By David Worley
In Ass’n of Oregon Corrections Employees v. Oregon, 194 LRRM 3250 (Or. 2013), the Oregon Supreme Court affirmed the Oregon Employment Relations Board’s (ERB) decision, and overruled the Appeals Court, when it found that a broad management rights clause does not satisfy the burden of proof to prove that the union waived its statutorily guaranteed rights to bargain on mandatory subjects. The Court found that the lower Court had applied the wrong standard in overturning the decision of the ERB.
The controversy stemmed from a unilateral change of the hours of work at a corrections facility, including starting and ending times, length of shifts, and break times, by the employer. The union objected prior to the implementation of the change, and filed a ULP immediately after the implementation of the changes.
The ERB correctly determined the union had not waived its right to bargain, contrary to the assertions of the employer. Although included in the CBA was a broad management rights clause that gave the employer unilateral control over the “inherent rights of management,” this was not sufficient to prove a waiver by the union existed.
First, the court determined the standard by which a claimed waiver will be evaluated.
The general rule in Oregon is that, although waivers of constitutional and statutory rights may be expressed through contract terms, those terms must clearly indicate an “‘intention to renounce a known privilege or power.’”
Noting that the Court of Appeals applied the wrong standard (doing a simple contractual analysis and requiring clear and convincing language to prove waiver), the court then turned to the actual existence of a waiver, and found none existed:
The ERB [correctly] described the phrase “inherent rights of management” as one that is commonly used in labor law and stated that it had repeatedly used the phrase to refer to subjects that are permissive for bargaining. ERB concluded that the phrase is a term of art in labor-management relations, and the parties used the phrase as it is commonly understood in the labor-management community. Use of the phrase indicates that the parties intended the management rights clause to apply only to permissive subjects for bargaining. If so, the clause would not apply to work hours issues such as employee start-stop times and days off because they concern mandatory subjects for bargaining.
