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### STATE OF MICHIGAN

COURT OF APPEALS

IONIA PUBLIC SCHOOLS,

Respondent-Appellee, UNPUBLISHED May 12, 2016

v No. 325413 MERC IONIA EDUCATION ASSOCIATION, LC No. 00-000094

Charging Party-Appellant.

Before: H OEKSTRA , P.J., and O’C ONNELL and M URRAY , JJ.

P ER C URIAM

. Charging party Ionia Education Association (“the Association”) appeals as of right the decision and order of the Michiga n Employment Relations Commiss ion (“MERC”) that granted summary disposition in favor of respondent Ionia Public Schools (“the School”) on the Association’s claim that the School committed an unfair labor p ractice and granted summary disposition in favor of the School on its competing unfair labo r practice charge against the Association. Because the Associa tion engaged in an unfair labo r practice by refusing to negotiate for an agreement that did not include prohibited subj ects and the School’s refusal to negotiate over these prohibited t erms was not an unfair labor p ractice, we affirm.

The Association represents a bargaining unit of teachers and o ther professionals employed by the School. In June 2011, the Association and the School began negotiations for a successor collective bargaining agreement (“CBA”), as the curre nt CBA was set to expire on August 25, 2011. On July 19, 2011, the Legislature gave immedi ate effect to 2011 PA 103, which amended the Michigan Public Employment Relations Act (“PE RA”), MCL 423.201 et
seq . Relevant to this case, 2011 PA 103 added several “prohibited subjects” of collective bargaining under MCL 423.215(3)(j)-(p). By statute, a public s chool employer and the employees’ bargaining representative may not bargain over the p rohibited subject identified in MCL 423.215(3), and these areas are instead “within the sole au thority of the public school employer to decide.” MCL 423.215(4).

After 2011 PA 103 took effect, the School identified approxima tely 45 provisions in the expiring CBA that involved prohibited subjects, and the School expressly informed the Association that it would not enter into a successor CBA that c ontained prohibited terms. The School sent the Association severa l package proposals, which om itted the identified provisions. However, the Association refuse d to enter into a successor CBA that did not contain the terms-2- identified by the School as prohibited under 2011 PA 103. The Association refused to discuss whether the terms at issue were prohibited subjects and the Ass ociation declined to make a written proposal. The Associati on took the position that, if t he identified terms were prohibited subjects of bargaining, the parties could not bargain to remove them from the CBA and these terms should instead become part of the successor CBA automatic ally.

The parties filed competing char ges that the other engaged in unfair labor practices by negotiating in bad faith. The par ties then filed competing mot ions for summary disposition. Ultimately, the MERC granted summary disposition in favor of th e School on its claim that the Association committed an unfair labor practice, and granted sum mary disposition in favor of the School on the Association’s competing claim that the School com mitted an unfair labor practice. Briefly summarized, the MERC reasoned that the School had no ob ligation to bargain over the prohibited subjects at issue; and that, in contrast, the Associ ation failed to bargain in good faith by refusing to discuss whether the topics were prohibited and b y insisting on the inclusion of the prohibited subjects in the succe ssor CBA. The Asso ciation now appeals to this Court.

On appeal, the Association argues that the MERC erred by grant ing summary disposition to the School and denying the Association’s motion for summary disposition. According to the Association, nothing in PERA pre vents the parties from entering into an agreement which contains prohibited subjects; r ather, the provisions should aut omatically remain in the contract and, if they involve prohibited subjects, the contract provisio ns relating to prohibited subjects would simply be unenforceable. The Association also maintains that it did not agree to the School’s assessment of whether the issues were “prohibited subj ects” and that t he School cannot unilaterally decide which matters are prohibited subjects. For these reasons, the Association contends that the School engaged in an unfair labor practice by unilaterally excluding terms from the proposed CBA and that the Association did not engage in an unfair labor practice by refusing to acquiesce to the School’s treatment of these subjects. In a ddition, the Association contends that any conclusion that it failed to bargain in good faith is premature because the parties were still in the bargaining proce ss and had not yet bargained to an impasse.

“In a case on appeal from the MERC, the MERC’s factual finding s are conclusive if supported by competent, material, and substantial evidence on t he record.” Macomb Co v AFSCME Council 25 , 494 Mich 65, 77; 833 NW2d 225 (2013) (internal quotation mark s and citation omitted). “Legal questions, which include questions o f statutory interpretation and contract interpretati on, are reviewed de novo.” Id.

PERA governs the relationship between public employees and gov ernmental agencies. Id. at 77-78. As a general matter, under PERA, parties are requir ed to bargain in “good faith,” meaning that they must be “actively engaged in the bargaining p rocess with an open mind and a sincere desire to reach an agreement.” Id. at 79 (citation omitted). See also MCL 423.215(1). More specifically, the obligati ons of a public school employer and its employees, with respect to bargaining over “prohibited subjects,” were recently discussed by this Court in Calhoun Intermediate Ed Ass’n MEA/NEA v Calhoun Intermediate Sch Dist , ___ Mich App ___; ___-3- NW2d ___ (2016) (Docket No. 323873). 1 As in the present case, the parties in that case were in the process of bargaining for a successor CBA and, even after t he school district identified prohibited subjects that it would not include in the CBA, the a ssociation insisted on the inclusion of prohibited terms in the successor CBA. Id. , slip op at 1-3. Under these circumstances, this Court held that, while parties may discuss prohibited subjects, a party violates its obligation to bargain in good faith by insisti ng on maintaining prohibited la nguage in a successor CBA. Id.

, slip op at 5-6. More fully, this Court explained:

[A]lthough the Association was fr ee to “discuss” the prohibited subjects in this case, once the District made it clear that it did not want any provisions pertaining to the prohibited subjects to be included in the successor CBA, the Association had no authority to continue to insist that the language or any modification of it was maintained in the successor CBA. The District made its pos ition clear . . . when it submitted a revised comprehensive proposal removing the provisions pertaining to prohibited subjec ts from the CBA and providing ex press notice that it would not sign a successor ag reement containing provisions p ertaining to the prohibited subjects. Thereafter, the Association presented pac kage proposals containing the disputed language . . . . In doing so, the Assoc iation crossed the line from discussing a prohibited subject, which it is allowed to do, and began bargaining over it in spite of the District’s clear statements that it would not include such language in the successor CBA. We conclude, as di d the MERC, that the Association’s insisten ce on maintaining prohibited lan guage in the successor CBA is an act of bad faith. [ Id. at 5-6.]

In concluding that the association failed to bargain in good fa ith, this Court recognized that the subjects identified in MCL 423.215(3) are “prohibited subjects” within the district’s sole authority, and this Court expressly rejected the association’s assertion that prohibited terms can somehow be “rolled over” into a successor CBA, against the scho ol district’s wishes, without bargaining. Id. , slip op at 5 & n 5. Finally, this Court also rejected the ar gument that an employer had to wait until the parties bargained to an impasse before filing an unfair labor practice charge regarding prohibi ted subjects, reasoning that s uch a requirement would essentially allow the employee to demand that the employer barg ain over the prohi bited subjects. Id. at 6. Given these conclusions, this Court affirmed the MERC’s finding that the association committed an unfair labor practice by insisting on the inclusio n of prohibited terms in the CBA. Id.

Following the reasoning in Calhoun Intermediate Ed Ass’n MEA/NEA , it becomes clear that the Association’s argument s in this case are without merit . That is, the subjects identified in MCL 423.215(3) are “prohibited subj ects” within the School’s so le authority. See MCL 423.215(4); Calhoun Intermediate Ed Ass’n MEA/NEA , slip op at 5. The School was free to exclude these prohibited subjec ts from the successor CBA and, o nce the School informed the

1 As a published decision of this Court, Calhoun Intermediate Ed Ass’n MEA/NEA constitutes binding precedent. MCR 7.215(C )(2); MCR 7.215(J)(1).-4- Association of its decision to e xclude these subjects, the Asso ciation had no right to demand that these terms automatically rollover into the successor CBA. See Calhoun Intermediate Ed Ass’n MEA/NEA , slip op at 5-6 & n 5. The Association’s categorical refusal to enter into an agreement without these terms and its insistence that the prohibited term s could not be removed from the CBA constituted an act of bad faith. Cf. id. Likewise, there is no merit to the contention that the School had to bargain to an impa sse before the Association coul d be found to have bargained in bad faith by demanding inclusion of prohibited subjects in the CBA. Id. , slip op at 6.

While we find that Calhoun Intermediate Ed Ass’n MEA/NEA largely resolves the parties’ dispute, we note that the present case differs slightl y from Calhoun Intermediate Ed Ass’n MEA/NEA in relation to the question of whether the topics at issue wer e “prohibited subjects” under MCL 423.215(3). In particular, in Calhoun Intermediate Ed Ass’n MEA/NEA

, slip op 1, the parties agreed that MCL 423.215(3) applied to th e issues in dispute, while in the present case the Association maintains that it never concurred in the School’s assessment of whether the contested CBA provi sions involved prohibited subjec ts under MCL 423.215(3). However, on the facts of this case, this distinction does not d emand a different result than that reached in Calhoun Intermediate Ed Ass’n MEA/NEA

. First, the Association offers no evidence or argument—either i n this Court or before the MERC—to suggest that the CBA provisions at issue did not actual ly involve “prohibited subjects.” Absent supporting au thority and meaningful briefing of this issue, the matter is abandoned, Yee v Shiawassee Co Bd of Com'rs, 251 Mich App 379, 406; 651 NW2d 756 (2002), and we can find no basis to disturb the MERC’s conclusion that the subjects were “prohibited” under MCL 423.215(3). Second, in asserting that it never agree d to the School’s assessment of which provisions contained “prohi bited subjects,” the Associati on wholly disregards the significant fact that it had the opportunity to discuss this to pic with the School and that it repeatedly refused to do so. That is, the Association’s repeat ed refusal to discuss which CBA provisions contained “prohibited subjects” only serves to under score the bad faith with which the Association approached bargain ing with the School. As aptly ex plained by the MERC:

[T]he [Association] does not deny that, on several occasions, the [School] sought to discuss with it whether it agreed with the [School] that the provisions identified by the [School] apply to prohib ited subjects of bargaining. Th e [Association] does not deny that it declined to discuss whether the provision s that the [School] objected to including in the successor agreement were, in fact, prohibited subjects of bargaining. . . .

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The [Association’s] repeated refusal to discuss that issue as w ell as its baseless insistence that provisions from t he expired contract automatica lly carried over into the new contract indicate that the [Association] had neith er an open mind nor a sincere desire to reach agreement. In short, the [Associatio n’s] actions were simply an attempt to delay and obf uscate the bargaining process

. In sum, we agree with the MERC that the Association’s refusal to discuss which topics were prohibited and its meritless insistence on rolling prohibi ted provisions over into the-5- successor CBA constituted an unfair labor practice. In contras t, the School acted well within the bounds of good faith bargaining by identifying prohibited subje cts, inviting a discussion of whether these topics were prohi bited, and ultimately refusing t o enter into an agreement containing subjects prohibited under PERA. For these reasons, the MERC properly granted summary disposition to the School and denied the Association’s motion for summary disposition.

Affirmed.

/s/ Joel P. Hoekstra /s/ Peter D. O’Connell /s/ Christopher M. Murray