Recent Case Developments in Oregon Public Employment Law By Jeffrey P. Chicoine, partner Miller Nash LLP
TABLE OF CONTENTS Page Representation/unit clarification ............................................................................. - 1 - Deferral to grievance arbitration ............................................................................. - 3 - Interference and discrimination .............................................................................. - 4 - Good-faith bargaining obligation ............................................................................ - 6 - Unilateral changes ................................................................................................... - 9 - Obtaining information/duty to provide information ............................................ - 11 - Breach of contract .................................................................................................. - 11 - Arbitrations ............................................................................................................. - 12 - Timeliness ............................................................................................................... - 14 - Dues deductions .................................................................................................... - 14 - Benefit cases .......................................................................................................... - 15 - Oregon Interest Arbitration Awards (2009-2011) ................................................. - 17 - -i-
Recent Case Developments in Oregon Public Employment Law By Jeffrey P. Chicoine, partner Miller Nash LLP (January 2010 to July 15, 2011) Representation/unit clarification 1. SEIU Local 503, OPEU v. State of Oregon, Dep't of Transp , No. UC-026-09, 24 PECBR __ (May 12, 2011). ERB dismissed an SEIU unit clarification petition filed under OAR 115-025-0005(3). Under such petitions, ERB "will look only to the express language of the certification description or of the collective bargaining agreement in deciding whether the disputed positions are included or excluded." ERB stressed its long-established rule that under such petitions it merely interprets the unit description to determine what is already "in or out" and does not add positions. In this case, SEIU sought to include positions added to the department from another agency in 1996 under SB 1149. SEIU focused on the catchall phrase that the unit consisted of "all classified employees" of the department, while the department focused on the exclusion of "all others excluded by law." This prompted ERB to examine the 1996 bill, which specified that the transferred positions would not initially be made part of a bargaining unit and would be subsequently added only "if petitioned for in accordance with" the PECBA. ERB interpreted this to mean that the employees in those positions would have to petition for inclusion in a unit. 2. Marion Cnty. Dist. Att'y Investigator Ass'n v. Marion Cnty ., No. RC-18-09, 24 PECBR 181 (Feb. 1, 2011). District Attorney's investigators, who were part of the County's collector unit represented by SEIU Local 503, formed an independent labor organization and filed a unit clarification (UC) petition under OAR 115-025-0005(3) and, in the alternative, a representation case (RC) petition in an effort to break free from the SEIU representation. This case contains four noteworthy rulings: • Before the hearing, ERB through its election coordinator dismissed the UC petition, saying that the new District Attorney's Investigators Association lacked standing to file a UC petition under OAR 115-025-0005(3) because it was neither the recognized bargaining representative nor the public employer. • Following a hearing, ERB determined that the RC petition was untimely because it had been filed while the County-SEIU contract was in effect and not during the open filing period before contract expiration. PDXDOCS:1936791.2 - 1 -
• The investigators argued that they were strike-prohibited as police officers under the PECBA and that the SEIU, per the contractual recognition clause, excluded strike-prohibited employees. ERB refused to reinterpret the recognition clause in the County-SEIU contract to exclude the investigators from the SEIU unit, noting that such an interpretation was "contrary to" the agreement, bargaining history, and "past and present relationship," citing NLRB case authority and PECBA policies of promoting peaceful dispute resolution and stable labor relations. • ERB held, in the alternative, that the investigators were not police officers under the PECBA because their "focal duties are not to enforce all state criminal laws and maintain the public order," citing prior case law excluding state liquor control officers and parole and probation officers from the PECBA definition of police officers. 3. Admin.-Prof'l Ass'n of Lane Cnty. v. Lane Cnty. & AFSCME Local 2831 , No. UC-12-09, 24 PECBR 76 (Jan. 12, 2011). Order issued without objections denying petition by "raiding" union to move information services personnel from general unit to "specialized" public works unit. Significant points: • 91-page order. • Association failed to establish support from any statutory factors except desire of employees. ERB applied standard test for transfer from general into specialized unit, which was not met here: (a) targeted positions are only within part of employer's operation represented by specialized unit, and (b) targeted positions have "significant functional relationship" with those within specialized unit. 4. IBEW Local 659 v. City of Canyonville , No. UC-15-10, 23 PECBR 962 (Oct. 19, 2010). In petition to clarify, ERB ruled: • Bookkeeper belonged in the bargaining unit and was not excluded as confidential, but deputy city recorder is excluded as confidential. ERB emphasized that with unit's small size, employer cannot justify having two excluded confidential employees. • Temporary employees were not included within unit description. In a unit clarification petition under OAR 115-025-0005(3), ERB will only consider the scope of unit described in the certification or the recognition clause. PDXDOCS:1936791.2 - 2 -
5. Laborers' Int'l Union v. City of Aurora , No. CC-06-10, 24 PECBR 38 (Dec. 7, 2010), on reconsideration , 24 PECBR 221 (Mar. 11, 2011). ERB ruled that police officer who directed reserves, helped train the police clerk and develop and present the budget, applied for grants, worked with the court and dispatch center, and implemented various programs was not a statutory supervisor and had insufficient "administrative affinity" with supervisors to be excluded from unit (because of insufficient "community of interest" with others in unit). ERB granted reconsideration after the employer laid off one of the two police officers in the unit. ERB declined to revoke the certification although the unit was down to one member because the union neither had disclaimed interest nor was "defunct," meaning that it was unable or unwilling to function. ERB did rule that there was no obligation to bargain with a one-person unit, noting that the term "collective" connotes bargaining with more than a single individual. 6. Beaverton Police Ass'n v. City of Beaverton & SEIU Local 503 , No. UC-13-09, 23 PECBR 803 (June 17, 2010). Police union petitioned to add police department support personnel and photo radar coordinator into unit. ERB held that the police department support personnel had a community of interest with support personnel in other city departments and should remain in the general unit. ERB, however, transferred the photo radar coordinator into the police unit: "We include strike-permitted positions in a strike-prohibited bargaining unit only if the positions have duties, like those of the Police Photo Radar Coordinator, that are unique or distinctive and are closely tied and integral to the law enforcement agency's mission." 7. IBEW Local 659 v. Eugene Water & Elec. Bd ., No. CC-05-09, 23 PECBR 739 (May 26, 2010). IBEW filed a representation petition for certification by card check of a new unit of nine engineering technicians. ERB will not certify new unit of nine engineering technicians that occupies part, but not all, of a single section within a single division. Many employees outside the proposed unit had similar duties and working conditions. The only unit at EWEB had about 150 to 170 production and maintenance employees out of EWEB's 500 employees, which included some employees within the same division as the engineering technicians. ERB concluded that the proposed unit lacked a distinct community of interest and would "create needless unit fragmentation." PDXDOCS:1936791.2 - 3 -
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