                          STATE OF MICHIGAN

                           COURT OF APPEALS



RIVER ROUGE SCHOOL DISTRICT,                                        UNPUBLISHED
                                                                    September 1, 2016
               Respondent-Appellee,

v                                                                   No. 326925
                                                                    MERC
RIVER ROUGE EDUCATION ASSOCIATION,                                  LC No. 09-000202

               Charging Party-Appellant.


Before: OWENS, P.J., and SAWYER and SHAPIRO, JJ.

PER CURIAM.

        Charging party River Rouge Education Association (the Association) appeals by right the
order of the Michigan Employment Relations Commission (MERC) dismissing the Association’s
unfair labor practice charge brought against respondent River Rouge School District (the
District). We affirm.

        The Association is the bargaining representative for all certified teachers employed by the
District. This case concerns whether the District repudiated the collective bargaining agreement
(CBA) between the Association and the River Rouge Board of Education by employing non-
member substitute teachers before recalling two laid-off member teachers to those positions.

        One of the teachers, Beverly Franklin, was laid off in June 2009 due to the District’s
economic condition. The 2009-2010 school year began on September 1, 2009, and the second
semester began on January 25, 2010. Franklin was recalled as a “Computer/Business” teacher to
River Rouge High School on September 24, 2009. Her salary was prorated accordingly.
Franklin testified at a March 7, 2014 hearing that a substitute teacher previously taught the
classes she was recalled to teach. The hearing referee found Franklin’s testimony credible and
unrefuted.

       The other teacher, Terry Loveday, was laid off in June 2007 and recalled as a physical
education teacher at Ann Visger Elementary School on January 4, 2010. He testified that before
being recalled, “[o]ne of my friends at the school district informed me that there was a substitute
in the physical education position.” Loveday indicated that he relayed that information to a
union representative and subsequently received a call in December 2009 from the District’s
superintendent informing him that he would be recalled. Tammy Hubbard, the principal of Ann
Visger Elementary School, explained that physical education was not offered when the 2009-
2010 school year began partly because the school needed to assess its enrollment numbers before
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deciding how many “specials” to offer. Hubbard said that “gym” was offered about a month into
the school year and was taught by a substitute teacher before Loveday returned. Hubbard
indicated that all decisions regarding how the class would be staffed came from the District’s
superintendent.

        In its unfair labor practice claim, the Association asserted, and the District largely agreed,
that multiple laid-off teachers had been recalled in September 2009. The Association maintained
that despite the September recalls “there remained teaching assignments that were still staffed by
permanent substitutes.” The Association argued that by failing to offer those positions to laid-off
teachers, the District unilaterally modified or repudiated the CBA’s procedures for making
layoffs and filling vacancies. The District admitted that it employed substitute teachers, but
asserted that it did so in compliance with the CBA.1

        Following a hearing, the hearing referee found “no basis in this record to find Respondent
guilty of repudiating the provisions in its contract dealing with recall and the filling of
vacancies.” The referee reasoned that even if respondent breached the contract by its delay in
recalling Franklin and Loveday, these were isolated instances of contract breach “that did not
significantly impact the bargaining unit.” The referee recommended dismissal of the charge.
The Association filed exceptions, which MERC found unavailing. MERC dismissed the
Association’s charge, and this appeal followed.

        MERC’s factual findings are conclusive when they are “supported by competent,
material, and substantial evidence on the record considered as a whole . . . .” MCL 423.216(e);
see also Const 1963, art 6 § 28.2 “This evidentiary standard is equal to the amount of evidence
that a reasonable mind would accept as sufficient to support a conclusion. While it consists of
more than a scintilla of evidence, it may be substantially less than a preponderance.” Mount
Pleasant Pub Sch v Mich AFSCME Council 25, 302 Mich App 600, 615; 840 NW2d 750 (2013)
(internal quotations marks and citation omitted). Review of MERC’s “factual findings . . . must



1
  The Association filed an amended charge approximately four months later, which provided
allegations relating to member Lisa LaForest. Claims related to LaForest were settled at
conference.
2
    Const 1963, art 6, § 28 provides in part:
                  All final decisions, findings, rulings and orders of any administrative
          officer or agency existing under the constitution or by law, which are judicial or
          quasi-judicial and affect private rights or licenses, shall be subject to direct review
          by the courts as provided by law. This review shall include, as a minimum, the
          determination whether such final decisions, findings, rulings and orders are
          authorized by law; and, in cases in which a hearing is required, whether the same
          are supported by competent, material and substantial evidence on the whole
          record. . . .




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be undertaken with sensitivity, and due deference must be accorded to administrative expertise.”
Gogebic Community College Mich Ed Support Personnel Ass’n v Gogebic Community College,
246 Mich App 342, 348-349; 632 NW2d 517 (2001) (citation omitted).

        “MERC’s legal determinations may not be disturbed unless they violate a constitutional
or statutory provision or they are based on a substantial and material error of law.” Oak Park
Pub Safety Officers Ass’n v City of Oak Park, 277 Mich App 317, 324; 745 NW2d 527 (2007).
However, “review of legal questions remains de novo, even in MERC cases.” Van Buren Co Ed
Ass’n and Decatur Ed Support Personnel Ass’n, MEA/NEA v Decatur Pub Sch, 309 Mich App
630, 639; 872 NW2d 710 (2015) (internal quotation marks and citation omitted).

        Public labor relations in Michigan are governed by the Michigan Public Employment
Relations Act (PERA), MCL 423.201 et seq. Detroit Fire Fighters Ass’n, IAFF Local 344 v City
of Detroit, 482 Mich 18, 28; 753 NW2d 579 (2008). Pursuant to § 10(1)(e) of PERA, a public
employer may not “[r]efuse to bargain collectively with the representatives of its public
employees . . . .” MCL 423.210(1). In order to bargain collectively, the parties must meet and
“confer in good faith with respect to wages, hours, and other terms and conditions of
employment,” MCL 423.215(1), which are known as the mandatory subjects of collective
bargaining, Oak Park Pub Safety Officers Ass’n, 277 Mich App at 325. “Permissive subjects are
those which are not mandatory, but about which the parties may bargain.” Detroit Police
Officers Ass’n v City of Detroit, 428 Mich 79, 91 n 6; 404 NW2d 595 (1987). “Once agreement
is reached, the terms of the written bargaining agreement are preserved and neither management,
nor labor, may unilaterally modify the agreement without the consent of the other party.” St
Clair Intermediate Sch Dist v Intermediate Ed Ass’n/Mich Ed Ass’n, 458 Mich 540, 566-567;
581 NW2d 707 (1998) (citations omitted).

       “The MERC ordinarily does not involve itself with contract interpretation when the
agreement provides a grievance process that culminates in arbitration.” Macomb Co v AFSCME
Council 25, 494 Mich 65, 80; 833 NW2d 225 (2013) (internal quotation marks and citation
omitted). However, MERC has long held that it will find an unfair labor practice when an
employer’s unilateral modification of a CBA amounts to repudiation of the CBA. See, e.g.,
Plymouth-Canton Community Sch Bd of Ed v Plymouth-Canton Ass’n of Ed Office Personnel,
1984 Lab Op 894. When a party repudiates a CBA, it violates its duty to bargain in good faith.
Maud Preston Palenske Mem Library v AFSCME Council 25, Local 2757.09 and Local 2757.10,
MERC Decision & Order (Case No. C12 K-223), issued April 10, 2014.

       “Repudiation exists when 1) the contract breach is substantial, and has a significant
impact on the bargaining unit and 2) no bona fide dispute over interpretation of the contract is
involved.” Gibraltar Sch Dist v Gibraltar Custodial-Maintenance Ass’n/MEA, MERC Decision
& Order (Case No. CU01 I-052), issued June 30, 2003. “The Commission has defined
repudiation as an attempt to rewrite the contract, a refusal to acknowledge its existence, or a
complete disregard for the contract as written.” City of Detroit (Dep’t of Transp) v Amalgamated
Transit Union, Local 26, MERC Decision & Order (Case No. C04 B-061), issued April 25,
2006. MERC “has repeatedly held that there is no breach of the duty to bargain under § 10(1)(e)
of PERA when the parties have a good faith dispute over contract interpretation.” Wayne Co v
Mich AFSCME Council 25, AFL-CIO, MERC Decision & Order (Case No. C10 J-266), issued
May 19, 2015. See also Saunders v City of Dearborn, 107 Mich App 499, 506; 309 NW2d 641

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(1981) (noting that MERC “has held that when the action involves a good-faith dispute as to
contract interpretation, it will not assert jurisdiction”).

        The Association argues that MERC erred in not finding repudiation because the District
repudiated Articles 7 and 8 of the CBA, the provisions governing recalls and assignments for
vacancies. We disagree because we find no error in MERC’s adoption of the ALJ’s reasoning
that even if respondent breached the contract by its delay in recalling Franklin and Loveday,
these were isolated instances of contract breach “that did not significantly impact the bargaining
unit.” The Association essentially argues that, when considering the effect of the District’s
actions on the bargaining unit, other teachers covered by a previous settlement regarding recall
should also be considered. Yet, even though the Association did not make this specific argument
to MERC, MERC noted that the Association “did not produce evidence that any other teachers
were denied timely recall, nor was there evidence that [the District] refused to recognize its
contractual duty to recall laid off teachers.” Indeed, the Association does not cite the record for
support of its assertion that “nearly half of the bargaining unit members were laid off and not
recalled in a timely manner.” Considering that the evidence only pertained to two of the unit’s
members, MERC’s finding that any breach of the CBA did not significantly impact the
bargaining unit was “supported by competent, material, and substantial evidence.” MCL
423.216(e).

       Because the District’s actions were not a repudiation of the CBA, there was no unfair
labor practice. As such, MERC did not err by not awarding Franklin and Loveday back pay.
See MCL 423.216(b) (MERC may only award back pay if it determines that the respondent
committed an unfair labor practice).

       Affirmed.



                                                            /s/ Donald S. Owens
                                                            /s/ David H. Sawyer
                                                            /s/ Douglas B. Shapiro




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