Local 2787, AFSCME v. City of Montpelier ( 1993 )

The Vermont Labor Relations Board found that the City of Montpelier committed an unfair labor practice when it unilaterally changed the payment of police officers from weekly to biweekly, over the objection of the union that represents the officers. The change was made on April 4,1991, during the effective term of the 1989-91 labor contract. The Board declined, however, to find an unfair labor practice for the ensuing contract years because the union refused to participate in bargaining over the payment period issue, despite repeated requests from the city to do so. It dismissed the union’s petition because no appropriate affirmative remedy could be made for the limited violation it found. The union appeals the Board’s conclusion that no violation occurred after June 30,1991, the expiration date of the contract between the union and the city, and the Board’s failure to award a remedy. The city appeals the decision that it committed an unfair labor practice for the contract ending June 30,1991.

The conversion from weekly to biweekly payment of wages was first announced to employees in January of 1990, but as a result of complaints by employees and the unions representing public works and fire department employees, implementation was delayed until February of 1991 and modifications were made in the plan. Although not formally notified, the police union was aware of the change and never indicated any objection to it. Bargaining for a contract to commence on July 1,1991 began in 1990, and the parties agreed to a ground rule prohibiting new proposals after December 20,1990. When the city attempted to implement the new payment policy in February 1991, the police union put forth its initial objection, claiming the change was not allowed by the existing labor contract. Despite numerous requests by the city, the union refused to bargain over the policy, claiming that it represented a new proposal that could no longer be raised because of the ground rule cutoff date. The city’s decision to unilaterally implement the new payment policy led to this unfair labor practice charge.

The Board agreed that the city could not unilaterally implement the new payment policy because it was a mandatory subject of bargaining. It concluded, however, that the city had not waived its right to have the matter bargained by adoption of the ground rule, as the union had long been aware of the new policy and had failed to object in a timely fashion.

In general, we defer to the Board in determinations within its expertise. See Vermont State Employees’ Ass’n v. State, 151 Vt. 492, 493, 562 A.2d 1054, 1055 (1989). The Board’s conclusions must be upheld if supported by its findings. See In re AFSCME, Local 490, 153 Vt. 318, 321, 571 A.2d 63, 65 (1989).

The central point of the union’s appeal is that the Board erred in not enforcing the city’s waiver of its right to bargain the payment policy when it failed to raise it prior to December 20, 1990 as required by the ground rule. Although a party can contractually waive its statutory right to have an issue bargained, we will not lightly find a waiver. Contractual waivers are given “such effect as the negotiating history and other surrounding circumstances seem to make appropriate.” Radioear Corp., 214 N.L.R.B. 362, 364 (1974); see also Aeronca, Inc., 253 N.L.R.B. 261, 264 (1980) (contractual waiver of right to have issue bargained effective only on “showing of a clear relinquishment of the right which is to be decided on the facts and circumstances surrounding the making of the contract as well as the language of the contract itself”), enforcement denied on other grounds, 650 F.2d 501 (4th Cir. 1981). The expectations caused by the actions of the opposing party are relevant to whether there has been a contractual waiver. See AMCAR Div., ACF Indus., Inc. v. NLRB, 592 F.2d 422, 429 (8th Cir. 1979); Southern Materials Co., 198 N.L.R.B. 257, 258 (1972).

In light of all the surrounding circumstances, the union’s silence for almost a year created a justifiable expectation in the city that it could implement the new payment policy without bargaining and without challenge, and thus its failure to raise the issue in bargaining prior to December 20, 1990 was excusable. In exercising its discretion to conclude that it was inappropriate to enforce a waiver against the city under the circumstances, the Board acted consistent with earlier decisions. See Local 98, Int’l Union of Operating Eng’rs v. Town of Rockingham, 7 V.L.R.B. 363, 375 (1984) (waiver of bargaining rights must be conscious and explicit). The union’s refusal to bargain the payment issue was unjustified and prevented a finding that the city committed an unfair labor practice with respect to the 1991 contract.^*

We will not address the city’s cross-appeal of the ruling that it committed an unfair labor practice by unilaterally implementing the payment policy prior to July 1,1991. The contract then in force has long expired, and the Board ordered no remedy for the violation. The issue is moot.

Affirmed.

* The dissent casts the issue as one of union, not city, waiver. It is understood that the union refused to bargain the pay period issue for the 1991-93 contract, and this refusal represents the only union “waiver” found by the Board. Neither this Court nor the Board found that the union waived rights by silence, nor do we believe that the question of a union waiver, apart from its refusal to bargain, is relevant to the decision in this case.