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### STATE OF MICHIGAN

COURT OF APPEALS

RIVER ROUGE SCHOOL DISTRICT,

Respondent-Appellee, UNPUBLISHED September 1, 2016

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

Charging Party-Appellant.

Before: O WENS , P.J., and S AWYER and S HAPIRO , JJ.

P ER C URIAM

.
Charging party River Rouge Edu cation Association (the Associat ion) appeals by right the order of the Michigan Employment Relations Commission (MERC) di smissing the Association’s unfair labor practice charge bro ught against respondent River R ouge School District (the District). We affirm.

The Association is the bargaini ng representative for all certi fied teachers employed by the District. This case concerns whether the District repudiated t he collective bargaining agreement (CBA) between the Association and the River Rouge Board of Educ ation by employing nonmember substitute teachers before recalling two laid-off member teachers to those positions.

One of the teachers, Beverly Franklin, was laid off in June 20 09 due to the District’s economic condition. The 2009-2010 school year began on Septemb er 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 F ranklin’s testimony credible and
unrefuted.

The other teacher, Terry Loveda y, was laid off in June 2007 an d 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 fri ends at the school district inf ormed me that there was a substitute in the physical education posit ion.” Loveday indicated that he relayed that information to a union representative and subsequently received a call in Decemb er 2009 from the District’s superintendent informing him tha t he would be recalled. Tammy Hubbard, the principal of Ann Visger Elementary School, explaine d that physical education was not offered when the 2009- 2010 school year began partly because the school needed to asse ss its enrollment numbers before-2- 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 L oveday returned. Hubbard indicated that all decisions reg arding how the class would be s taffed came from the District’s superintendent.

In its unfair labor practice cl aim, 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 ass ignments 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 e mployed substitute teachers, but asserted that it did so in compliance with the CBA. 1

Following a hearing, the hearin g referee found “n o basis in th is record to find Respondent guilty of repudiating the provisions in its contract dealing wi th recall and the filling of vacancies.” The referee reasoned that even if respondent breac hed the contract by its delay in recalling Franklin and Loveday, these were isolated instances o f contract breach “that did not significantly impact the bargaining unit.” The referee recomme nded dismissal of the charge. The Association filed exceptions, which MERC found unavailing. MERC dismissed the Association’s charge, an d this appeal followed.

MERC’s factual findings are co nclusive when they are “supporte d 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 ME RC’s “factual findings . . . must

1 The Association filed an amended charge approximately four mon ths later, which provided allegations relating to member Lisa LaForest. Claims related t o LaForest were settled at
conference.

2 Const 1963, art 6, § 28 provides in part:

All final decisions, findings, ru lings and orders of any admin istrative officer or agency existing under the constitution or by law, wh ich 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, a s a minimum, the determination whether such final decisions, findings, rulings a nd 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 o n the whole
record. . . .-3- be undertaken with sensitivity, and due deference must be accor ded to administrative expertise.” Gogebic Community College Mich Ed Support Pe rsonnel Ass’n v Gogebic Community College

, 246 Mich App 342, 348-349; 632 NW2d 517 (2001) (citation omitte d).

“MERC’s legal determinations may not be disturbed unless they violate a constitutional or statutory provision or they ar e based on a substantial and m aterial 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 ME RC 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 cit ation omitted).

Public labor relations in Michig an are governed by the Michiga n 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 rep resentatives of its public employees . . . .” MCL 423.210(1). In order to bargain collec tively, the parties must meet and “confer in good faith with respect to wages, hours, and other t erms and conditions of employment,” MCL 423.215(1), which are known as the mandatory s ubjects 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 p reserved and neither management, nor labor, may unilaterally modi fy the agreement without the co nsent 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 int erpretation when the agreement provides a grievance process that culminates in arbit ration.” Macomb Co v AFSCME
Council 25 , 494 Mich 65, 80; 833 NW2d 225 (2013) (internal quotation mark s and citation omitted). However, MERC has long held that it will find an unf air labor practice when an employer’s unilateral modificati on of a CBA amounts to repudiat ion 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 it s 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 N o. C12 K-223), issued April 10, 20 14.

“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 Comm ission 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 contrac t 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 641-4- (1981) (noting that MERC “has held that when the action involve s a good-faith dispute as to contract interpretation, it w ill not assert jurisdiction”).

The Association argues that MERC erred in not finding repudiat ion because the District repudiated Articles 7 and 8 of the CBA, the provisions governin g recalls and assignments for vacancies. We disagree because we find no error in MERC’s adop tion of the ALJ’s reasoning that even if respondent breached the contract by its delay in r ecalling Franklin and Loveday,
these were isolated instances of contract breach “that did not significantly impact the bargaining unit.” The Association essentially argues that, when consideri ng the effect of the District’s actions on the bargaining unit, other teachers covered by a pre vious settlement regarding recall
should also be considered. Yet , even though the Association di d not make this specific argument to MERC, MERC noted that the Association “did not produce evide nce that any other teachers were denied timely recall, nor was there evidence that [the Dis trict] refused to recognize its contractual duty to recall laid off teachers.” Indeed, the Ass ociation does not cite the record for support of its assertion that “nearly half of the bargaining un it members were laid off and not recalled in a timely manner.” Considering that the evidence on ly pertained to two of the unit’s members, MERC’s finding that any breach of the CBA did not sign ificantly impact the bargaining unit was “supported by competent, material, and subs tantial evidence.” MCL 423.216(e).

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

Affirmed.

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