Submitted on Remand March 25, 2013
Employment Relations Board. UP3303. On remand from the Oregon Supreme Court, Assn. of Oregon Corrections Emp. v. State of Oregon, 353 Or. 170, 295 P.3d 38 (2013) .
John R. Kroger, Attorney General, Jerome Lidz, Solicitor General, David B. Thompson, Interim Solicitor General, and Leigh A. Salmon, Assistant Attorney General, for petitioners.
Becky Gallagher and Garrettson, Gallagher, Fenrich & Makler, P.C., for respondent.
Before Duncan, Presiding Judge, and Nakamoto, Judge, and Wollheim, Senior Judge.
[267 Or.App. 414] WOLLHEIM, S. J.
In our most recent opinion in this case, Assn. of Oregon Corrections Emp. v. State of Oregon, 246 Or.App. 477, 268 P.3d 627 (2011), rev'd and rem'd, 353 Or. 170, 295 P.3d 38 (2013), we held that the Employment Relations Board (ERB) erred in concluding that the Department of Corrections (DOC) committed an unfair labor practice under ORS 243.672(1)(e) in making mid-term, unilateral changes to Oregon State Penitentiary employees' scheduled days off and shift stop and start times without first bargaining with representatives of the employees' union, the Association of Oregon Corrections Employees (AOCE). We reasoned that the parties' collective bargaining agreement (CBA) unambiguously gave DOC the right to make the contested changes unilaterally. 246 Or.App.
at 485. Because we reversed ERB on that ground, we did not reach DOC's additional argument, that ERB erred in rejecting DOC's affirmative defense that AOCE waived its right to bargain mid-term about the changes by inaction, because it did not make a demand to bargain within 14 days of notice of the changes, as required by ORS 243.698(3).
In Assn. of Oregon Corrections Emp. v. State of Oregon, 353 Or. 170, 295 P.3d 38 (2013), the Supreme Court reversed this court's decision and held that, under ORS 243.650(7) and the parties' CBA, mid-term changes to employees' scheduled days off and their shift start and stop times were mandatory subjects of bargaining. The Supreme Court has now remanded the case to us for consideration of the issue that we did not reach in our previous decision in this case: Whether ERB erred in rejecting DOC's affirmative defense that AOCE waived its right to bargain by not timely demanding to bargain. We affirm ERB's conclusion that DOC did not establish its defense of waiver, and we therefore affirm ERB's order.
ORS 243.698 provides, in part:
" (1) When the employer is obligated to bargain over employment relations during the term of a collective [267 Or.App. 415] bargaining agreement and the exclusive representative demands to bargain, the bargaining may not, without the consent of both parties and provided the parties have negotiated in good faith, continue past 90 calendar days after the date the notification specified in subsection (2) of this section is received.
" (2) The employer shall notify the exclusive representative in writing of anticipated changes that impose a duty to bargain.
" (3) Within 14 calendar days after the employer's notification of anticipated changes specified in subsection (2) of this section is sent, the exclusive representative may file a demand to bargain. If a demand to bargain is not filed within 14 days of the notice, the exclusive representative waives its right to bargain ...