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.

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(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.

(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 improperly affecting

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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

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.

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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.

(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

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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.

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

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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.

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.

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(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

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.

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(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.

(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

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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.

(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

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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 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.

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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.

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.

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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.

(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.

Page 13

(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.

(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.

Page 14

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 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.

Page 15

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.

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

Page 16

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 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.

Page 17

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 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.

Page 18

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.

(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.

Page 19

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.

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.

Page 20

(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 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

Page 21

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.

(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.

Page 22

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 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:

Page 23

(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.

(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.

Page 24

(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:

(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.

Page 25

(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.

(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.

Page 26

(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.

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

Page 27

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

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.

Page 28

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 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

Page 29

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 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.

Page 30

(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

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:

Page 31

(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.

(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.

Page 32

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.

Page 33

(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, 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.

Page 34

(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.

(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.

Page 35

(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.

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

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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.

History: 2017 AACS.

R 423.198 Hearing on whether a lockout occurred.

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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.

(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

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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.

History: 1979 AC; 2002 AACS.

R 423.422 Rescinded.

History: 1979 AC; 2002 AACS.

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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.

R 423.443 Rescinded.

History: 1979 AC; 2002 AACS.

R 423.444 Rescinded.

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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.

R 423.453 Rescinded.

History: 1979 AC; 2002 AACS.

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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.

History: 1979 AC; 2002 AACS.

R 423.467 Rescinded.

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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.

R 423.484 Rescinded.

History: 1995 AACS; 2002 AACS.

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