36TH DISTRICT COURT V MICHIGAN AFSCME COUNCIL 25
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STATE OF MICHIGAN
COURT OF APPEALS
36th DISTRICT COURT,
UNPUBLISHED
September 29, 2009
Respondent-Appellant,
v
No. 285123
MERC
LC No. 05-000139
MICHIGAN AFSCME COUNCIL 25 and
MICHIGAN AFSCME LOCAL 3308,
Charging Party-Appellee.
Before: Sawyer, P.J., and Cavanagh and Hoekstra, JJ.
PER CURIAM.
Respondent appeals as of right the order of the Michigan Employment Relations
Commission (MERC) adopting the administrative law judge’s recommendation and finding that
respondent had committed an unfair labor practice under MCL 423.210(1)(e). We affirm.
Respondent first argues that MERC’s decision that it repudiated the collective bargaining
agreement was contrary to competent, material, and substantial evidence on the whole record.1
We disagree.
The relevant standard of review was set forth in St Clair Co Intermediate School Dist v St
Clair Co Ed Ass’n, 245 Mich App 498, 512-513; 630 NW2d 909 (2001), as follows:
We review MERC decisions pursuant to Cont 1963, art 6, § 28, and MCL
423.216(e). The MERC’s factual findings are conclusive if they are supported by
competent, material, and substantial evidence on the record considered as a
whole. 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. The MERC’s legal conclusions may not be overturned unless
they violate the constitution, a statute, or are grounded in a substantial and
material error of law. In contrast to the MERC’s factual findings, its legal rulings
are afforded a lesser degree of deference because review of legal questions
1
This was the issue as presented in the “statement of questions involved” as required by MCR
7.212(C)(5).
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remains de novo, even in MERC cases.
omitted.]
[Citations and internal quotations
Our Supreme Court has observed that collective bargaining agreements “are contracts that
govern the terms and conditions of employment.” American Federation of State Co & Muni
Employees AFL-CIO Michigan Council 25 & Local 1416 v Bd of Educ of the School Dist of the
City of Highland Park, 457 Mich 74, 82; 577 NW2d 79 (1998). The Court further noted that,
“both employers and unions are free to negotiate the relative terms of their contracts, and are
able to settle on mutually agreed conditions governing the employees’ working conditions.” Id.
at 83. In memorializing the results of a matter that was subject to bargaining in a collective
bargaining agreement, the employer and the union “create[s] a set of enforceable rules – a new
code of conduct for themselves – on that subject.” Port Huron Ed Ass’n, MEA/NEA v Port
Huron Area School Dist, 452 Mich 309, 319; 550 NW2d 228 (1996).
“Under the doctrine of repudiation or anticipatory breach, if, before the time of
performance, a party to a contract unequivocally declares the intent not to perform, the innocent
party has the option to either sue immediately for the breach of contract or wait until the time of
performance.” Stoddard v Manufacturers Nat’l Bank of Grand Rapids, 234 Mich App 140, 163;
593 NW2d 630 (1999). An anticipatory breach of contract is defined as a “definite and
unequivocal manifestation of intention on the part of the repudiator that he will not render the
promised performance when the time fixed for it in the contract arrives.” 4 Corbin, Corbin on
Contracts, § 973, p 905. Moreover, under PERA, a midterm modification of a mandatory subject
of bargaining is prohibited absent agreement of both parties. St Clair Intermediate School Dist v
Intermediate Ed Asss’n/MEA, 458 Mich 540, 552-567; 581 NW2d 707 (1998). In turn, a
mandatory subject of bargaining is defined as a matter that has a “significant impact on
conditions of employment.” Oak Park Public Safety Officers Ass’n v City of Oak Park, 277
Mich App 317, 329; 745 NW2d 527 (2007).
Here, although respondent raised the issue whether the MERC properly affirmed the
administrative law judge’s conclusion that it repudiated the contract, respondent failed to
properly argue the merits of this issue. Specifically, respondent failed to cite to any authority in
support of its position that it did not repudiate the contract and, further, failed to explain why it
contends that there was no repudiation. It is not sufficient for a party “simply to announce a
position or assert an error and then leave it up to this Court to discover and rationalize the basis
for his claims, or unravel and elaborate for him his arguments, and then search for authority to
either sustain or reject his position.” Wilson v Taylor, 457 Mich 232, 243; 577 NW2d 100
(1998), quoting Mitcham v Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959). Because
respondent failed to properly argue the merits of its claim, we deem this issue abandoned on
appeal. See Wilson, supra. Nevertheless, if we had considered the matter, we would have
affirmed the MERC’s decision.
Next, respondent argues that the MERC erred in failing to conclude that the
“management rights clause” allowed respondent to reduce the employees’ work week. We
disagree.
The decision of an employer to reduce the number of its employees or reorganize
positions is within the management’s prerogative and does not constitute a mandatory subject of
bargaining. Ishpeming Supervisory Employees’ Chapter of Local 128, Michigan Council 25,
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AFSCME, AFL-CIO v City of Ishpeming, 155 Mich App 501, 508-516; 400 NW2d 661 (1986).
However, under MCL 423.215(1), “wages, hours, and other terms and conditions of
employment” are mandatory subjects of bargaining. Id. at 508. Here, respondent argues that it
acted within the scope of its managerial prerogative when it reduced the work week schedule by
implementing layoff days. The union responds that it does not dispute the employer’s right to
reduce its work force; rather, it argues, if the employer decides to exercise its prerogative, the
employer must do so in the manner provided under the previously negotiated contract.
We agree with the conclusion reached by the MERC—the definition of the “workweek”
provided under the contract precluded the application of the management rights clause because
“the collective bargaining agreement specifically addresses the number of days in the workweek
clearly and unambiguously[.]” We further agree with the MERC that, contrary to respondent’s
argument, although a reduction in respondent’s workforce would be within its prerogative under
the management rights clause, because respondent’s unilateral action here resulted in a
significant impact to the “wages, hours, and other terms and conditions of employment” of the
bargaining unit members, the management rights clause did not apply. In other words, if
respondent decided to reduce its workforce by laying off bargaining unit members, according to
the procedure set forth under the contract relating to seniority, then the management rights clause
would have protected respondent’s exercise of its managerial prerogative. Respondent’s actions
here exceeded the scope of its managerial prerogative. See Ishpeming, supra. Although we
acknowledge the harshness of this result, the procedure set forth under the contract was
negotiated and accepted by both parties.
Finally, respondent argues that MERC wrongfully inserted itself in what respondent
characterizes as a “good faith dispute over contract interpretation,” and further erred in holding
that respondent committed an unfair labor practice by acting in bad faith and/or refusing to
bargain. We disagree.
First, according to respondent, “an unfair labor practice proceeding is not the proper
forum for adjudication of a contract dispute” where the contract has “a grievance procedure with
final and binding arbitration.” However, the language of the contract addressing arbitration is
permissive, providing, in relevant part:
Only unresolved grievances which related to the interpretation,
application, or enforcement of any specific Article and Section of this Agreement
[. . .] may be submitted to arbitration . . .
The contract further states that: “Arbitration shall be invoked by written notice, certified mail,
return receipt requested to the other party of intention to arbitrate.” Here, even if respondent is
correct in its characterization of this litigation as a “bona fide contractual dispute,” according to
the permissive language of the contract, arbitration would be proper, but is not obligatory, as
respondent suggests. Moreover, there is no evidence in the record to demonstrate that either
party sought to arbitrate this matter.
Second, we agree with MERC that this was not a bona fide dispute over contract
interpretation. The collective bargaining agreement clearly and specifically addresses the
number of days in the work week thus the claim of a bona fide dispute is without merit. We also
agree with MERC’s conclusion that, because the change to a previously-negotiated contractual
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provision also involved a mandatory subject of bargaining, respondent was required to secure the
union’s consent before it imposed the change. St Clair Intermediate School Dist, supra at 552567. In other words, because of the significant impact of the proposed change2 on the members
of the bargaining unit, and because the change was in contravention to a previously-negotiated
term, respondent was required to bargain, and the union was not. Thus, respondent was
prohibited under MCL 423.210(1)(e) from implementing the mid-term modification of a subject
of mandatory bargaining in the absence of the union’s consent. Because respondent breached its
obligation to bargain and failed to secure the union’s consent before implementing the change to
the work week, MERC properly concluded that respondent repudiated the contract and thus
violated MCL 423.210(1)(e). See Intermediate School Dist, supra at 552-567.
Affirmed.
/s/ David H. Sawyer
/s/ Mark J. Cavanagh
/s/ Joel P. Hoekstra
2
The parties stipulated that the implementation of the furlough days would result in a 9.2 percent
reduction in wages and an increased workload.
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