*1 170 January 17, 2013 No. 4
IN THE SUPREME COURT OF THE STATE OF OREGON ASSOCIATION OF OREGON CORRECTIONS EMPLOYEES, Petitioner on Review , v .
STATE OF OREGON and Department of Corrections, Respondents on Review .
(UP 3303; CA A143552; SC S059971) On review from the Court of Appeals.* Argued and submitted September 21, 2012.
Becky Gallagher, Fenrich & Gallger, P.C., Eugene, argued the cause and led the brief for petitioner on review.
Leigh A. Salmon, Assistant Attorney General, Salem, argued the cause and led the brief for respondents on review. With her on the brief were Mary H. Williams, Deputy Attorney General, and Anna M. Joyce, Solicitor General.
Todd A. Lyon, Barran Liebman LLP, Portland, led the brief for amicus curiae Oregon Public Employer Labor Relations Association and The League of Oregon Cities.
Jason A. Weyand, Senior Legal Counsel, Oregon AFSCME, Salem, led the brief for amicus curiae Oregon AFSCME. With him on the brief was Jennifer K. Chapman.
Before Balmer, Chief Justice, Kistler, Walters, Linder, and Landau, Justices, and Durham and De Muniz, Senior Judges, Justices pro tempore.** ______________ ** On judicial review from the nal order of the Employment Relations Board,
dated July 23, 2009.
WALTERS, J.
The decision of the Court of Appeals is reversed, and the case is remanded to the Court of Appeals for further proceedings. *2 The Association of Oregon Corrections Employees (AOCE) brought an unfair labor practice claim against the Department of Corrections (DOC), alleging that DOC had changed the schedules of its employees without rst bargaining with
the AOCE in violation of the Public Employees Collective Bargaining Act. The Employment Relations Board (ERB) held in favor of AOCE, determining that DOC had not demonstrated that AOCE contractually had waived its statutory right to bargain. The Court of Appeals reversed, holding that ERB had erred in using the waiver analysis to evaluate DOC’s contractual defense, and determining that the CBA unambiguously granted DOC the right to make the changes at issue. Held : (1) ERB did not err when it utilized a waiver analysis to evaluate DOC’s contrac- tual defense; (2) ERB did not err when it concluded that the terms of the parties’ collective bargaining agreement did not constitute a clear and unmistakable waiv- er of AOCE’s right to bargain over the contested changes to employee schedules. The decision of the Court of Appeals is reversed, and the case is remanded to the Court of Appeals for further proceedings.
WALTERS, J.
The Department of Corrections (DOC), a public
employer, made changes to its employees’ scheduled days off
and their shift stop and start times without first bargaining
with representatives of the employees’ union, the Association
of Oregon Corrections Employees (AOCE). As an affirmative
defense to AOCE’s ensuing complaint alleging that DOC had
committed an unfair labor practice, DOC asserted that the
terms of the parties’ collective bargaining agreement (CBA)
permitted its unilateral action. The Employment Relations
Board (ERB) rejected DOC’s argument and concluded that
DOC had committed an unfair labor practice under ORS
243.672(1)(e). The Court of Appeals reversed.
Assn. of
Oregon Corrections Emp. v. State of Oregon
,
I. FACTS AND PROCEDURAL BACKGROUND *3 AOCE is the exclusive representative of a bargaining unit of correctional officers, sergeants, and corporals employed by DOC, a public employer, at the Oregon State Penitentiary. AOCE and DOC were parties to a collective bargaining agreement that was effective from July 1, 2001, through June 30, 2003. Shortly before May 27, 2003, AOCE learned that DOC intended to post a new work schedule. The new schedule changed, among other things, employees’ scheduled days off and their shift start and stop times. At a bargaining meeting on May 27, 2003, AOCE informed DOC that, in its view, the intended changes affected mandatory subjects of bargaining and that DOC would be committing an unfair labor practice if it implemented them without bargaining with AOCE. On May 30, 2003, DOC posted the new schedule. On June 27, 2003, AOCE filed a complaint [1] ORS 243.672(1)(e) provides, in part: “(1) It is an unfair labor practice for a public employer or its designated
representative to do any of the following: “* * * * * “(e) Refuse to bargain collectively in good faith with the exclusive
[bargaining] representative [of its employees].” 173 with ERB alleging, among other things, that DOC had committed an unfair labor practice under ORS 243.672(1)(e), the provision of the Public Employees Collective Bargaining Act (PECBA) that prohibits a public employer from refusing to bargain collectively in good faith with the bargaining representative of its employees.
DOC denied AOCE’s allegations and raised a number of af rmative defenses, one of which alleged that “the Collective Bargaining Agreement allows management to set the work schedule(s).” For that contractual defense, DOC relied on Article 3 of the CBA, which included a management rights clause providing that DOC “retains all inherent rights of management” and “retains all rights to direct the work of its employees, including but not limited to, the right * * * to schedule work * * * except as modi ed or circumscribed by the terms of this Agreement.” DOC also alleged as a separate af rmative defense that AOCE had waived its right to bargain by failing to le a timely demand, as required by ORS 243.698(3).
ERB rst determined that “scheduling the particular hours of the day and days of the week that an employee is assigned to work constitutes ‘hours of work’, a per se mandatory subject of bargaining under ORS 243.650(7)(a).” Ass’n of Oregon Corr. Employees v. State of Oregon, Dep’t of Corr., 20 PECBR 890 (2005). ERB then concluded that DOC had made a unilateral change with respect to those matters and, thus, had committed an unfair labor practice. [3] Id. at 899. In doing so, ERB rejected DOC’s contractual defense, practice under ORS 243.672(1)(e) not only by unilaterally altering employee days assignments. provision of the CBA and the rank that employees must hold to bid on certain off and start-stop times for shifts, but also by unilaterally altering the incumbency In its complaint, AOCE alleged that DOC had committed an unfair labor *4 concerning the incumbency provision as a grievance or through an unfair labor 243.672(1)(e). ERB determined that AOCE was required to raise its claim practice for a party to violate the provisions of any written contract with respect complaint under ORS 243.672(1)(g), which provides that it is an unfair labor to employment relations. ERB determined that DOC was not required to bargain over the changes that it made to employee ranking because those changes concerned the assignment of duties and minimum quali cations, both of which are permissive subjects for bargaining. ORS 243.650(7)(g). AOCE did not challenge those aspects ERB’s decision in the Court of Appeals. ERB rejected AOCE’s other allegations that DOC had violated ORS determining that DOC had not demonstrated that AOCE contractually had waived its statutory right to bargain over the contested changes. Id. at 899-900.
DOC appealed to the Court of Appeals. Its primary
argument on appeal was that ERB had erred in its analysis
of DOC’s contractual defense. ERB had erred, DOC
contended, in evaluating the CBA to determine whether
DOC had demonstrated a waiver of the statutory right to
bargain. Instead, DOC argued, ERB legally was required
to decide, as an initial matter, whether the CBA authorized
DOC to make the changes at issue. The court agreed with
DOC and did not reach DOC’s other arguments: that Article
3 constituted a waiver of AOCE’s right to bargain even
under ERB’s waiver analysis, and that AOCE had waived its
right to bargain by failing to le a timely demand to bargain
under ORS 243.698(3). The Court of Appeals reversed and
remanded the case to ERB, instructing ERB to determine
in the rst instance “whether, under the terms of the CBA,
DOC was authorized to make the changes * * * that it did.”
Association of Oregon Corrections Employees v. DOC
, 209
Or App 761, 770,
On remand, ERB determined that the terms of
the CBA were ambiguous and, after considering extrinsic
evidence, concluded that the parties had not authorized
DOC to make the contested changes.
Ass’n of Oregon Corr.
Employees v. State of Oregon, Dep’t of Corr.
, 23 PECBR
222 (2009). The Court of Appeals again reversed.
AOCE II,
concluded, even if AOCE’s statements were insuf There is no requirement that a union demand to bargain, ERB explained, when .” fait accompli the employer already has made the unilateral change. Id . at 900-01. changes would constitute an unfair labor practice, were suf formal demand to bargain under these circumstances. According to ERB, AOCE’s cient. Moreover, ERB statements, in which it contested DOC’s scheduling changes and argued that those to le a timely demand to bargain, ERB held that PECBA does not require a As to DOC’s defense that AOCE had waived its right to bargain by failing *5 175
Before we begin our discussion of the issues for our consideration, we note that DOC does not dispute that (1) employees’ days off and shift stop and start times are mandatory subjects of bargaining; (2) DOC had a statutory obligation and AOCE had a statutory right to bargain over those matters; and (3) DOC made changes to those matters without fi rst bargaining with AOCE. Thus, whether ERB was correct in concluding that DOC committed an unfair labor practice under ORS 243.672(1)(e) depends on whether ERB was correct in deciding that DOC had not established a suf fi cient af fi rmative defense to the charge that it made a change in a mandatory subject of bargaining without fi rst bargaining with AOCE.
The fi rst issue that we must reach in deciding that question is the correct legal framework by which to measure DOC’s af fi rmative defense. In its 2005 decision, ERB had used a waiver analysis—an analysis that the Court of Appeals rejected in AOCE I. AOCE did not petition for review in AOCE I . Therefore, ERB used the method of analysis that the Court of Appeals required in AOCE I when it considered DOC’s af rmative defense on remand in 2009 and again concluded that DOC had committed an unfair labor practice under ORS 243.672(1)(e). The question before us on review of the Court of Appeals decision in AOCE II is whether ERB was correct in its conclusion. Because whether DOC committed an unfair labor practice depends on the merits of its af rmative defense, we must decide, as an initial matter, the appropriate legal framework by which to evaluate that defense, and we must do so despite the fact that that matter was directly at issue in AOCE I and is only indirectly at issue here . The correct legal measure of DOC’s af rmative defense is so inextricably intertwined with its merits that we consider the following questions in turn: First, did ERB err in deciding that, to prevail on its contractual defense, DOC was required to demonstrate that the terms of the CBA established a clear and unmistakable waiver of AOCE’s statutory right to bargain? Second, did ERB err in concluding that the terms of the CBA did not meet the correct legal standard?
we asked the parties for supplemental brie considered that brie ng on that issue. We have received and ng. Because the , AOCE I rst of those questions was directly presented only in
II. ERB’S WAIVER ANALYSIS We begin our inquiry into whether ERB erred in its waiver analysis of DOC’s contractual defense with the applicable unfair labor practice statute—ORS 243.672(1)(e)— which provides, in part:
“(1) It is an unfair labor practice for a public employer or its designated representative to do any of the following: “* * * * *
“(e) Refuse to bargain collectively in good faith with the exclusive [bargaining] representative [of its employees].” *6 “Collective bargaining” is de fi ned in ORS 243.650(4) as
“the performance of the mutual obligation of a public employer and the representative of its employees to meet at reasonable times and confer in good faith with respect to employment relations for the purpose of negotiations concerning mandatory subjects of bargaining, to meet and confer in good faith in accordance with law with respect to any dispute concerning the interpretation or application of a collective bargaining agreement, and to execute written contracts incorporating agreements that have been reached on behalf of the public employer and the employees in the bargaining unit covered by such negotiations.” (Emphasis added.)
“Employment relations”—about which a public employer must bargain in good faith—is de ned in ORS 243.650(7)(a) to include
“matters concerning direct or indirect monetary bene ts, hours , vacations, sick leave, grievance procedures and other conditions of employment.” (Emphasis added.) “Employment relations” is further de ned in ORS 243.650(7)(g) to exclude “scheduling of services provided to the public[.]”
Thus, a public employer commits an unfair labor
practice under ORS 243.672(1)(e) if it refuses to bargain with
respect to matters that are included within, and not excluded
by, the de nition of “employment relations.” Those matters
are referred to as “mandatory” subjects of bargaining.
See Tualatin Valley Bargaining v. Tigard School Dist.
, 314 Or
274, 277,
As DOC acknowledges, a public employer commits a per se violation of ORS 243.672(1)(e) if it makes a unilateral change regarding a mandatory subject of bargaining while the employer has a duty to bargain. See Wasco County v. AFSCME , 46 Or App 859, 613 P2d 1067 (1980) (upholding ERB’s authority to adopt “violation per se ” analysis of unilateral changes). When reviewing an allegation of unlawful unilateral change, ERB considers (1) whether an employer made a change to an “established practice,” often referred to as the “status quo”; (2) whether the change concerned a mandatory subject of bargaining; and (3) whether the employer exhausted its duty to bargain. Ass’n of Oregon Corr. Employees , 20 PECBR 890, 897. When asserted, ERB also considers an employer’s af rmative defense of waiver:
“A party may waive its right to bargain through (1) ‘clear and unmistakable’ contract language, (2) a bargaining history that shows the party consciously yielded its right to bargain, or (3) by the party’s action or inaction.” Id.
At issue in this case is ERB’s use of the waiver
standard to evaluate DOC’s contractual defense. DOC
does not contend that ERB’s recognition of an af rmative
defense of waiver is beyond its statutory authority or
con fl icts with ORS 243.672(1)(e) or any other provision of
*7
PECBA. Instead, DOC argues that ERB erred in con ning
its analysis of DOC’s contractual defense to a consideration
of whether the parties’ collective bargaining agreement
demonstrated a clear and unmistakable waiver of AOCE’s
8(a)(5) of the National Labor Relations Act (NLRA). The Supreme Court explained
the rationale for that rule in Labor Relations Board to enforce the duty to “bargain collectively” under section
the relevant term).
if it makes a unilateral change to employment conditions without bargaining over
L Ed 2d 230 (1962) (holding that an employer violates section 8(a)(5) of the NLRA
,
Before we consider DOC’s arguments, it is helpful
to trace the origins of ERB’s waiver analysis. ERB initially
applied the waiver analysis in considering an employer’s
contract defense to an unfair labor practice charge in
Corvallis School Dist. 509J v. Oregon School Employees Ass’n,
Chapter No. 2
, 6 PECBR 5409 (1982). ERB took guidance
from cases decided by the National Labor Relations Board
(NLRB) under the National Labor Relations Act (NLRA),
the federal act on which PECBA was modeled.
Elvin v.
OPEU
,
The NLRB rst applied a waiver analysis in
considering an employer’s contractual defense to an unfair
labor practice charge in Tidewater Associated Oil Company,
The United States Supreme Court af rmed the
NLRB’s application of waiver as a defense to an unfair
labor practice charge in
Metropolitan Edison Co. v. NLRB
,
“[W]e will not infer from a general contractual provision that the parties intended to waive a statutorily protected right unless the undertaking is ‘explicitly stated.’ More succinctly, the waiver must be clear and unmistakable.” Id . at 708.
29 USC § 158(a)(3) provides, in part:
“(a) * * * It shall be an unfair labor practice for an employer “* * * * * “(3) by discrimination in regard to * * * any term or condition of
employment to encourage or discourage membership in any labor organization
* * *.”
determined
that, although a waiver could be valid if it were “explicitly stated,” the terms
compelling expression” of the waiver was required. of the collective bargaining agreement at issue were not clear enough: a “more
strike over an unfair labor practice. The Court in
Mastro Plastics
. at 283.
Id Board
c right to
the question whether a general no-strike provision waived the speci ,
The NLRB continues to use the same waiver *9 analysis that it articulated in Tidewater . See Provena St. Joseph Medical Center , 350 NLRB 808, 815 (2007) (when an employer in a unilateral change case asserts that the contract authorizes it to act unilaterally, the employer must prove its defense by clear and unmistakable contract language). See also John E. Higgins ed., 1 The Developing Labor Law 1068 (6th ed 2012) (“Consistent with the traditional common law view of waiver, the [NLRB] [has] * * * con ned the waiver doctrine narrowly and [has] been reluctant to infer a waiver.”). [10]
In
Oregon School Employees Ass’n v. Bandon School
Dist. #54
, 19 PECBR 609 (2002), ERB decided to adhere to
the waiver analysis that it had articulated in
Corvallis
.
That analysis, ERB explained, was “historically recognized
by [ERB] and the private sector,” is “well-established,” and
“there is a large body of case law available for guidance in
deciding such cases.”
Id
. at 623-24. Considering the purposes
of PECBA, ERB determined that a waiver analysis was
most appropriate because it “keeps the focus where it should
be: on the general rule that there is a continuing duty to
bargain during the contract term over mandatory subjects
Murphy Diesel Company. v.
Co. v. N.L.R.B.
, 602 F2d 184, 188-89 (8th Cir 1979); ,
As noted, DOC does not contend that ERB’s waiver
defense exceeds its statutory authority or constitutes legal
error; instead, it contends that, under PECBA and this
court’s decision in
Rainier School Dist. No. 13
,
We return rst to the text of ORS 243.672(1)(e), set
out
infra
,
DOC’s argument that ERB’s waiver analysis con fl icts with the purposes of PECBA is not convincing. ERB’s analysis does not undermine the sanctity of the written labor contract or inject uncertainty or instability into the labor- management relationship. If an employer and a union agree by written contract terms that, going forward, the employer will have the right to make unilateral changes to employees’ terms and conditions of employment, then those contract terms will establish a waiver of the union’s statutory right to bargain over those issues and will be enforced. The parties can avoid uncertainty and instability by making the employer’s right to take that future unilateral action clear and unmistakable. The parties also may use ORS 243.672 to address alleged contract violations. ORS 243.672 makes it an unfair labor practice for a public employer or public employee to “[v]iolate the provisions of any written contract with respect to employment relations.” ORS 243.672(1)(g); ORS 243.672(2)(d). If a collective bargaining agreement requires or permits certain action, a party that alleges a failure to comply with such a provision may le an unfair labor practice complaint alleging a contractual violation under that statute. ERB’s waiver analysis does not con fl ict with the terms of PECBA or thwart the legislature’s intent or purpose.
We also are not persuaded that ERB’s waiver
analysis is legally erroneous because it is contrary to this
court’s decision in
Rainier School Dist. No. 13
,
The fact that a collective bargaining agreement
is a contract and must be construed as such does not
preclude ERB from requiring that contract terms offered
to establish an af rmative defense to a charge under ORS
243.672(1)(e) be evaluated under a waiver rubric. Absent a
suf cient af rmative defense, a union has a statutory right
to insist that an employer bargain over mandatory subjects
before making changes to the status quo. 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.’ ”
Johnson v. Swaim
, 343 Or
423, 431,
claims that alleged that DOC had failed to bargain in good faith under ORS AOCE in violation of ORS 243.672(1)(g). A breach of the CBA alone, the ERB 243.672(1)(e) and those that alleged that DOC had breached its contract with explained, does not constitute bad faith bargaining; rather, such claims must be raised as grievances under the CBA or through an unfair labor practice complaint Ass’n of Oregon Corr. Employees under ORS 243.672(1)(g). , 20 PECBR 890 (2005). In its 2005 decision in this proceeding, ERB distinguished between AOCE’s
This court’s statement in Rainier School Dist. No. 13 does not preclude ERB’s waiver analysis, nor does it compel the analysis for which DOC advocates. As the United States Supreme Court explained in Mastro Plastics Corp. v. Labor Board , 350 US 270, 279, 76 S Ct 349, 100 L Ed 309 (1956), collective bargaining agreements are like other contracts in that they “must be read as a whole and in the light of the law relating to it when made,” but, when the terms of a collective bargaining agreement are raised to contest a union’s statutory right, the contract terms must demonstrate that the union waived that right.
Finally, ERB’s analysis does not ignore, but in fact requires, consideration of the preliminary step in any unilateral change claim—whether there has been a change in the status quo. As noted, the fi rst step in ERB’s unfair labor practice inquiry is whether the employer made a change to an “established practice.” To make that determination, ERB considers “[w]hether the parties have, by their words or actions, de ned their rights and responsibilities with regard to a given employment condition.” Coos Bay Police Of cers’ Ass’n v. City of Coos Bay , 14 PECBR 229, 233 (1993) . ERB looks to a variety of sources, including not only the terms of a current or an expired collective bargaining agreement, but work rules, policies, and an employer’s “pattern of behavior.” Id . Thus, ERB does consider the terms of the parties’ collective bargaining agreement, among other factors, in its analysis of whether the employer has made a change to the status quo.
DOC has not convinced us that PECBA or any other provision of Oregon law required ERB to adopt a different analysis in its consideration of whether an employer has made a unilateral change in violation of ORS 243.672(1)(e). When an employer relies on contract terms as an af rmative defense against a charge that it changed the status quo without rst bargaining with the union, ERB may consider those terms in evaluating whether they demonstrate that the union waived the right to bargain about such changes. The law does not demand that ERB rst consider those contract terms to determine, under the status quo rubric, whether they authorized the employer’s action. Such a requirement would effectively displace the waiver analysis as a contract-based af rmative defense to a charge under ORS 243.672(1)(e), and we can discern no legal basis for imposing it.
In summary, the Court of Appeals was incorrect *13 when it decided in AOCE I that ERB had erred in its use of the waiver analysis to evaluate the merits of DOC’s contractual af rmative defense. ERB’s waiver analysis recognizes that the duty to bargain under ORS 243.672(1) (e) continues after the parties have entered into a collective bargaining agreement and that a union retains its right to bargain on mandatory subjects of bargaining unless it waives that right.
III. APPLICATION OF WAIVER ANALYSIS Because the Court of Appeals determined in AOCE I that ERB had erred in its waiver analysis, the court did not reach DOC’s alternative argument that, even if ERB were correct in its use of that analysis, ERB erred in concluding that the contract terms on which DOC relied did not establish a clear and unmistakable waiver of AOCE’s statutory right to bargain about changes to employees’ scheduled days off and their shift stop and start times. We address that argument now. For the following reasons, we hold that ERB did not err in its interpretation of the parties’ collective bargaining agreement.
As noted, DOC invokes Article 3 of the CBA, which provides:
“The Association agrees that the Employer retains all inherent rights of management and hereby recognizes the sole and exclusive right of the State of Oregon , as the Employer, to operate and manage its affairs in accordance with its responsibilities to maintain ef cient governmental operations. The Employer retains all rights to direct the work of its employees , including, but not limited to, the right to hire, promote, assign, transfer, demote, suspend, or discharge employees for proper cause; to schedule work ; determine the processes for accomplishing work; to relieve employees from duties because of lack of work or for other legitimate reasons; to take action as necessary to carry out the missions of the State; or determine the methods,
means, and personnel by which operations are to be carried on, except as modi ed or circumscribed by the terms of this Agreement. The retention of these rights does not preclude any employee from ling a grievance, pursuant to Article 44, Grievance and Arbitration Procedure, or seeking a review of the exercise of these rights, when it is alleged such exercise violates provisions of this agreement.” (Emphasis added.)
In its 2005 decision, which was at issue in AOCE I , ERB recognized that the legislature had distinguished between scheduling services to the public and scheduling employee work hours. Ass’n of Oregon Corr. Employees , 20 PECBR at 897-98. The latter was a mandatory subject of bargaining, the former was not. ERB explained that, in Article 3, the parties could have been referring to either subject:
“It is unclear * * * whether the language applies to scheduling services to the public, or instead to individual employee work hours. The language might also apply to the employer’s decision about when during the day to schedule *14 a particular task, rather than to the hours a particular employee works.”
Id. at 900. “One point is clear,” ERB concluded: “[T]he provision does not expressly give DOC the right to unilaterally change the start/stop times and days off of employees. Such ambiguity and lack of speci city preclude us from nding a ‘clear and unmistakable’ waiver of bargaining over these subjects.” Id .
When ERB reconsidered its decision in 2009 after remand by the Court of Appeals in AOCE I , ERB described the phrase “inherent rights of management” in Article 3 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.” Ass’n of Oregon Corr. Employees, 23 PECBR at 237. 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 employer must bargain in good faith, includes “matters concerning * * * hours[.]” services provided to the public.” Under ORS 243.650(7)(g), “employment relations” does not include “scheduling of Under ORS 243.650(7)(a), “employment relations” about which a public
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.” Id. at 238. That interpretation was bolstered, ERB noted, by the use of the word “retain” in Article. A party cannot retain, ERB reasoned, something that it never had in the rst place. Thus, one plausible reading of Article 3 was that it authorized DOC to keep only those rights that it had prior to negotiating that provision ( i.e. , the right to schedule services to the public); it did not grant DOC rights that it did not have ( i.e. , the right to schedule employee work hours unilaterally). Prior to negotiating Article 3, DOC did not have the right unilaterally to change employee work hours, a mandatory subject for bargaining, and, ERB concluded, Article 3 did not unambiguously bestow that right.
In AOCE I , DOC argued to the Court of Appeals that the CBA granted DOC the broad right to “schedule work” and that, in the exercise of that right, DOC necessarily had to determine when such work would start and stop and on what days the work would occur. The fact that DOC’s right to schedule might also encompass the scheduling of tasks did not mean that the provision was “ambiguous”; rather, DOC argued, it was merely an indication that DOC’s scheduling powers were broad.
DOC renews its argument in this court. Citing UFORMA/Shelby Business Forms, Inc. v. N.L.R.B. , 111 F3d 1284, 1290 (6th Cir 1997), DOC contends that a broadly worded management rights clause operates as a clear and unmistakable waiver of a union’s right to bargain with respect to subjects covered by that clause. We are not convinced. As ERB explained, there is a question in this case about the subject matter that is covered by Article 3. In theory, Article *15 3 could cover scheduling employee work hours. However, given ERB’s prior interpretation of the term of art included in that Article and the parties’ use of the word “retain,” ERB did not err in concluding that the meaning of the term “to schedule work” in Article 3 also could be limited to directing the work of employees and scheduling the services that they provide to the public. Consequently, ERB also did not err in concluding that Article 3 did not clearly and unmistakably waive its statutory right to bargain over changes to employees’ scheduled days off and their shift stop and start times.
IV. FAILURE TO FILE DEMAND TO BARGAIN DOC also asks that we address an additional argument—that AOCE waived its right to bargain about the changes that DOC made by failing to fi le a demand to bargain within 14 days as required by ORS 243.698(3). The Court of Appeals did not reach that argument in AOCE I or AOCE II , and, because it involves arguments that differ signi fi cantly from those we address here, we remand to permit the Court of Appeals to consider those issues in the rst instance.
The decision of the Court of Appeals is reversed, and the case is remanded to the Court of Appeals for further proceedings. that a union ‘clearly and unmistakably’ waived a bargaining right which might
parties’ intent. Moreover, most are worded so broadly that it cannot be concluded of either party at the time of the purported waiver.”). never mature, and which concerns a subject not demonstrably in the contemplation nd Communities Hospital , 13 PECBR 753, 767 (1992) (“This Board does not often * * * clauses * * * typically nd their way into contracts with little discussion of the a waiver of future bargaining rights in contract language. * * * Management rights cers v. Washington County Parole and Probation Of language typically found in management rights clauses does not constitute a waiver); Days Creek Ass’n of Classi Service Employees Int’l Union, Local #49 v. Paci PECBR 187, 202 (1995) (same); , 16 ed Employees v. Days Creek School Dist. 15 c , 19 PEBCR 411 (2001) (general ERB’s ruling is consistent with its own prior case law. See Fed’n of Oregon