Labor Law: When an employer asserts an affirmative defense to a charge that it changed the status quo unilaterally, the Employment Labor Relations Board (ERB) may consider the contract terms to evaluate whether the union waived the right to bargain about such changes. This means the ERB is not required to first consider the terms of the contract under the status quo rubric before determining if a waiver exists.

The Association of Oregon Corrections Employees (AOCE) sought review from the Oregon Supreme Court after the Court of Appeals court reversed, for the second time, the Employment Labor Relations Board's (ERB) conclusion that the Oregon Department of Corrections (DOC) committed an unfair labor practice. After the DOC unilaterally changed the start and stop times and workers scheduled days off, the AOCE filed a complaint with the ERB. DOC asserted an affirmative defense that the collective bargaining agreement expressly allowed their unilateral action, and alternatively that the union had waived its right to bargain with respect to this proposed change. The ERB was not convinced by DOC's defenses and concluded that there was an unfair labor practice violation. After an initial reversal by the Court or Appeals, the ERB again held that the DOC had committed an unfair labor practice. Again, the Court of Appeals reversed the ERB's decision. The AOCE appealed this second reversal to the Oregon Supreme Court. The Court held that when an employer asserts an affirmative defense to a charge that it changed the status quo unilaterally, ERB may consider the contract terms to evaluate whether the union waived the right to bargain about such changes. Therefore, ERB's analysis was not legally erroneous because there was no indication AOCE waived their right to bargain. Remanded to the Court of Appeals for further proceedings.