Waiver Of Bargaining Rights Need Not Be In Writing

Written on 11/05/2022
Will Aitchison

The Portland Fire Fighters’ Associ­ation represents firefighters working for the City of Portland, Oregon. During the collective bargaining agreement for the period July 1, 2012, to June 30, 2016, the City realized that deep bud­get cuts were required for the 2013-14 fiscal year, and proposed cuts of $4.4 million from the City’s Fire Bureau. The City proposed to close four fire companies, which would have result­ed in a layoff of 26 bargaining-unit firefighters. The mayor also sought to implement “innovations,” by replac­ing the four companies with certain equipment.

The Association and the fire chief sought to avoid the layoffs. In May 2013, the Association, through its president Alan Ferschweiler, engaged in budget negotiations with the Chief and the Mayor’s policy adviser. Over the course of three meetings, the May­or’s liaison and Ferschweiler reached an oral agreement as to how the cuts would be implemented. Ferschweiler agreed not to contest the changes through the grievance procedure in the Association’s contract.

The oral agreement provided that, in exchange for the City’s agreement to preserve 26 firefighter positions, the City would apply for a “SAFER” grant to pay for those positions and provide bridge funding until the grant mon­ey became available. The agreement allowed the City to eliminate some promotional positions and implement innovations through new equipment, and the Association agreed not to grieve the cost-saving operational changes that would ordinarily have been subject to mandatory bargaining. The City adopted the budget, applied for the SAFER grant, and implemented the changes.

The Association challenged the changes through filing an unfair labor practice complaint with Ore­gon’s Employment Relations Board (ERB), asserting that the City had failed to bargain over mandatory subjects of bargaining and had made unilateral changes to operations. The City responded that Ferschweiler, on behalf of the Association, had waived the Association’s ability to object to unilateral changes by negotiating and orally agreeing to the budget and operational changes.

The case bounced between ERB and the Court of Appeals twice over the ensuing seven years. Eventually, the Court found that the Association had, in fact, waived its right to bargain over the budgetary and operational changes.

The Court ruled that “we reject the Association’s contention that the collective bargaining agreement itself required that an agreement to waive the right to bring an unlawful labor practice claim must be in writing. The provision on which the Association relies provided: ‘Any settlement of a grievance under this Article which would alter or amend the terms of this agreement, or any side bar agreement or memorandum of understanding shall not be binding unless the settlement, or memorandum of understanding or a side bar agreement, is approved in writing by the president of the Asso­ciation and the Director of the Bureau of Human Resources.’

“The Association contends that the agreement reached between the City and Ferschweiler was a ‘side bar agreement’ that the collective bargaining agreement required it to be in writing. As we understand the quoted paragraph, however, the requirement for a writing pertains to mid-contract settlements or ‘side bar agreements’ that would alter the bargained-for terms of the collective bargaining agreement. Although the contract terms could not be altered or amended except in writing, our case law separately provides that those terms can be waived, by ‘clear and unmistakable language in a contract, bargaining history, or the party’s action or inaction.’

“The waiver that ERB found had occurred did not change the terms of the collective bargaining agreement that would require bargaining over operational changes; it waived them, which is an affirmative defense that the law provides to a claim of a uni­lateral contract change. The collective bargaining agreement did not require that a waiver be in writing.

“Finally, we reject the Association’s contention that, if there was a waiver, it was limited to the right to grieve the unilateral changes and did not include a waiver of the right to bring an unfair labor practice claim. ERB found that the Association’s waiver encompassed all objections to the unilateral operational changes, and that the Association’s agreement not to contest the agreed-upon changes was central to the parties’ settlement of the budget dispute. We conclude that ERB’s finding that the agreement not to contest operational changes encompassed all objections to the operational changes is supported by substantial evidence.”

Portland Fire Fighters’ Association, 321 Or. App. 569 (2022).

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