information that is supported by specific facts and

available documentary proof:

(a) A statement from the person who signed the affidavit of how he or she has

personal knowledge of the facts recited in the affidavit.

(b) All of the following information concerning the absence of each employee

named in the notice:

(i) The date or dates when each employee named in the notice was absent from his

or her position.

(ii) How each employee abstained, in whole or in part, from the full, faithful, and

proper performance of his or her employment duties in order to induce, influence, or

coerce a change in employment conditions, compensation, or the rights, privileges, or

obligations of employment.

(iii) How each employee abstained, in whole or in part, from the full, faithful, and

proper performance of his or her employment duties in order to protest or respond to an

act alleged or determined to be an unfair labor practice committed by the public school

employer.

(3) The public school employer or the superintendent of public instruction shall file

with the commission an original and 2 copies of the notice and affidavit, unless the notice

and affidavit are filed electronically pursuant to commission policy. Upon filing a written

notice and affidavit with the commission, the public school employer or the

superintendent of public instruction shall simultaneously serve each public school

employee named in the notice with a copy of the written notice and affidavit pursuant to

R 423.182. The notice shall state that the public school employee named in the notice

and affidavit is presumed to have engaged in an illegal strike and that statutory penalties

are being sought. A statement of service pursuant to R 423.182 shall be filed with the

commission together with the notice.

(4) Upon receipt of a written notice, affidavit, and statement of service, the

commission or its agent shall review the notice, affidavit, and statement of service for

compliance with R 423.192a(1) to (3) and shall notify the party making the filing of any

defects. The party making the filing shall remedy any defects within 5 business days of

receipt of notification of the decision in which the commission has determined that

conditions constituting a strike exist. If the defects are not remedied within the time

prescribed, the commission or its agent shall reject the filing and proceedings shall not be

held on the filing.

History: 2017 AACS.

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R 423.193. Challenge to presumption of participation in a strike.

Rule 193. (1) A public school employee who is presumed to have engaged in a

strike in violation of section 2 of PERA and who intends to challenge this presumption

shall file an answer to the notice served on the employee by the public school employer

or superintendent of public instruction. The answer shall be on a form furnished by the

commission and shall be filed with the commission within 10 days of the date that the

notice asserting that the employee is presumed to have engaged in a strike was served on

that employee under R 423.192a.

(2) The answer shall be accompanied by an affidavit signed and dated by the public

school employee. Both documents shall be in legible English. The affidavit shall include

the following information supported by specific facts and available documentary proof:

(a) A statement of how the public school employee who signed the affidavit has

personal knowledge of the facts recited in the affidavit.

(b) A clear and concise statement of the facts upon which the public school

employee intends to rely at hearing to rebut the presumption that he or she engaged in a

strike in violation of section 2 of PERA.

(3) The public school employee shall file an original and 2 copies of the answer and

affidavit with the commission, unless the answer and affidavit are filed electronically

pursuant to commission policy. Upon filing a written answer and affidavit with the

commission, the public school employee shall simultaneously serve the public school

employer or the superintendent of public instruction with a copy of the written answer

and affidavit pursuant to R 423.182. A statement of service pursuant to R 423.182 shall

be filed with the commission together with the answer and affidavit.

(4) Within 2 business days of receipt of a written answer and affidavit, the

commission or its agent shall serve a notice of hearing upon the public school employer,

the superintendent of public instruction, and each public school employee named in the

affidavit. The notice of hearing shall fix the date of hearing not less than 7 days and not

more than 10 days from the date of service.

(5) If a public school employee who is presumed to have engaged in a strike in

violation of section 2 of PERA fails to file an answer and affidavit with the commission

indicating his or her intent to challenge that presumption, this failure shall constitute an

admission that the public school employee violated section 2 of PERA.

History: 2002 AACS; 2017 AACS; 2018 AACS.

R 423.194. Hearing on whether an individual employee participated in a strike.

Rule 194. (1) The commission shall convene a hearing within 15 days after the

commission receives the answer and affidavit from the public school employee, in

accordance with notice requirements in R 423.193(4). At the hearing, the parties shall be

given the opportunity to present evidence of their claims and defenses.

(2) The initiating party is entitled to notice of the proceeding and may appear to

offer evidence that the public school employee abstained in whole or in part from the full

performance of his or her normal duties without permission on a date when a strike

occurred.

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(3) Whether or not the public school employer or the superintendent of public

instruction is the initiating party, the public school employer and superintendent of public

instruction are entitled to notice of the proceeding and may appear to offer evidence.

(4) The employee alleged to have been on strike has the burden of proof.

(5) The hearing shall be conducted before the commission, a commissioner, or an

administrative law judge designated by the commission. If the hearing is conducted by a

commissioner or administrative law judge, he or she shall have the powers and duties set

forth in R 423.172. If the hearing is conducted by the commission, the commission’s

powers shall include the powers in R 423.172. The hearing shall be open to the public

unless otherwise ordered by the commission, a commissioner, or an administrative law

judge for good cause shown. The record of any hearing or proceeding shall be taken as

prescribed in R 423.171(8).

(6) A party may do all of the following:

(a) Appear at a hearing in person, by counsel, or by other representative.

(b) Call, examine, and cross-examine witnesses.

(c) Introduce into the record documentary or other evidence.

(7) A party may introduce stipulations of fact into evidence at a hearing with

respect to any issue at the discretion of the commission, a commissioner, or an

administrative law judge.

(8) An objection to the conduct of a hearing, including an objection to introduction

of evidence, may be oral or written; shall be accompanied by a short statement of the

grounds for the objection; and, shall be included in the record.

(9) Witnesses subpoenaed before the commission, a commissioner, or an

administrative law judge, shall be paid the same fees and mileage that are paid to

witnesses in the circuit courts of this state. This payment shall be made by the party at

whose request the witness appears and shall be tendered before the time that the witness

testifies.

(10) Except as authorized by law, the commission, a commissioner, an

administrative law judge, or other agent of the commission shall not make or receive an

ex parte communication regarding a matter subject to the hearing process, whether

directly through a party or a representative of a party, or indirectly through staff. If an ex

parte communication is made or received, it shall be placed in the official record. If an

ex parte communication is so prejudicial that it cannot be cured by exposure in the

official record, the administrative law judge or other agent of the commission shall

disqualify himself or herself from further involvement in the matter.

(11) The court reporter shall file with the commission and the administrative law

judge an original transcript of the record, in legible English, of any proceedings

conducted by or on behalf of the commission. The transcript shall include a certification

by the court reporter that the transcript is an original, verbatim transcript of the

proceedings. The original transcript shall become part of the record in the case, and the

commission shall maintain a copy of the transcript for the time period required under R

423.185.

(12) A party is entitled upon request to a reasonable period at the close of the

hearing for oral argument, which shall be made part of the record. The commission, a

commissioner, or administrative law judge may direct the filing of briefs when the filing

is, in the opinion of the commission, a commissioner, or administrative law judge,

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warranted by the nature of the proceedings or the particular issues involved. The

commission, a commissioner, or administrative law judge may fix a reasonable time for

the filing.

(13) If a commissioner or administrative law judge who is designated to conduct a

hearing becomes unavailable after the hearing has been opened or concluded, the

commission or an agent designated by the commission may transfer the case to another

commissioner or administrative law judge for further hearing or issuance of the decision

and recommended order, or both, on the record as made.

(14) The commissioner or administrative law judge shall prepare a decision and

recommended order setting forth findings of fact, conclusions of law, and the reasons for

his or her determination on all material issues. The decision and recommended order

shall be based on the record of the hearing.

History: 2002 AACS; 2017 AACS.

R 423.195 Exceptions to decision and recommended order; cross exceptions and

response; brief in support.

Rule 195. (1) Any party may file written exceptions to the decision and

recommended order of a commissioner or administrative law judge, or to any other part

of the record or proceedings, including rulings upon motions or objections, and a brief in

support of the exceptions. Except as permitted by order of the commission, the combined

length of the exceptions and brief is limited to 50 pages, exclusive of tables, indexes, and

appendixes. The exceptions and brief shall conform to the form and style in R 423.184.

(2) An original and 4 copies of the exceptions and brief shall be filed with the

commission, along with all of the following documents:

(a) Two copies of the notice and affidavit identifying the employees presumed to

have been engaged in a strike in violation of section 2 of PERA.

(b) Two copies of the answer and affidavit of the employee presumed to have been

engaged in a strike in violation of section 2 of PERA.

(c) Two copies of each exhibit, if any, admitted, or offered and marked at hearing

by either party.

(d) Two copies of each party’s briefs.

(e) Copies of the exceptions and brief and a list of the other documents filed with

the exceptions shall be served at the same time on each party to the proceedings, and a

statement of service shall be filed under R 423.182.

(3) Exceptions and the supporting documents listed in subrule (2) of this rule shall

be filed with the commission, and not with a commissioner or administrative law judge,

within 20 days of service of the decision and recommended order. If the exceptions and

the supporting documents listed in subrule (2) of this rule are filed electronically pursuant

to commission policy, it is not necessary to file additional copies.

(4) Exceptions shall comply with all of the following provisions:

(a) Set forth specifically the question of procedure, fact, law, or policy to which

exceptions are taken.

(b) Identify that part of the decision and recommended order to which objection is

made.

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(c) Designate, by precise citation of page, the portions of the record on which the

exceptions rely.

(d) State the grounds for the exceptions and include a citation of authorities, if any,

unless set forth in a supporting brief.

(5) A brief in support of exceptions shall contain only matters included within the

scope of the exceptions and shall contain, in the sequence indicated, all of the following:

(a) A title page that states the full title of the case, including the name of the

commissioner or administrative law judge and the case number.

(b) An index of authorities that lists in alphabetical order all case authorities cited

with the complete citations, including the years of decision, and all other authorities cited

with the number of the pages where they appear in the brief.

(c) A statement of the questions involved and to be argued.

(d) A clear and concise statement of facts. All material facts, both favorable and

unfavorable, shall be fairly stated without argument or bias. The statement shall contain

specific page references to the transcript and the legal or other material on which the brief

relies.

(e) The argument that presents clearly the points of fact and law relied on in support

of the position taken on each question, with specific page references to the transcript and

the legal or other material on which the argument relies.

(6) An exception to a ruling, finding, conclusion, or recommendation that is not

specifically raised is waived.

(7) An exception that does not comply with this rule may be disregarded.

(8) Within 10 days after service of exceptions, an opposing party may file 1 original

and 4 copies of cross exceptions and briefs in support of the cross exceptions, or 1

original and 4 copies of a brief or legal memorandum in support of the decision and

recommended order. If the cross exceptions and brief in support or the legal

memorandum in support of the decision and recommended order are filed electronically

pursuant to commission policy, it is not necessary to file additional copies. Copies of

these documents shall be served on each party to the proceedings.

(9) Within 10 days after service of cross exceptions, an opposing party may file 1

original and 4 copies of a brief or legal memorandum responding specifically to the

issues raised in the cross exceptions that were not addressed in the exceptions. If the

brief or legal memorandum responding to the cross exceptions is filed electronically

pursuant to commission policy, it is not necessary to file additional copies. Copies of

these documents shall be served on each party to the proceedings.

(10) The commission may, on its own motion, do any of the following:

(a) Reopen a record in any case and receive further evidence.

(b) Close the case upon compliance with the commissioner’s or administrative law

judge's recommended order.

(c) Make other disposition of the case.

(11) If the decision and recommended order was issued by a commissioner, that

commissioner shall recuse himself or herself from deciding the case on exceptions.

History: 2017 AACS.

R 423.196 Notice of conditions constituting a lockout.

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Rule 196. (1) A bargaining representative representing public school employees

who are alleging an illegal lockout of public school employees in violation of section 2 of

PERA shall notify the commission, in writing in legible English, on a form furnished by

the commission. The notice shall contain the name and address of the public school

employer allegedly liable under section 2a of PERA.

(2) The notice shall be accompanied by an affidavit signed and dated by an agent of

the bargaining representative that includes the following information supported by

specific facts and available documentary proof:

(a) A statement of how the person who has sworn to the affidavit has personal

knowledge of the facts recited in the affidavit.

(b) The date on which the lockout allegedly occurred.

(c) Whether the lockout is continuing.

(d) A clear and concise statement of the facts constituting the alleged violation.

(3) An original and 4 copies of the notice and affidavit shall be filed with the

commission, unless the notice and affidavit are filed electronically pursuant to

commission policy. Upon filing a written notice and affidavit with the commission, the

bargaining representative shall simultaneously serve the public school employer with a

copy of the written notice and affidavit pursuant to R 423.182. The notice shall state that

the bargaining representative has filed with the commission a written notice that an

illegal lockout has occurred and that statutory penalties are being sought. A statement of

service that complies with R 423.182 shall be filed with the commission together with the

notice.

(4) Upon receipt of a written notice and affidavit, the commission or its agent shall

review the notice and affidavit for compliance with R 423.196(1) to (3) and notify the

bargaining representative of any defects. The bargaining representative shall remedy any

defects within 10 days of receipt of this notice from the commission, or within any other

period as specified by the commission or its agent. If the defects are not remedied within

the time prescribed, the commission or its agent shall reject the filing and proceedings

shall not be held on the filing.

(5) Within 2 business days of receipt of sufficient notice and affidavit, the

commission shall serve a notice of hearing on the bargaining representative and the

public school employer. The notice of hearing shall fix the date of hearing not less than 7

days and not more than 10 days from the date of service.

(6) The public school employer shall file an answer and any affirmative defenses

with the commission within 7 days of service of notice of hearing and shall

simultaneously serve the bargaining representative filing the initial notice. Only

pleadings filed in a timely fashion pursuant to this rule shall be considered unless good

cause is shown for late filing.

History: 2017 AACS.

R 423.197 Prehearing conference.

Rule 197. When issuing a notice of the hearing, the commission may direct the

parties to appear for a prehearing conference, or file a position statement, or both, on or

before the date set for hearing. The prehearing conference may resolve any matter upon

which the parties agree or which the commission may determine is proper for resolution.

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History: 2017 AACS.

R 423.198 Hearing on whether a lockout occurred.

Rule 198. (1) A hearing shall be convened, pursuant to proper notice, at which the

parties shall be given the opportunity to present evidence of their claims and defenses.

The hearing will be conducted before the commission and shall be on the record. A

postponement of the hearing shall not be granted without the consent of the commission

or its agent.

(2) If a commissioner becomes unavailable, the commission may designate the

director of the bureau of employment relations or an attorney in the bureau’s labor

relations division to participate in the hearing in place of the absent commissioner.

(3) The burden of proof is on the party that filed the notice of lockout.

(4) A party may do all of the following:

(a) Appear at a hearing in person, by counsel, or by other representative.

(b) Call, examine, and cross-examine witnesses.

(c) Introduce into the record documentary or other evidence.

(5) At the discretion of the commission, a party may introduce stipulations of fact

into evidence at a hearing with respect to any issue.

(6) An objection to conduct of a hearing, including an objection to introduction of

evidence, may be oral or written, shall be accompanied by a short statement of the

grounds for the objection, and shall be included in the record.

(7) Witnesses subpoenaed before the commission shall be paid the same fees and

mileage that are paid to witnesses in the circuit courts of this state. This payment shall be

made by the party at whose request the witness appears and shall be tendered before the

time the witness testifies.

(8) Except as authorized by law, neither the commission nor an agent of the

commission may make or receive an ex parte communication regarding a matter subject

to the hearing process, whether directly through a party or a representative of a party, or

indirectly through staff. If an ex parte communication is made or received, it shall be

placed in the official record. If an ex parte communication is so prejudicial that it cannot

be cured by exposure in the official record, the agent of the commission shall disqualify

himself or herself from further involvement in the matter.

(9) The hearing shall be open to the public unless otherwise ordered by the

commission for good cause shown. Each party is entitled, upon request, to a reasonable

period at the close of the hearing for oral argument, which shall be made part of the

record. Except as otherwise provided in these rules, the provisions of R 423.171(1) and

R 423.173 to R 423.179 are not applicable.

(10) A verbatim record of the proceedings shall be made, including, but not limited,

to all of the following:

(a) Opening statements.

(b) Witness testimony.

(c) Final arguments.

(d) The reasons given by the commission for granting or refusing any motion made

by a party during the course of hearing.

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(11) The transcript shall be prepared within 1 business day of each day’s

proceedings and shall be provided to the commission. The court reporter shall file with

the commission an original transcript of the record, in legible English, of any proceedings

conducted by or on behalf of the commission. The transcript shall include a certification

by the court reporter that the transcript is an original, verbatim transcript of the

proceedings. The original transcript shall become part of the record in the case, and the

commission shall maintain a copy of the transcript for the time period required under R

423.185. A party that orders a copy of the transcript shall make arrangements with the

court reporter for payment of the cost of the copy.

(12) At the discretion of the commission, parties may submit briefs at the close of

the hearing. Any party submitting a brief shall file the original and 4 copies with the

commission and serve a copy on each of the other parties no later than the close of

business on the last day of the hearing. If the brief is filed electronically pursuant to

commission policy, it is not necessary to file additional copies.

(13) The commission shall issue its decision and order within 3 business days of the

close of the hearing. The commission decision and order shall be based on the record of

the hearing.

History: 2017 AACS.

R 423.401 Rescinded.

History: 1979 AC; 2002 AACS.

R 423.403 Rescinded.

History: 1979 AC; 2002 AACS.

R 423.405 Rescinded.

History: 1979 AC; 2002 AACS.

R 423.407 Rescinded.

History: 1979 AC; 2002 AACS.

R 423.411 Rescinded.

History: 1979 AC; 2002 AACS.

R 423.421 Rescinded.

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History: 1979 AC; 2002 AACS.

R 423.422 Rescinded.

History: 1979 AC; 2002 AACS.

R 423.423 Rescinded.

History: 1979 AC; 2002 AACS.

R 423.431 Rescinded.

History: 1979 AC; 2002 AACS.

R 423.432 Rescinded.

History: 1979 AC; 2002 AACS.

R 423.433 Rescinded.

History: 1979 AC; 2002 AACS.

R 423.434 Rescinded.

History: 1979 AC; 2002 AACS.

R 423.435 Rescinded.

History: 1979 AC; 2002 AACS.

R 423.441 Rescinded.

History: 1979 AC; 2002 AACS.

R 423.442 Rescinded.

History: 1979 AC; 2002 AACS.

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R 423.443 Rescinded.

History: 1979 AC; 2002 AACS.

R 423.444 Rescinded.

History: 1979 AC; 2002 AACS.

R 423.445 Rescinded.

History: 1979 AC; 2002 AACS.

R 423.446 Rescinded.

History: 1979 AC; 2002 AACS.

R 423.447 Rescinded.

History: 1979 AC; 2002 AACS.

R 423.448 Rescinded.

History: 1979 AC; 2002 AACS.

R 423.449 Rescinded.

History: 1979 AC; 2002 AACS.

R 423.450 Rescinded.

History: 1979 AC; 2002 AACS.

R 423.451 Rescinded.

History: 1979 AC; 2002 AACS.

R 423.452 Rescinded.

History: 1979 AC; 2002 AACS.

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R 423.453 Rescinded.

History: 1979 AC; 2002 AACS.

R 423.454 Rescinded.

History: 1979 AC; 2002 AACS.

R 423.455 Rescinded.

History: 1979 AC; 2002 AACS.

R 423.456 Rescinded.

History: 1979 AC; 2002 AACS.

R 423.461 Rescinded.

History: 1979 AC; 2002 AACS.

R 423.462 Rescinded.

History: 1979 AC; 2002 AACS.

R 423.463 Rescinded.

History: 1979 AC; 2002 AACS.

R 423.464 Rescinded.

History: 1979 AC; 2002 AACS.

R 423.465 Rescinded.

History: 1979 AC; 2002 AACS.

R 423.466 Rescinded.

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History: 1979 AC; 2002 AACS.

R 423.467 Rescinded.

History: 1979 AC; 2002 AACS.

R 423.468 Rescinded.

History: 1979 AC; 2002 AACS.

R 423.469 Rescinded.

History: 1979 AC; 2002 AACS.

R 423.470 Rescinded.

History: 1979 AC; 2002 AACS.

R 423.471 Rescinded.

History: 1979 AC; 2002 AACS.

R 423.472 Rescinded.

History: 1979 AC; 2002 AACS.

R 423.481 Rescinded.

History: 1995 AACS; 2002 AACS.

R 423.482 Rescinded.

History: 1995 AACS; 2002 AACS.

R 423.483 Rescinded.

History: 1995 AACS; 2002 AACS.

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R 423.484 Rescinded.

History: 1995 AACS; 2002 AACS.

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