By Jim Cline
The recent ruling of the Oregon Supreme Court in Association of Oregon Corrections Employees v. Oregon discussed on our blog, coincides with the Washington approach to contractual waivers. PERC has consistently ruled that waivers must be subject specific and that broad management rights language does not constitute a waiver of collective bargaining rights.
For a thorough discussion of waivers and their place in enforcing your collective bargaining rights, you can read Chapter 3 of The Rights of Washington Public Safety Employees Representative’s Manual. An electronic copy of the manual is contained on our premium website. As page 46 of the manual indicates:
PERC has consistently and repeatedly held that general management rights language contained in a contract does not constitute a waiver of bargaining rights. Because waivers must be consciously and knowingly made, management rights language will only be construed to be a waiver when specific as to the subject that is being waived.
The manual also explains:
Predicting when PERC will find language to be sufficiently specific to rise to the level of a waiver is often difficult. A review of PERC cases in this area indicates some degree of inconsistency as to how specific language must be to constitute a waiver. At the very least, though, it is clear that some type of subject must be referenced in the alleged waiver clause. But even language that mentions a subject will not be broadly construed; specificity is required.
The Oregon Labor Board (ERB) approaches waiver similar to PERC. As sometimes happens in labor decisions, lower courts do not always correctly apply basic labor law principles, but in this reported case, the Oregon Supreme Court ultimately corrected the error of the Oregon Court of Appeals and properly applied the waiver standard that is followed not only in Washington and Oregon but in most states, as well as the NLRB.
In our upcoming June training seminar, we will include an in depth discussion about the scope of collective bargaining and how waivers touch on those collective bargaining rights.
