The Good, The Bad, and The Ugly: 7th Annual Review of Recent Oregon Public Sector Labor Cases Oregon Public Employer Labor Relations Association May 24, 2017 Presented by Jeffrey P. Chicoine www.millernash.com jeffrey.chicoine@millernash.com
TABLE OF CONTENTS I. EMPLOYMENT RELATIONS BOARD DECISIONS .................................................... 1 A. STANDING ........................................................................................................... 1 B. INTERFERENCE .................................................................................................. 1 C. DUTY TO FURNISH INFORMATION ............................................................... 3 D. SUBJECTS OF BARGAINING ............................................................................ 5 E. ENFORCING AGREEMENTS ............................................................................. 6 F. ADOPTION OF ALJ DECISION WHERE NO OBJECTION FILED ................ 6 II. INTEREST ARBITRATIONS .......................................................................................... 7
I. EMPLOYMENT RELATIONS BOARD DECISIONS A. STANDING 1. ILWU Local 8 v. Port of Portland , No. UP-037-14, 26 PECBR 818 (Dec. 8, 2016), on remand from 279 Or App 157, 379 P3d 1172, rev den, 360 Or 422 (2016), rev'g 26 PECBR 350, adhered to on recons 26 PECBR 395 (2015), petition for review pending On remand, ERB adhered to its prior conclusion that the case should be dismissed because there was no issue of law or fact that warranted a hearing. The Port employed no Local 8 members. The court of appeals had ruled that ERB improperly cited the law of the case doctrine when relying on its findings in a prior case between the two parties. On remand, ERB withdrew its reliance on the law of the case doctrine but adhered to its decision to dismiss the complaint. B. INTERFERENCE 2. Oregon AFSCME Council 75, Local #2043 v. City of Lebanon , 360 Or 809, 388 P3d 1028 (Feb. 2, 2017), rev'g 265 Or App 288, 336 P3d 519 (2014)¸ rev'g and remanding, No. UP-014-11, 24 PECBR 996 (2012) ERB ruled that the City of Lebanon interfered with protected rights when a City Councilor published a letter in the local newspaper expressing her personal opinion disparaging labor unions and advocating for decertification. The court of appeals reversed, concluding as a matter of law that the councilor was not a designated representative of the city. The Supreme Court reversed the court of appeals and remanded the matter to ERB for further proceedings. The Court adopted a reasonable belief test for determining whether the councilor was the city's representative: "we adopt the 'reasonable belief' standard under PECBA for determining which individuals constitute a 'public employer representative,' such that a public employer may be held responsible for the unfair labor practices committed by such individuals. Specifically, when employees of a public employer would reasonably believe that a given individual acted on behalf of the public employer in committing an unfair labor practice, that individual is a 'public employer representative' under ORS 243.650(21), and the public employer may be held liable for the conduct of that individual under ORS 243.672(1)." 360 Or at 832. In the letter, the councilor expressly stated that the opinion was hers and not that of the city or a majority of council members. She wrote: "'To employees of the City and other organizations imprisoned by the dictatorship of a union as a private citizen I advise you to seek out the Department of Labor website where you can find instructions on how to de-certify your union captors. As an individual and former union member I believe you can put your union dues to better use in your own household budget and in supporting causes that truly express your own values.'" 360 Or at 812. 1
3. Fed'n of Oregon Parole and Prob. Officers, Wasco Cty. Chapter v. Wasco Cty. , No. UP-019-15, 26 PECBR 774 (July 29, 2016) Employer violated section (1)(a) "because of" prong when failing to fill a vacant parole and probation officer ("PPO") position. The Employment Relations Board ("ERB") found no "because of" violation for changing staff to a five-day work week, no violation of the "in the exercise" prong for failing to fill the vacant position or changing the schedule, and no section (1)(b) violation for either reason. There was no dispute over the key facts of the case. The union engaged in protected activity when bargaining and filing an unfair labor practice complaint. And, the County refused to fill a vacant position and changed the PPO work schedule. The issue was whether there was a causal connection between the two. ERB noted the close proximity in time and the County's stated reasons of budgetary concerns for not filling the vacant position and its need to provide better coverage for deciding to change the schedule. The County asserted that its budgetary concerns arose, in part, because of the costs of bargaining and the possible costs of interest arbitration. ERB found this justification pretextual for several reasons, including (i) there was no interest arbitration, (ii) an inaccurate comment to the board by the Sheriff about going into costly arbitration after the contract was settled, and (iii) a comment to a union official that the vacancy would not be filled because the union was filing a complaint. ERB concluded that there was no showing of pretext over the County's stated reason for changing the schedule and so found no "because of" violation there. ERB also concluded that the natural and probable effect of changing schedules was not to chill exercise of protected activities. No section (1)(e) violation ERB also rejected a union argument that the change in schedule immediately after bargaining constituted a breach of the duty to bargain in good faith. ERB noted that it had never held that such a change constituted a per se violation and declined to do so. ERB also noted that there was no evidence that the Sheriff had decided to make that change during bargaining, but purposefully hid that decision from the union. Moreover, ERB noted that several times during bargaining the Sheriff had stated that he was considering the schedule change such that the union was aware that a schedule change was a possibility. 4. SEIU Local 503, Oregon Public Employees Union v. Lane Council of Gov'ts , No. UP-048-14, 26 PECBR 806 (Sept. 26, 2016) The union complained that the employer failed, prior to interviewing employees in preparation for an unfair labor practice, to advise each employee (1) of the purpose of the questioning, (2) that they were not required to speak to the employer's representative, and (3) that there would be no reprisal for refusing to be interviewed. ERB rejected the union's request to apply these warnings that the NLRB mandated in Johnnie's Poultry Co. , 146 NLRB 770, 775 (1964), enforcement den , 344 F2d 617 (8 th Cir 1965). ERB concluded that Johnnie's Poultry warnings are required only where an employer interrogates an employee about matters involving the exercise of protected rights. And, in this case, ERB concluded that the inquiry was simply over another employee's workplace conduct and so no 2
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