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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UNPUBLISHED 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: HOEKSTRA, P.J., and O’CONNELL and MURRAY, JJ. 

PER CURIAM. 

 Charging party Ionia Education Association (“the Association”) appeals as of right the 

decision and order of the Michigan Employment Relations Commission (“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 practice and granted summary 

disposition in favor of the School on its competing unfair labor practice charge against the 

Association. Because the Association engaged in an unfair labor practice by refusing to 

negotiate for an agreement that did not include prohibited subjects and the School’s refusal to 

negotiate over these prohibited terms was not an unfair labor practice, we affirm. 

 The Association represents a bargaining unit of teachers and other professionals 

employed by the School. In June 2011, the Association and the School began negotiations for a 

successor collective bargaining agreement (“CBA”), as the current CBA was set to expire on 

August 25, 2011. On July 19, 2011, the Legislature gave immediate effect to 2011 PA 103, 

which amended the Michigan Public Employment Relations Act (“PERA”), 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 school employer and the 

employees’ bargaining representative may not bargain over the prohibited subject identified in 

MCL 423.215(3), and these areas are instead “within the sole authority of the public school 

employer to decide.” MCL 423.215(4). 

 After 2011 PA 103 took effect, the School identified approximately 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 contained prohibited terms. The 

School sent the Association several package proposals, which omitted the identified provisions. 

However, the Association refused to enter into a successor CBA that did not contain the terms 
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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 Association declined to make a 

written proposal. The Association took the position that, if the 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 automatically. 

 The parties filed competing charges that the other engaged in unfair labor practices by 

negotiating in bad faith. The parties then filed competing motions for summary disposition. 

Ultimately, the MERC granted summary disposition in favor of the School on its claim that the 

Association committed an unfair labor practice, and granted summary disposition in favor of the 

School on the Association’s competing claim that the School committed an unfair labor practice. 

Briefly summarized, the MERC reasoned that the School had no obligation to bargain over the 

prohibited subjects at issue; and that, in contrast, the Association failed to bargain in good faith 

by refusing to discuss whether the topics were prohibited and by insisting on the inclusion of the 

prohibited subjects in the successor CBA. The Association now appeals to this Court. 

 On appeal, the Association argues that the MERC erred by granting summary disposition 

to the School and denying the Association’s motion for summary disposition. According to the 

Association, nothing in PERA prevents the parties from entering into an agreement which 

contains prohibited subjects; rather, the provisions should automatically remain in the contract 

and, if they involve prohibited subjects, the contract provisions 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 subjects” and that the 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 addition, the Association contends 

that any conclusion that it failed to bargain in good faith is premature because the parties were 

still in the bargaining process and had not yet bargained to an impasse. 

 “In a case on appeal from the MERC, the MERC’s factual findings are conclusive if 

supported by competent, material, and substantial evidence on the record.” Macomb Co v 

AFSCME Council 25, 494 Mich 65, 77; 833 NW2d 225 (2013) (internal quotation marks and 

citation omitted). “Legal questions, which include questions of statutory interpretation and 

contract interpretation, are reviewed de novo.” Id. 

 PERA governs the relationship between public employees and governmental agencies. 

Id. at 77-78. As a general matter, under PERA, parties are required to bargain in “good faith,” 

meaning that they must be “actively engaged in the bargaining process 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 obligations 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 ___; ___ 
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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 the school district identified 

prohibited subjects that it would not include in the CBA, the association 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 insisting on maintaining prohibited language in a successor CBA. Id., 

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

[A]lthough the Association was free 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 position clear . . . 

when it submitted a revised comprehensive proposal removing the provisions 

pertaining to prohibited subjects from the CBA and providing express notice that 

it would not sign a successor agreement containing provisions pertaining to the 

prohibited subjects. Thereafter, the Association presented package proposals 

containing the disputed language . . . . In doing so, the Association 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 did the MERC, 

that the Association’s insistence on maintaining prohibited language in the 

successor CBA is an act of bad faith. [Id. at 5-6.] 

In concluding that the association failed to bargain in good faith, 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 school district’s wishes, without 

bargaining. Id., slip op at 5 & n 5. Finally, this Court also rejected the argument that an 

employer had to wait until the parties bargained to an impasse before filing an unfair labor 

practice charge regarding prohibited subjects, reasoning that such a requirement would 

essentially allow the employee to demand that the employer bargain over the prohibited 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 inclusion 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 arguments in this case are without merit. That is, the subjects identified in 

MCL 423.215(3) are “prohibited subjects” within the School’s sole 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 subjects from the successor CBA and, once 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). 
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Association of its decision to exclude these subjects, the Association 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 terms 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 impasse before the Association could 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 slightly from Calhoun Intermediate Ed 

Ass’n MEA/NEA in relation to the question of whether the topics at issue were “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 the 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 provisions involved prohibited subjects under MCL 423.215(3). 

However, on the facts of this case, this distinction does not demand a different result than that 

reached in Calhoun Intermediate Ed Ass’n MEA/NEA. 

 First, the Association offers no evidence or argument—either in this Court or before the 

MERC—to suggest that the CBA provisions at issue did not actually involve “prohibited 

subjects.” Absent supporting authority 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 agreed to the School’s assessment of 

which provisions contained “prohibited subjects,” the Association wholly disregards the 

significant fact that it had the opportunity to discuss this topic with the School and that it 

repeatedly refused to do so. That is, the Association’s repeated refusal to discuss which CBA 

provisions contained “prohibited subjects” only serves to underscore the bad faith with which the 

Association approached bargaining with the School. As aptly explained 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 prohibited subjects of bargaining. The [Association] 

does not deny that it declined to discuss whether the provisions that the [School] 

objected to including in the successor agreement were, in fact, prohibited subjects 

of bargaining. . . . 

*** 

The [Association’s] repeated refusal to discuss that issue as well as its baseless 

insistence that provisions from the expired contract automatically carried over 

into the new contract indicate that the [Association] had neither an open mind nor 

a sincere desire to reach agreement. In short, the [Association’s] actions were 

simply an attempt to delay and obfuscate 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 prohibited provisions over into the 
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successor CBA constituted an unfair labor practice. In contrast, the School acted well within the 

bounds of good faith bargaining by identifying prohibited subjects, inviting a discussion of 

whether these topics were prohibited, and ultimately refusing to 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