The opinion
569
Argued and submitted June 7, affirmed September 8, 2022
PORTLAND FIRE FIGHTERS’
ASSOCIATION, IAFF LOCAL 43,
Petitioner,
v.
CITY OF PORTLAND,
Respondent.
Employment Relations Board
UP05913; A174891
518 P3d 611
In this petition for judicial review, the Portland Firefighters Association, IAF
Local 43 (the union), contends that, in an order on remand from Portland Fire
Fighters’ Assn. v. City of Portland, 302 Or App 395, 461 P3d 1001 (2020), the
Employment Relations Board (ERB) erred in holding that, through its actions
in negotiating budget cuts for the 2013-14 fiscal year from the City of Portland’s
Fire Bureau, the union waived its ability to bring an unfair labor practice claim
against the city under the Public Employees Collective Bargaining Act (PECBA).
The union contends that ERB erred because, under the collective bargaining
agreement, an agreement to waive requirements for collective bargaining on
operational changes was required to be in writing, and here there was no writ-
ten waiver. The union further contends that ERB’s conclusion that there was an
agreement to waive the right to challenge the operational changes is not sup-
ported by substantial evidence or substantial reason. Held: There was no require-
ment in the collective bargaining agreement that a waiver of the provisions of
PECBA’s provisions for collective bargaining of operational changes be in writ-
ing. A waiver could be implied from a clear, unequivocal, and decisive act of the
party evidencing a conscious and voluntary abandonment of the right to bargain.
ERB’s determination that the union, by participating in negotiations, agreeing
with the city on a budget, and promising not to contest the operational changes,
waived its right under PECBA to bring an unfair labor practice claim against
the city for implementing changes without engaging in collective bargaining, was
supported by substantial evidence and substantial reason.
Affirmed.
Noah T. Barish argued the cause for petitioner. Also on
the briefs were Elizabeth A. Joffe and McKanna Bishop
Joffe, LLP.
Denis Vannier argued the cause and filed the brief for
respondent.
Before Tookey, Presiding Judge, and Egan, Judge, and
Kamins, Judge.
570 Portland Fire Fighters’ Assn. v. City of Portland
TOOKEY, P. J.
Affirmed.
Cite as 321 Or App 569 (2022) 571
TOOKEY, P. J.
This case is presented to us for a second time. In
Portland Fire Fighters’ Assn. v. City of Portland, 302 Or App
395, 461 P3d 1001 (2020), we held that the Employment
Relations Board (ERB) erroneously concluded that, through
inaction, the Portland Firefighters Association, IAFF Local
43, had waived its ability to bring an unfair labor practice
claim against the City of Portland under the Public Employees
Collective Bargaining Act (PECBA). We reasoned that the
city had not asserted an affirmative defense of waiver by
inaction, and we reversed and remanded. Id. at 403.
On remand, ERB received additional briefing and
held a new hearing and determined that the city had estab-
lished its affirmative defense of waiver by action. In its peti-
tion for review, the union asserts that ERB once again erred.
We review ERB’s order for substantial evidence and errors
of law, and to determine whether its analysis comports with
substantial reason. Oregon Tech AAUP v. Oregon Institute of
Technology, 314 Or App 595, 597, 500 P3d 55 (2021), rev den,
369 Or 504 (2022); see also ORS 663.220(2) (“The findings of
the board with respect to questions of fact, if supported by
substantial evidence on the record considered as a whole, are
in like manner conclusive.”); Amalgamated Transit Union,
Div. 757 v. TriMet, 250 Or App 681, 689, 282 P3d 2 (2012)
(the court reviews ERB’s findings of fact for substantial evi-
dence). We conclude that ERB did not err and that ERB’s
order determining that, by its action, the union waived its
right to bring an unfair labor practice claim against the
city, is supported by substantial evidence and substantial
reason. We therefore affirm.
The underlying facts were recited in our original
opinion and did not change on remand. We summarize them
only briefly here as necessary for context. Mid-term for
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, as noted below.
572 Portland Fire Fighters’ Assn. v. City of Portland
The union and the fire chief sought to avoid the
layoffs. In May 2013, the union, through its president Alan
Ferschweiler, engaged in budget negotiations with Fire
Chief Janssens and Noah Siegel, the mayor’s policy adviser.
As we recited in our first opinion, although the parties pre-
sented conflicting testimony in the contested case hearing
as to whether they ultimately reached an agreement as a
result of the meetings,
“ERB found that, in the third meeting, the mayor’s liaison
and Ferschweiler reached an oral agreement as to how the
cuts would be implemented and that Ferschweiler agreed
not to contest the changes through grievance.”
Portland Fire Fighters’ Assn., 302 Or App at 398.1 The oral
agreement that ERB found the union and the city had reached
provided that, in exchange for the city’s agreement to preserve
26 firefighter positions, to apply for a “SAFER” grant to pay for
those positions, and to provide bridge funding until the grant
money became available, the city would eliminate certain pro-
motional positions and implement innovations through new
equipment, and the union would not grieve cost-saving oper-
ational changes that would ordinarily have been subject to
mandatory bargaining.2 The city adopted the budget, applied
for the SAFER grant, and implemented the changes.
The union subsequently brought a grievance, which
it ultimately dismissed, and then an unfair labor practice
claim, asserting that the city had failed to bargain over
mandatory subjects of bargaining and had made unilateral
changes to operations in violation of ORS 243.672(1)(e).3 The
city responded, among other arguments, that Ferschweiler,
1
On remand, ERB adhered to that finding, which, as we discuss below, the
union now challenges, contending that substantial evidence does not support it.
2
The operational changes are described in ERB’s order:
“(1) eliminating the Dive Team; (2) transferring Safety Chief and
Chief Investigator assignments to management; (3) replacing some trucks
and engines with quints; (4) permanently implementing an RRV program;
(5) eliminating three Fire Investigator positions; and (6) eliminating standby
pay in the Investigations unit.”
3
The union alleged that the city had committed an unfair labor practice
by “refus[ing] to bargain collectively in good faith” with the Union over the
budget-related changes. See ORS 243.672(1)(e) (providing that it is an unfair
labor practice for an employer to “[r]efuse to bargain collectively in good faith
with the exclusive representative”).
Cite as 321 Or App 569 (2022) 573
on behalf of the union, had waived the union’s ability to
object to unilateral changes by negotiating and agreeing to
the budget and operational changes and orally promising
not to grieve those changes.4
In its first order, ERB determined that, by the
union’s inaction in failing to demand to bargain over the
operational changes within a reasonable time, it had waived
its right to bargain over the operational changes and to
bring the unfair labor practice claim. We reversed ERB’s
ruling on that issue, explaining that the city had not raised
a theory of waiver based on inaction and thus could not
prevail on that theory, on which it had the burden of proof.
Id. at 403 (“[I]n light of the fact that the city never asserted
the affirmative defense of waiver by inaction, it cannot be
said to have established it.”).
On remand and in its order now on review, ERB
determined that it would adhere to its findings of fact stated
in its first order, which ERB said the union had not chal-
lenged on remand, despite the opportunity to do so. Based
on those findings, which included the finding that the union
and the city had reached an oral agreement, ERB again
agreed with the city’s affirmative defense of waiver, but
this time based on the theory that the union had waived its
rights through its actions—by participating in negotiations,
agreeing with the city on a budget, and promising not to
contest the operational changes:
“Here, as set forth in the findings of fact that we adhere
to on remand (and which the Union has not disputed on
remand), before deciding on and implementing the dis-
puted operational changes, the City met multiple times
with the Union over these changes, and the Union ulti-
mately agreed not to contest the changes that were part
4
The city’s affirmative defense alleged:
“Alan Ferschweiler, in his capacity as president of the [union], met with
Fire Chief Janssens and Noah Siegel, the Mayor’s policy adviser, at a budget
forum meeting. During the meeting Mr. Ferschweiler agreed to the opera-
tional changes[.] The City materially changed its position and pursued a * * *
grant in reliance on the [union] president’s agreement. By agreeing to those
operational changes, [the union] should be prevented from now claiming
that the City unilaterally changed working conditions without bargaining.
Alternatively, by agreeing to those operational changes, [the union] waived
any right that it had to bargain over the impact of those changes.”
574 Portland Fire Fighters’ Assn. v. City of Portland
of a bundled package of budgetary measures that included
the assumed SAFER grant funding to save 26 jobs for the
Union’s members. Under these circumstances, we con-
clude that the Union’s action of agreeing not to contest the
changes bars a (1)(e) charge on the same changes.”5
On judicial review, the union raises two assign-
ments of error, and contends that the board erred in deter-
mining that the union had waived the right to bring an
unfair labor practice claim challenging the changes. The
union contends in its first assignment of error that ERB
erred by adhering in its order on remand to the finding in its
first order that the union had orally agreed not to oppose the
budget-related changes in exchange for the city’s agreement
to apply for the SAFER grant and to provide bridge funding
before the grant was obtained in order to preserve 26 fire-
fighter positions.6 The union contends that ERB’s finding of
an agreement is not supported by substantial evidence. The
city responds that the union’s contention is not preserved,
because, on remand from this court’s first opinion, which did
not address ERB’s findings, the union did not dispute ERB’s
former findings, although it had the opportunity to do so.
We have reviewed the transcript of the proceedings
before ERB on remand. It shows that the union did indeed
mention the sufficiency of the evidence to support ERB’s
findings, but not in its briefing and not until its rebuttal at
oral argument. That apparently was not sufficient for the
board to have considered the issue to have been raised.7
5
One board member dissented, making the points that the union now raises
in its petition and that we reject.
6
ERB found that the union, through Ferschweiler, and the city had agreed
that (1) two double companies would be consolidated into single companies with
each station’s truck and engine being replaced with a quint; (2) two additional
RRVs would be added (for a total of four); (3) the Union would not oppose or
contest these changes; (4) the bargaining unit members would retain their
COLA; (5) all stations would be kept open; and (6) the city would apply for the
SAFER grant, with the understanding that receiving the grant would prevent
26 bargaining-unit members from being laid off.
7
Nor would it have been sufficient in this court. See State v. Jones, 184 Or
App 57, 60 n 2, 55 P3d 495 (2002) (“At oral argument, defendant contended for
the first time on appeal that the charged offenses were not of the same or similar
character. Because defendant did not raise that issue in his opening brief, we
decline to reach it here.”); see also State v. Murga, 291 Or App 462, 422 P3d 417
(2018) (An issue raised for the first time in an appellant’s reply brief generally
will not be considered on appeal.).
Cite as 321 Or App 569 (2022) 575
Thus, ERB expressly did not consider that the issue had
been presented to it and did not address it.
But even assuming that the issue was adequately
preserved, we would reject the union’s argument that ERB’s
finding is not supported by substantial evidence. Although
there is evidence that would support a finding that the par-
ties did not reach an agreement relating to the operational
changes that would be subject to mandatory bargaining,
there is also evidence that the parties did reach an oral
agreement to implement the operational changes necessi-
tated by the negotiated budget and that Ferschweiler agreed
that the union would not contest the operational changes.
We conclude that ERB’s finding that an oral agreement was
reached is supported by substantial evidence.
The union contends that, even assuming that ERB
correctly found that the union and the city had reached
an agreement, under the collective bargaining agreement,
any agreement to waive statutory or contractual rights was
required to be in writing and therefore is not enforceable.
The union cites the discussion in our first opinion address-
ing the city’s contention that the budget negotiations consti-
tuted collective bargaining that resulted in an enforceable
agreement. We concluded for several reasons that the bud-
get negotiations did not satisfy the statutory requirements
for collective bargaining and therefore could not result in
an enforceable agreement. Portland Fire Fighters’ Assn., 302
Or App 401-03. We noted additionally that the collective
bargaining agreement required that “any side agreements
to the collective-bargaining agreement were not binding
unless reduced to writing.” Id. at 402.
Citing that quoted statement, the union contends
that the holding of our first opinion was that any agreement
on behalf of the union must be in writing and that that hold-
ing is the law of the case. Thus, the union contends, the pur-
ported agreement by Ferschweiler not to grieve operational
changes could not constitute a waiver of the right to bring
an unfair labor practice claim, because the agreement was
not in writing, as the union contends we held to be required
by the collective bargaining agreement.
576 Portland Fire Fighters’ Assn. v. City of Portland
We are not persuaded. Our discussion in our first
opinion was directed only to ERB’s holding that the parties’
oral agreement had satisfied the statutory requirements for
collective bargaining. Our discussion did not bear on the
issue presented here—whether a waiver of rights under a
statute or collective bargaining agreement can result from
an oral agreement. Our opinion did not hold that a waiver of
rights by agreement must be in writing.
Further, we reject the union’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 union 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 Union and the Director of
the Bureau of Human Resources.”
(Emphasis added.) The union contends that the agreement
reached between the city and Ferschweiler was a “side
bar agreement” that the collective bargaining agreement
required 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 bar-
gaining agreement. Although the contract terms could not
be altered or amended except in writing, our case law sep-
arately provides that those terms can be waived, by “clear
and unmistakable language in a contract, bargaining his-
tory, or the party’s action or inaction.” Id. (citing Assn. of
Oregon Corrections Emp. v. State of Oregon, 353 Or 170, 177,
295 P3d 38 (2013)). The waiver that ERB on remand 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 affirma-
tive defense that the law provides to a claim of a unilateral
contract change. Portland Fire Fighters’ Assn., 302 Or App
at 402. The collective bargaining agreement did not require
that a waiver be in writing.
Cite as 321 Or App 569 (2022) 577
In its second assignment of error, the union con-
tends that ERB erred in holding that the city had estab-
lished its affirmative defense of waiver. As we held in our
first opinion, “[i]n the labor context, case law establishes that
a party may waive its right to bargain through clear and
unmistakable language in a contract, bargaining history,
or the party’s action or inaction.” Id. (citing Assn. of Oregon
Corrections Emp., 353 Or at 177). The waiver of a statutory
right requires an “intentional relinquishment or abandon-
ment of a known right or privilege,” which is demonstrated
by “a clear, unequivocal, and decisive act of the party show-
ing such a purpose[.]” Portland Fire Fighters’ Assn., 302 Or
App at 402; Waterway Terminals v. P. S. Lord, 242 Or 1, 26,
406 P2d 556 (1965) (“To make out a case of waiver of a legal
right there must be a clear, unequivocal, and decisive act
of the party showing such a purpose[.]”). “Waiver must be
plainly and unequivocally manifested, either ‘in terms or by
such conduct as clearly indicates an intention to renounce
a known privilege or power.’ ” Wright Schuchart Harbor v.
Johnson, 133 Or App 680, 685-86, 893 P2d 560 (1995) (quot-
ing Great American Ins. v. General Ins., 257 Or 62, 72, 475
P2d 415 (1970)). Here, there was no explicit “waiver,” per se;
thus, any waiver must be implied from conduct. If a waiver
is to be implied from conduct or circumstances, it is a ques-
tion of fact for the trier of fact to determine whether there
has been a “clear, unequivocal, and decisive act of the party,”
Waterway Terminals, 242 Or at 26, evidencing a “conscious
and voluntary abandonment of some right or privilege,”
Deschutes County v. Pink Pit, LLC, 306 Or App 563, 576, 475
P3d 910 (2020) (citing Great American Ins., 257 Or at 72).
ERB determined that, through its actions, the
union waived its right to contest the operational changes to
which Ferschweiler had agreed. ERB found that the union’s
intention to waive its right to dispute operational changes
was “clear and unmistakable.” On judicial review, we review
ERB’s order for substantial evidence and substantial reason,
and its legal conclusion as to whether the findings resulted
in a waiver for legal error. See Oregon Tech AAUP, 314 Or
App at 597. Substantial evidence exists to support a finding
of fact when the record, viewed as a whole, would permit a
reasonable person to make that finding. Clackamas County
578 Portland Fire Fighters’ Assn. v. City of Portland
Employees’ Assn. v. Clackamas County, 308 Or App 146,
149, 480 P3d 993 (2020). Substantial reason requires us to
review the reasoning that led ERB from those facts to its
conclusions and evaluate whether that reasoning reflects a
correct interpretation of the law. Id.
We have reviewed the record and conclude that sub-
stantial evidence supports ERB’s determination that the
union waived its right to challenge the operational changes.
ERB found:
“[T]he unusual facts of this case—the time-constrained
discussions, multiple meetings, participation by high-level
representatives of both sides, and ultimate concession
by the City to the Union’s primary objective to retain 26
firefighter jobs—persuasively demonstrate a clear and
unmistakable waiver by the Union not to contest the now-
contested changes.”
We note ERB’s application of the “clear and unmistakable”
standard. ERB applied that standard in response to the
union’s contention that it was applicable when the source
of the alleged waiver was an agreement. We agree with the
union that the “clear and unmistakable” standard would
apply in the context of construing the language of a con-
tractual waiver. See Assn. of Oregon Corrections Emp., 353
Or at 180; Portland Fire Fighters’ Assn., 302 Or App at 402
(“In the labor context, case law establishes that a party may
waive its right to bargain through clear and unmistakable
language in a contract, bargaining history, or the party’s
action or inaction.”). But when, as here, the asserted waiver
is not based on a contractual provision but is to be implied
from conduct or circumstances, we apply the standard enun-
ciated in Waterway Terminals, 242 Or at 26, that is, whether
there has been a “clear, unequivocal, and decisive act of the
party,” evidencing a “conscious and voluntary abandonment
of some right or privilege.” Pink Pit, LLC, 306 Or App at 576
(citing Great American Ins., 257 Or at 72). We have never
before addressed the significance of the distinction between
the “clear and unmistakable” and “clear, unequivocal, and
decisive” standards. However, we conclude that they are suf-
ficiently similar that any error in ERB’s description of the
union’s waiver as “clear and unmistakable” rather than the
“clear, unequivocal, and decisive” was harmless.
Cite as 321 Or App 569 (2022) 579
We further conclude that ERB articulated a rational
connection between the facts and the legal conclusion it
drew from them and that its reasoning reflects a correct
interpretation of the law. Clackamas County Employees’
Assn., 308 Or App at 152 (noting our “substantial reason
review requires us to determine whether ERB has articu-
lated a rational connection between the facts and the legal
conclusions it draws from them” (internal quotation marks
and brackets omitted)).
Finally, we reject the union’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
union’s waiver encompassed all objections to the unilateral
operational changes, and that the union’s agreement not to
contest the agreed-upon changes was central to the parties’
settlement of the budget dispute. ERB stated,
“Under that accord, the mayor did not insist on adhering to
earlier reluctance to seek outside, short-term grant funding
to save union-represented jobs, and in exchange, the Union
committed that it would not contest department-level oper-
ational changes sought by the mayor. Indeed, the commit-
ment to not contest those changes was an essential element
of the parties’ accord.”8
We conclude that ERB’s finding that the agreement not
to contest operational changes encompassed all objections
8
ERB found:
“[W]e reiterate that the persuasive facts establish that, for the City to reach
a deal on the Union’s terms that would save the 26 union-represented posi-
tions (which required both adoption of a budget necessary for that deal and
the agreed operational changes funded by that budget), it was essential for
the City to have the Union’s agreement that it would not oppose or contest
those changes. We find nothing in the facts (and nothing persuasive) that
establishes, as the Union argues, that the Union agreed not to file a griev-
ance over the operational changes, but retained the right to file a (1)(e) charge
regarding those same changes. To the contrary, the facts establish that it
was a central concern for the City to have the Union’s buy-in on the opera-
tional changes proposed by the Chief (and ultimately adopted by the City),
such that the City would not have to defend or further modify those changes
in any forum (either by grievance or in an unfair labor practice proceeding).
The record includes sufficient evidence to demonstrate that the Union made
a commitment not to contest the budget changes, which included the oper-
ational changes, in order to secure the City’s commitment to apply for the
SAFER grant and save 26 jobs.”
580 Portland Fire Fighters’ Assn. v. City of Portland
to the operational changes is supported by substantial
evidence.
Affirmed.