The Good, the Bad, and the Ugly: 8th Annual Review of Recent Oregon - PDF document

The Good, the Bad, and the Ugly: 8th Annual Review of Recent Oregon Public-Sector Labor Cases Oregon Public Employer Labor Relations Association May 24, 2018 Presented by Jeffrey P. Chicoine www.millernash.com jeffrey.chicoine@millernash.com

TABLE OF CONTENTS I. KEY COURT CASES .......................................................................................................................1 II. PECBA CASES FROM OREGON COURTS AND THE EMPLOYMENT RELATIONS BOARD......................................................................................................................3 A. REPRESENTATION/UNIT CLARIFICATION.........................................................3 B. BARGAINING PRACTICES............................................................................................7 C. UNILATERAL CHANGE.................................................................................................9 D. REFUSAL TO PRODUCE INFORMATION............................................................ 10 E. INTERFERENCE............................................................................................................. 11 F. REFUSAL TO ARBITRATE.......................................................................................... 12 G. DUTY OF FAIR REPRESENTATION CASE .......................................................... 12 H. DECLARATORY RULING ........................................................................................... 13 III. INTEREST ARBITRATIONS..................................................................................................... 13

I. KEY COURT CASES 1. Janus v. AFSCME , U.S. Supreme Court Case No. 16-1466, argument held February 26, 2018, decision pending This case is currently pending before the U.S. Supreme Court on the question whether fair-share fees are constitutional.  Decision and implementation: Employers will need to implement and stop deducting fair-share fees immediately if the Supreme Court rules, as expected, that fair-share fees are unlawful. Are your records on who is a union member and who is a fair-share member complete? Consider making an information request to your unions for lists of union members (and associated membership enrollment paperwork).  Bargaining obligation: Under PECBA, ORS 243.702, there is an obligation to renegotiate invalidated provisions of collective bargaining agreements: " (1) In the event any words or sections of a collective bargaining agreement are declared to be invalid by any court of competent jurisdiction, by ruling by the Employment Relations Board, by statute or constitutional amendment or by inability of the employer or the employees to perform to the terms of the agreement, then upon request by either party the invalid words or sections of the collective bargaining agreement shall be reopened for negotiation. "(2) Renegotiation of a collective bargaining agreement pursuant to this section is subject to ORS 243.698." Many agreements contain similar provisions that should also be considered.  Alternative union security provisions: Unions are currently pushing to legitimize maintenance of membership clauses through a new rulemaking by the Employment Relations Board ("ERB"), restricting right of bargaining-unit members to opt out once they enroll in union membership and authorized dues deduction. Regardless of such a rule, unions are likely to push for similar provisions in agreements. These provisions may not be constitutional, and the rules may be contrary to ORS 292.055. 2. TriMet v. Amalgamated Transit Union , Local 757 , 362 Or 484 (2018) The focus of this case was whether TriMet's bargaining with the ATU is subject to the Oregon Public Meetings Law. 1

This matter went up on cross-motions for summary judgment on a very narrow range of facts. The facts included that the TriMet governing board delegated bargaining to a team chaired by its Executive Director of Human Resources. It was conceded, for purposes of the summary judgment motion, that the management bargaining team was a "governing body" because it was advising a governing body. The heart of the case was whether the bargaining team could escape the Public Meetings Law because it had no quorum requirement.  The court of appeals ruled that bargaining sessions were not “meetings” subject to the Public Meetings Law. The court noted that not every “convening” of a governing body requires a quorum or involve making a decision or deliberations towards a decision, noting that bargaining will take place regardless of the number of members present. A ruling that the bargaining meetings were not a "meeting," as defined in the law, was not appealed and not before the Supreme Court. (Nonetheless, the Supreme Court seemed to endorse this ruling.)  Affirming another trial court ruling, the court conclusively rejected ATU's contention that ORS 192.660(3) requires that all bargaining sessions of a public body be conducted in an "open meeting[]" unless both parties consent to private meetings. ORS 192.660(3) does not impose any such broad open-meeting obligation for all public employer bargaining. Rather, the section functions as a limited exception to the requirement that all "meetings" of a "governing body" must generally be open to the public—that is, if both parties consent, a "meeting" to negotiate may be held in executive session.  The Supreme Court, however, denied TriMet summary judgment on other grounds, holding that the management bargaining team would violate ORS 192.630(2) if it were to "meet in private." The Supreme Court held that to "meet in private" is not the same as and is broader than a “meeting.” TriMet tried to avoid this provision by arguing that the committee had no quorum requirement, but the Supreme Court held that every governing body has a quorum requirement implied by statute. How does a public employer reduce the risk of its bargaining team's being subject to the Public Meetings Law and prohibited to "meet in private?" Two ways (for now): a. The final bargaining authority is not retained by the governing board, but delegated to a single person, such as the Board Chair or the agency's chief executive. b. When the agency governing board retains the final bargaining authority, it delegates bargaining responsibility to a chief spokesperson or lead negotiator, whether an outside negotiator or the inside manager. While that lead negotiator may form a team, the team itself has no formal authority and does not function as advisory to the governing board. 2

II. PECBA CASES FROM OREGON COURTS AND THE EMPLOYMENT RELATIONS BOARD A. REPRESENTATION/UNIT CLARIFICATION 3. SEIU Local 503, OPEU v. Portland State Univ. , No. UC-002-17, 27 PECBR ___ (Mar. 9, 2018) ERB adopted a recommended order from ALJ Kehoe in a case in which no objections were filed. The Union sought to add police sergeants to a unit consisting only of police officers. The University had recently created a police department from a campus public safety office. The public safety office had used nonsworn personnel to patrol the campus. The case turned on the responsibilities that the sergeants exercised in making assignments: (a) assigning staff to serve as field training officers, which included a 5 percent premium; (b) setting officers' shifts, mandating overtime, and handling a variety of time- off requests; and (c) deciding how and when officers were deployed during a shift. Order at 13-14. The ALJ also concluded that the sergeants made effective recommendations regarding discipline emphasizing the history and practice and so considered evidence from when the unit operated as a public safety operation (before it was a police unit) and notwithstanding a recent rejection by the command staff of a recommended termination by a sergeant. Interestingly, the ALJ noted that assigning officers to "specialty, premium-pay assignments," including work as an FTO, is "deemed evidence of authority to 'assign'" and is not considered under the promotion and reward criteria. The ALJ also rejected evidence that the sergeants exercise judgment in promoting probationary to regular status. Order at 14. Practice Tip: It is the pattern of exercising supervisory authority that controls and not the one-off exception in which the command staff declined to follow a sergeant's recommended termination. 4. Or. AFSCME Council 75 v. Or. Judicial Dep't—Yamhill Cty. , No. RC-003-17, 27 PECBR ___ (Mar. 14, 2018) appeal pending Over the state's objections, ERB held that the petitioned-for unit of all nonelected employees of the Yamhill County Circuit Court constituted an appropriate bargaining unit, excluding supervisory, confidential, and managerial employees. The state argued that the petitioned-for unit would result in undue fragmentation and that an appropriate unit should consist of the entire Judicial Department of all 27 judicial districts. The state emphasized that ERB's approach could lead to 27 separate bargaining units. 3