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STATE OF MICHIGAN 

COURT OF APPEALS 

COUNTY OF WAYNE, 

 Plaintiff-Appellant, 

UNPUBLISHED 

October 9, 2014 

v No. 312708 

Michigan Employment Relations 

Commission (MERC) 

MICHIGAN AFSCME COUNCIL 25 AND ITS 

AFFILIATED LOCALS 25, 101, 409, 1659, 1862, 

2057, 2926, AND 3317, 

LC No. 09-000211 

 Charging Parties-Appellees. 

Before: RONAYNE KRAUSE, P.J., and WILDER and STEPHENS, JJ. 

PER CURIAM. 

 Respondent, Wayne County, appeals as of right the Michigan Employment Relations 

Commission (MERC) order adopting the administrative law judge’s (ALJ) recommended order, 

ruling in favor of the charging parties, Michigan AFSCME Council 25 and its affiliated Locals 

25, 101, 409, 1659, 1862, 2057, 2926, and 3317 (hereinafter “charging parties”), and finding that 

respondent breached its duty to bargain. We reverse and remand for further proceedings 

consistent with this opinion. 

 Respondent challenges the decision by the MERC that past practice supersedes the 

language of the relevant collective bargaining agreements (CBAs) in determining that retirees 

receiving disability pensions are to continue to receive health care benefits. 

I. STANDARD OF REVIEW 

 The applicable standard of review was discussed by our Supreme Court in Macomb Co v 

AFSCME Council 25, 494 Mich 65, 77; 833 NW2d 225 (2013) (citations omitted): 

 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 

whole record.” Legal questions, which include questions of statutory 

interpretation and questions of contract interpretation, are reviewed de novo. As a 

result, an administrative agency’s legal rulings “are set aside if they are in 
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violation of the constitution or a statute, or affected by a substantial and material 

error of law.” 

II. ANALYSIS 

 In accordance with MCL 423.210(1)(e) of the Public Employment Relations Act 

(PERA), it is unlawful for a “public employer or an officer or agent of a public employer” to 

“[r]efuse to bargain collectively with the representatives of its public employees. . . .” “By 

statute, the employer and the representative of the employees are required to bargain for wages, 

hours, and other terms and conditions of employment, MCL 423.215, which constitute 

mandatory subjects of collective bargaining.” St Clair Intermediate Sch Dist v Intermediate Ed 

Ass’n/Michigan Ed, 458 Mich 540, 550-551; 581 NW2d 707 (1998). “The ‘mandatory subjects 

of bargaining’ include health insurance benefits.” Ranta v Eaton Rapids Pub Sch Bd of Ed, 271 

Mich App 261, 270; 721 NW2d 806 (2006) (citation omitted). “The statutory duty to bargain 

may be fulfilled by ‘negotiating for a provision in the collective bargaining agreement that fixes 

the parties’ rights and forecloses further mandatory bargaining. . . .’ ” Port Huron Ed Ass’n 

MEA/NEA v Port Huron Area Sch Dist, 452 Mich 309, 318; 550 NW2d 228 (1996) (citation 

omitted). “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, 458 Mich at 566-567 (internal 

citations omitted). It is also, however, accepted that “[a] subject need not be explicitly 

mentioned in an agreement in order for the subject to be ‘covered by’ the agreement.” Port 

Huron Ed Ass’n, 452 Mich at 322 n 16. 

 The case of Macomb County v AFSCME Council 25, supra, guides our resolution of the 

issues presented. The factual issues in AFSCME Council 25 are not significantly distinguishable 

from those here. In AFSCME Council 25, the respondents changed the way they calculated 

retirement benefits without first bargaining for the change under the presumption that the 

county’s retirement ordinance granted them discretion to do so and the charging parties argued 

that past practice had established an enforceable calculation of retirement benefits such that they 

could not be changed absent additional bargaining. 494 Mich at 82-83. Similarly, here 

respondent contends that its “reservation of rights” and zipper clauses gave it the authority to 

change the health insurance for disabled retirees and the charging parties argue that past practice 

of awarding benefits along with disability retirement prohibited a change without additional 

bargaining. 

 According to our Supreme Court, there are two analytical inquiries to be made when 

considering whether an employer is required to bargain before it alters a mandatory subject of 

bargaining. Port Huron Ed Ass’n, 452 Mich at 318. The first of these inquiries asks whether 

“the issue the union seeks to negotiate [is]. . . covered by or contained in the collective 

bargaining agreement.” Id. (citations and internal quotation marks omitted). If the answer is 

negative, then the second inquiry asks whether “the union . . . somehow relinquish[ed] its right to 

bargain.” Id. The importance of distinguishing between these two concepts has long been 

recognized. Id. at 319. Specifically: 
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When parties bargain about a subject and memorialize the results of their 

negotiation in a collective bargaining agreement, they create a set of enforceable 

rules—a new code of conduct for themselves—on that subject. Because of the 

fundamental policy of freedom of contract, the parties are generally free to agree 

to whatever specific rules they like, and in most circumstances it is beyond the 

competence of the Authority, the National Labor Relations Board or the courts to 

interfere with the parties’ choice. . . . On the other hand, when a union waives its 

right to bargain about a particular matter, it surrenders the opportunity to create a 

set of contractual rules that bind the employer, and instead cedes full discretion to 

the employer on that matter. For that reason, the courts require “clear and 

unmistakable” evidence of waiver and have tended to construe waivers narrowly. 

[Id., quoting Dep’t of Navy v Fed Labor Relations Auth, 962 F2d 48, 57 (CA DC, 

1992).] 

 As an initial matter it must be determined whether the contractual language covers the 

subject at issue. “[W]hen a charging party claims that a respondent has failed to bargain over a 

mandatory subject of bargaining, the MERC must determine whether the agreement ‘covers’ the 

dispute.” AFSCME Council 25, 494 Mich at 80 (citation and quotation marks omitted). The 

holding in AFSCME Council 25 is that if the disputed issue is covered in the CBA, then the 

grievance procedure, and not the MERC, becomes the appropriate avenue for addressing the 

charging parties’ claims. Id. at 87. 

 The ALJ and majority of the MERC panel erroneously determined that the relevant 

CBAs were silent with regard to health care benefits for disability retirees. Although the CBAs 

do not specifically reference the right to health care benefits for “disability retirees,” this does 

not render the contracts silent on this subject, as “[a] subject need not be explicitly mentioned in 

an agreement in order for the subject to be ‘covered by’ the agreement.” Port Huron Ed Ass’n, 

452 Mich at 322 n 16 (citation omitted). The relevant CBAs and the Health and Welfare Benefit 

Plans reference employees needing to meet age and/or years of service criteria in order to qualify 

for health care benefits upon retirement. The 2006 Health and Welfare Benefit Plan clearly 

indicated: “All employees hired or rehired on or after December 1, 1990 shall not be eligible for 

health care benefits . . . upon retirement unless they retire with thirty (30) or more years of credit 

service.” (Emphasis added.) Because the contract language is unambiguous, Port Huron Ed 

Ass’n, 452 Mich at 323, it should be given its plain meaning, Calhoun Co v Blue Cross Blue 

Shield Mich, 297 Mich App 1, 13; 824 NW2d 202 (2012). Contrary to the MERC’s majority 

holding, we find that the CBAs do contain contract language that addresses retiree eligibility and 

health care. Because we find that the disputed issue is covered in the CBAs, we also find that 

remand for arbitration is the appropriate remedy for addressing the charging parties’ past practice 

claims. 

 “[A] term or condition of employment” may be established “through [a] past practice” 

mutually accepted by the parties. St Clair Intermediate Sch Dist, 458 Mich at 571 (citation 

omitted). AFSCME Council 25 explained the concept and effect of past practice: 

 [T]his Court’s caselaw allows a charging party to raise an unfair labor 

practice complaint for changing a term or condition of employment even when a 

collective bargaining agreement controls, but only when the new term or 
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condition amounts to an amendment of the collective bargaining agreement. 

However, overcoming an unambiguous provision in the collective bargaining 

agreement requires the charging parties to “show the parties had a meeting of the 

minds with respect to the new terms or conditions so that there was an agreement 

to modify the contract.” The past practice must be “so widely acknowledged and 

mutually accepted that it creates an amendment to the contract.” [494 Mich at 89, 

citing Port Huron Ed Ass’n, 452 Mich at 312, 329.] 

 Here, the parties stipulated to a 30 year history of past practice of providing disability 

retirees health care benefits regardless of whether they met age or years of service criteria. 

Respondent announced its intent to discontinue payments for health insurance to future disability 

retires without any bargaining. As of the date of this appeal, its intent was not made manifest. 

The parties agree that five retirees with disability pensions were awarded health care benefits 

after 2008 despite both the clear language of the applicable retirement benefits clause and the 

zipper clauses contained in Local 3317's contracts. The issue between the parties remains 

whether the continuation of the practice of awarding health insurance to individuals with 

disability retirement after the 2008 contract, and despite the zipper clause, constituted a past 

practice that required additional bargaining to change. On remand, the charging parties will have 

to employ the test from AFSCME Council 25 and demonstrate that there existed a “meeting of 

the minds with respect to the new terms or conditions—[with respondent] intentionally choosing 

to reject the negotiated contract and knowingly act in accordance with the past practice.” 494 

Mich at 89 citing Port Huron Ed Ass’n, 452 Mich at 312. 

III. CONCLUSION 

 “If the agreement covers the term or condition in dispute, then the details and 

enforceability of the provision are left to arbitration.” AFSCME Council 25, 494 Mich at 80 

(citation and quotation marks omitted). Here, the grievance and arbitration procedures provided 

for in Article 10 of the CBAs were bypassed. The scope of the MERC’s authority in reviewing a 

claim of refusal-to-bargain when the parties have a separate grievance or arbitration process is 

limited to whether the agreement covers the subject of the claim. Id. at 81. When there is 

evidence that a past practice has modified the collective bargaining agreement, it is left to the 

arbitrator to make the final determination on the issue and not the MERC. On remand, the 

arbitrator is to determine whether the test in AFSCME Council 25 has been met and if so, the 

appropriate contractual remedy. 

 
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 Reversed and remanded for proceedings consistent with this opinion. We do not retain 

jurisdiction.1

/s/ Amy Ronayne Krause 

/s/ Kurtis T. Wilder 

/s/ Cynthia Diane Stephens 

 

1

 We note that in its statement of questions presented respondent poses the following inquiry: “Is 

a disability retiree’s entitlement to health care benefits vest [sic], if at all, under the terms of the 

CBA under which he or she has retired?” Yet, a review of the brief fails to reveal any reference 

to this issue, any citation to law or discussion of pertinent facts or argument. “It is axiomatic that 

where a party fails to brief the merits of an allegation of error, the issue is deemed abandoned by 

this Court.” Prince v MacDonald, 237 Mich App 186, 197; 602 NW2d 834 (1999).