72nd OREGON LEGISLATIVE ASSEMBLY--2003 Regular Session
 
NOTE:  Matter within  { +  braces and plus signs + } in an
amended section is new. Matter within  { -  braces and minus
signs - } is existing law to be omitted. New sections are within
 { +  braces and plus signs + } .
 
LC 1755
 
                         Senate Bill 445
 
Sponsored by Senator MINNIS, Representative BARKER; Senators
  BROWN, DEVLIN, HANNON, B STARR, Representatives AVAKIAN,
  BERGER, FARR, MARCH
 
 
                             SUMMARY
 
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
 
  Modifies definition of supervisory employee for purposes of
public employee collective bargaining law.
 
                        A BILL FOR AN ACT
Relating to supervisory employees under public employee
  collective bargaining law; creating new provisions; and
  amending ORS 243.650.
Be It Enacted by the People of the State of Oregon:
  SECTION 1. ORS 243.650 is amended to read:
  243.650. As used in ORS 243.650 to 243.782, unless the context
requires otherwise:
  (1) 'Appropriate bargaining unit' means the unit designated by
the Employment Relations Board or voluntarily recognized by the
public employer to be appropriate for collective bargaining.
However, an appropriate bargaining unit cannot include both
academically licensed and unlicensed or nonacademically licensed
school employees. Academically licensed units may include but are
not limited to teachers, nurses, counselors, therapists,
psychologists, child development specialists and similar
positions. This limitation shall not apply to any bargaining unit
certified or recognized prior to June 6, 1995, or to any school
district with fewer than 50 employees.
  (2) 'Board' means the Employment Relations Board.
  (3) 'Certification' means official recognition by the board
that a labor organization is the exclusive representative for all
of the employees in the appropriate bargaining unit.
  (4) 'Collective bargaining' means the performance of the mutual
obligation of a public employer and the representative of its
employees to meet at reasonable times and confer in good faith
with respect to employment relations for the purpose of
negotiations concerning mandatory subjects of bargaining, to meet
and confer in good faith in accordance with law with respect to
any dispute concerning the interpretation or application of a
collective bargaining agreement, and to execute written contracts
incorporating agreements that have been reached on behalf of the
public employer and the employees in the bargaining unit covered
by such negotiations. The obligation to meet and negotiate does
not compel either party to agree to a proposal or require the
making of a concession. Nothing in this subsection shall be
construed to prohibit a public employer and a certified or
recognized representative of its employees from discussing or
executing written agreements regarding matters other than
mandatory subjects of bargaining that are not prohibited by law,
so long as there is mutual agreement of the parties to discuss
these matters, which are permissive subjects of bargaining.
  (5) 'Compulsory arbitration' means the procedure whereby
parties involved in a labor dispute are required by law to submit
their differences to a third party for a final and binding
decision.
  (6) 'Confidential employee' means one who assists and acts in a
confidential capacity to a person who formulates, determines and
effectuates management policies in the area of collective
bargaining.
  (7)(a) 'Employment relations' includes, but is not limited to,
matters concerning direct or indirect monetary benefits, hours,
vacations, sick leave, grievance procedures and other conditions
of employment.
  (b) 'Employment relations' does not include subjects determined
to be permissive, nonmandatory subjects of bargaining by the
Employment Relations Board prior to June 6, 1995.
  (c) After June 6, 1995, 'employment relations' shall not
include subjects which the Employment Relations Board determines
to have a greater impact on management's prerogative than on
employee wages, hours, or other terms and conditions of
employment.
  (d) 'Employment relations' shall not include subjects that have
an insubstantial or de minimis effect on public employee wages,
hours, and other terms and conditions of employment.
  (e) For school district bargaining, 'employment relations '
shall expressly exclude class size, the school or educational
calendar, standards of performance or criteria for evaluation of
teachers, the school curriculum, reasonable dress, grooming and
at-work personal conduct requirements respecting smoking, gum
chewing and similar matters of personal conduct, the standards
and procedures for student discipline, the time between student
classes, the selection, agendas and decisions of 21st Century
Schools Councils established under ORS 329.704, and any other
subject proposed that is permissive under paragraphs (b), (c) and
(d) of this subsection.
  (f) For all other employee bargaining except school districts,
'employment relations' expressly excludes staffing levels and
safety issues (except those staffing levels and safety issues
which have a direct and substantial effect on the on-the-job
safety of public employees), scheduling of services provided to
the public, determination of the minimum qualifications necessary
for any position, criteria for evaluation or performance
appraisal, assignment of duties, workload when the effect on
duties is insubstantial, reasonable dress, grooming, and at-work
personal conduct requirements respecting smoking, gum chewing,
and similar matters of personal conduct at work, and any other
subject proposed that is permissive under paragraphs (b), (c) and
(d) of this subsection.
  (8) 'Exclusive representative' means the labor organization
that, as a result of certification by the board or recognition by
the employer, has the right to be the collective bargaining agent
of all employees in an appropriate bargaining unit.
  (9) 'Fact-finding' means identification of the major issues in
a particular labor dispute by one or more impartial individuals
who review the positions of the parties, resolve factual
differences and make recommendations for settlement of the
dispute.
  (10) 'Fair-share agreement' means an agreement between the
public employer and the recognized or certified bargaining
representative of public employees whereby employees who are not
members of the employee organization are required to make an
in-lieu-of-dues payment to an employee organization except as
provided in ORS 243.666. Upon the filing with the board of a
petition by 30 percent or more of the employees in an appropriate
bargaining unit covered by such union security agreement
declaring they desire that such agreement be rescinded, the board
shall take a secret ballot of the employees in such unit and
certify the results thereof to the recognized or certified
bargaining representative and to the public employer. Unless a
majority of the votes cast in an election favor such union
security agreement, the board shall certify deauthorization
thereof. A petition for deauthorization of a union security
agreement must be filed not more than 90 calendar days after the
collective bargaining agreement is executed. Only one such
election shall be conducted in any appropriate bargaining unit
during the term of a collective bargaining agreement between a
public employer and the recognized or certified bargaining
representative.
  (11) 'Final offer' means the proposed contract language and
cost summary submitted to the mediator within seven days of the
declaration of impasse.
  (12) 'Labor dispute' means any controversy concerning
employment relations or concerning the association or
representation of persons in negotiating, fixing, maintaining,
changing, or seeking to arrange terms or conditions of employment
relations, regardless of whether the disputants stand in the
proximate relation of employer and employee.
  (13) 'Labor organization' means any organization that has as
one of its purposes representing employees in their employment
relations with public employers.
  (14) 'Last best offer package' means the offer exchanged by
parties not less than 14 days prior to the date scheduled for an
interest arbitration hearing.
  (15) 'Legislative body' means the Legislative Assembly, the
city council, the county commission and any other board or
commission empowered to levy taxes.
  (16) 'Managerial employee' means an employee of the State of
Oregon who possesses authority to formulate and carry out
management decisions or who represents management's interest by
taking or effectively recommending discretionary actions that
control or implement employer policy, and who has discretion in
the performance of these management responsibilities beyond the
routine discharge of duties. A 'managerial employee' need not act
in a supervisory capacity in relation to other employees.
Notwithstanding this subsection, 'managerial employee' shall not
be construed to include faculty members at a community college,
college or university.
  (17) 'Mediation' means assistance by an impartial third party
in reconciling a labor dispute between the public employer and
the exclusive representative regarding employment relations.
  (18) 'Payment-in-lieu-of-dues' means an assessment to defray
the cost for services by the exclusive representative in
negotiations and contract administration of all persons in an
appropriate bargaining unit who are not members of the
organization serving as exclusive representative of the
employees.  The payment shall be equivalent to regular union dues
and assessments, if any, or shall be an amount agreed upon by the
public employer and the exclusive representative of the
employees.
  (19) 'Public employee' means an employee of a public employer
but does not include elected officials, persons appointed to
serve on boards or commissions, incarcerated persons working
under section 41, Article I of the Oregon Constitution, or
persons who are confidential employees, supervisory employees or
managerial employees.
  (20) 'Public employer' means the State of Oregon, and the
following political subdivisions: Cities, counties, community
colleges, school districts, special districts, mass transit
districts, metropolitan service districts, public service
corporations or municipal corporations and public and
quasi-public corporations.
  (21) 'Public employer representative' includes any individual
or individuals specifically designated by the public employer to
act in its interests in all matters dealing with employee
representation, collective bargaining and related issues.
  (22) 'Strike' means a public employee's refusal in concerted
action with others to report for duty, or his or her willful
absence from his or her position, or his or her stoppage of work,
or his or her absence in whole or in part from the full, faithful
or proper performance of his or her duties of employment, for the
purpose of inducing, influencing or coercing a change in the
conditions, compensation, rights, privileges or obligations of
public employment; however, nothing shall limit or impair the
right of any public employee to lawfully express or communicate a
complaint or opinion on any matter related to the conditions of
employment.
  (23) { + (a) + } 'Supervisory employee' means any individual
having authority in the interest of the employer to hire,
transfer, suspend, lay off, recall, promote, discharge, assign,
reward or discipline other employees, or responsibly to direct
them, or to adjust their grievances, or effectively to recommend
such action, if in connection therewith, the exercise of such
authority is not of a merely routine or clerical nature but
requires the use of independent judgment. Failure to assert
supervisory status in any Employment Relations Board proceeding
or in negotiations for any collective bargaining agreement shall
not thereafter prevent assertion of supervisory status in any
subsequent board proceeding or contract negotiation.
   { +  (b) + } Notwithstanding the provisions of  { + paragraph
(a) of + } this subsection  { - , - }  { + :
  (A) + } No nurse, charge nurse or similar nursing position
  { - shall - }   { + may + } be   { - deemed - }
 { + considered + } to be supervisory unless such position has
traditionally been classified as supervisory.
   { +  (B) No public safety officer, as defined in ORS 181.610,
who merely assigns, transfers or directs the work of other
employees, but who has no authority to impose economic discipline
on those employees, may be considered to be supervisory. + }
  (24) 'Unfair labor practice' means the commission of an act
designated an unfair labor practice in ORS 243.672.
  (25) 'Voluntary arbitration' means the procedure whereby
parties involved in a labor dispute mutually agree to submit
their differences to a third party for a final and binding
decision.
  SECTION 2.  { + The amendments to ORS 243.650 by section 1 of
this 2003 Act apply only to collective bargaining agreements
executed on or after the effective date of this 2003 Act. + }
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