Oregon Public Sector Bargaining Key Cases Jeffrey P. Chicoine, - PowerPoint PPT Presentation

Oregon Public Sector Bargaining Key Cases

Jeffrey P. Chicoine, Partner Miller Nash LLP Portland, OR jeffrey.chicoine@millernash.com 503-205-2371

http:/ / www.millernash.com/ showarticle.aspx?Show=3728 www.millernash.com (publications > additional resources > employment law and labor relations) jeffrey.chicoine@millernash.com

GETTING SKEWERED ON THE “IN” PRONG ___________________________ HARD BARGAINING PAYS OFF __________________________ DIDN’T ASK, DIDN’T TELL ____________________ PASSING THE BUCK

REP / UC PETITIONS • Only employer or exclusive representative has standing to file petition to interpret existing unit description (OAR 115-25-0005(3)); raiding union lacks standing • Contract bar to rep petition by raiding union; will not reinterpret existing unit description as means to circumvent bar • DAIs are not police officers under PECBA Marion Co. Dist. Atty’s Investigators Assn. (# 1)

REP / UC PETITIONS Unit clarification petition under OAR 115- 25-0005(3) to interpret unit description: – Temporary employees not mentioned within unit description: ERB only consider scope of unit described in certification/ recognition clause. – Confidential Employee: City recorder but not bookkeeper excluded as confidential -- unit’s small size employer cannot justify having two excluded City of Canyonville (# 3)

REP / UC PETITIONS ERB standard for transfer from general into specialized unit (public works) not met: • (1) targeted positions (IT staff) are only within part of employer's operation represented by specialized unit, and • (2) targeted positions have "significant functional relationship" with those within specialized unit. Lane County (# 2 )

REP / UC PETITIONS • Supervisory status denied to senior police officer who directed reserves (but not employees) and handled various management tasks • Lack of “administrative affinity” City of Aurora (# 4)

REP / UC PETITIONS Adding to strike-prohibited unit: • Strike-permitted persons added only when roles are unique or distinct and closely related • Added photo radar coordinator, but not other support staff Beaverton Police Assn. (# 5 )

REP / UC PETITIONS Card check • Certification without an election • Can still challenge proposed unit • Requires distinct community of interest • Rule against undue fragmentation IBEW v. EWEB (# 6)

DEFERRAL TO GRIEVANCE ARBITRATION • ERB traditionally limited deferral to arbitration awards to breach of contract claims (ORS 243.672 (1)(g)) • ERB will postpone unilateral change claim (ORS 243.672 (1)(e)) while related grievance arbitration is pending Eugene Police Em p. Assn. (# 7)

DEFERRAL TO GRIEVANCE ARBITRATION • State conciliator lacks authority to stay baseless interest arbitration • ERB orders interest arbitration stayed while grievance is pending on City’s motion after filing complaint • ERB stays its own unfair labor practice proceeding City of Salem (# 8)

UNION INTERFERENCE GETTING SKEWERED ON THE “IN” PRONG

UNION INTERFERENCE ORS 243.672(1) states: It is an unfair labor practice for a public employer or its designated representative to do any of the following: (a) Interfere with, restrain or coerce employees in or because of the exercise of rights guaranteed in ORS 243.662.

UNION INTERFERENCE 243.662 Rights of public em ployees to join labor organizations. Public employees have the right to form , join and participate in the activities of labor organizations of their own choosing for the purpose of representation and collective bargaining with their public employer on matters concerning employment relations.

UNION INTERFERENCE “in” or “in the exercise of” • FOCUS: – Consequences: What is the “natural and probable effect” of the employer’s actions? Chem eketa Com m . Coll. (# 11) • TEST: – “whether, objectively viewed, the action that the employer took under the particular circumstances would chill union members generally in their exercise of protected rights?” – “Neither motive nor extent of [actual coercion] is controlling” Josephine County, Ct of Appeals (#9)

UNION INTERFERENCE “in” prong • Threat to withhold on-call time if a grievance is filed • Threat to reclassify if grievance won Um atilla County (#12) • Threats to reclassify a position downward (even if never carried out) if a grievance is filed Chem ekatan Com m . Coll. (# 11)

UNION INTERFERENCE “in” prong • Initial reorganization plan which adds lieutenants and maintains some sergeant positions. • Union demands to bargain and asks questions about sergeants positions • City submits second reorganization plan eliminating sergeant positions because of ambiguities and confusions Dallas Police (# 13)

UNION INTERFERENCE “because” • ASKS: – “Why did employer do what it did?” • PROOF: – Show “employer was motivated by the exercise of the protected right to take the disputed action.” Josephine County , Ct of Appeals

UNION INTERFERENCE “because” prong • “because of" prong violation where City disciplined the union steward for: – emailing three private attorneys with recording of grievance meeting on grounds it contained confidential information (conflicted with union PECBA-protected rights to obtain legal advice about a grievance), and – conduct deemed rude and disruptive at labor-management meeting (including calling for an HR manager's resignation) because conduct (a) not pursued on a personal basis but as part of union business and (b) "not so outrageous" as to remove it from PECBA-protection. State Departm ent of Transportation (# 10)

UNION INTERFERENCE “because” prong • Contracting out mental health services to private non-profit because union went on strike Josephine County (# 9) • Carrying out a threat to cancel on-call work if a grievance is filed Um atilla County (# 12 )

UNION INTERFERENCE No “because” violation where • Lawful reason (lack of cooperation) not unlawful reason (asserting union rights) motivated transfer Gresham -Barlow School Dist. (# 14) • Where employee asserting individual not PECBA- related rights and where supervisors did not know of her union activity Eugene Charter School Professionals (# 15)

UNION INTERFERENCE • Lessons: – Drive defensively • Consider context • Offer a rationale, not tied to protected/ union activity – Beware of statements like: • “If you file a greivance, then will just quit doing it. • We never would have done this but for your [exercise of rights]. – Revise proposals in bargaining not before ( Dallas Police )

BARGAINING DUTY HARD BARGAINING PAYS OFF

BARGAINING DUTY Employer did not engage in surface bargaining • Made no concessions during reopener • Made no proposals or counterproposals other than opening position • Engaged in reasoned discussions in multiple sessions • Costed proposals Um atilla County (# 16)

BARGAINING DUTY • Regressive proposals are not per se violations • 15-day mediation starts as of first mediation conference • Discussions in IBB permit later crafting of proposal on same issue during mediation without it being considered a new issue • E-mail bargaining and proposals by e-mail are legitimate • ERB (especially Chair) hates it when you create your own process, which then falls apart Rogue River School Dist (# 17 )

BARGAINING DUTY • Mid-term duty to bargain (mandatory subjects or mandatory effects of permissive subjects) • But when CBA specifically excludes subject not mandatory to bargain • May bargain over effects after decision (but before implementation) • Employer can implement for strike-permitted unit after 90-day bargaining obligation met Three River School District (# 18)

BARGAINING DUTY • Union failure to support TA violated • Bargaining duty • Ground rules agreement (breach of contract claim) • Union violated bargaining duty when it added new proposal to its final offer • Union did not violate bargaining duty under totality of circumstances – actually reached agreement Hood River County (# 19 )

BARGAINING DUTY • Union failure to support TA violated – Bargaining duty – Ground rules agreement (breach of contract claim) • Union violated bargaining duty when it added new proposal to its final offer • Union did not violate bargaining duty under totality of circumstances – actually reached agreement Hood River County (# 19 )

BARGAINING DUTY • Employer may assert “legal position” that it does not think bargaining is mandatory, but agree to bargain, without such assertion being evidence of bad faith bargaining Um atilla County (# 16) Washington County (# 20)

UNILATERAL CHANGE • Circuit court ordered City to change health plans • OTET not offer retiree coverage, so City made other insurance available • Under ORS 243.303(2) City “shall, insofar as and to the extent possible” offer retirees same coverage as employees • ERB held: employer need not bargain with the union over a subject that it has no control. City of Medford (# 21)