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Oregon Guards Challenge Schedule Changes Without Collective Bargaining

The Oregon Supreme Court reversed a lower court's holding that the Department of Corrections (DOC) did not commit an unfair labor practice in failing to bargain with its employees' union, the Association of Oregon Corrections Employees (AOCE).

AOCE and DOC were parties to a collective bargaining agreement (CBA) between July 1, 2001 and June 30, 2003. In the final month of that agreement AOCE learned that DOC intended to post a new work schedule, changing scheduled days off and shift start and stop times.

At a May 27, 2003 bargaining meeting, AOCE informed DOC that the intended changes were mandatory subjects of bargaining and DOC would be committing an unfair labor practice if it implemented them without bargaining. DOC disagreed and posted the new schedule on May 30, 2003.

On June 27, 2003, AOCE filed a complaint with the Employment Labor Relations Board (ERB), alleging that DOC committed an unfair labor practice under ORS 243.672(1)(e). DOC denied the allegations and asserted several affirmative defenses, including "that AOCE had waived its right to bargain by failing to file a timely demand, as required by ORS 243.698(3).

ERB ultimately concluded that DOC had made a unilateral change and committed an unfair labor practice. It rejected DOC's affirmative defense, holding that no formal demand to bargain was required under the circumstances. Additionally, "even if AOCE's statements were insufficient to constitute a demand under ORS 243.698(3)," the ERB concluded that "DOC's unilateral implementation of the schedule three days after AOCE had objected 'essentially presented AOCE with a fait accompli.' There is no requirement that a union demand to bargain… when the employer already has made the unilateral change."

DOC appealed and the Oregon Court of Appeals agreed that the ERB erred in its analysis of DOC's contractual defense, but did not address any of DOC's other arguments. AOCE v. DOC, 209 Or.App 761, 149 P.3d 319 (2006)(AOCE I). The court remanded to ERB, with instructions to decide whether DOC was authorized to make the changes it did under the terms of the CBA.

On remand, the ERB determined that the CBA's terms were ambiguous but concluded that DOC was not authorized to make the contested changes. The Court of Appeals again reversed, concluding that the CBA's terms unambiguously granted DOC the right to make the contested changes and that ERB erred in concluding that DOC committed an unfair labor practice under ORS 243.672(1)(e). AOCE v. Oregon, 246 Or.App 477, 268 P.3d 627 (2011)(AOCE II).

The Oregon Supreme Court reversed, concluding that "the Court of Appeals was incorrect 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 affirmative 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."

Noting that the Court of Appeals did not address DOC's waiver argument in AOCE I or AOCE II, the Court remanded for the Court of Appeals to decide whether "AOCE waived its right to bargain about the changes that DOC made by failing to file a demand to bargain within 14 days as required by ORS 243.698(3)." See: AOCE v. Oregon, 353 Or. 170, 295 P.3d 38 (Or. 2013).

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Related legal case

AOCE v. Oregon