Chapter 243

NOTES OF DECISIONS

Effect of Public Employe Relations Act is to modify authority of Personnel Division so that, while division retains responsibility for establishing general job salary grades and classifications, specific salary within each range which is paid to employe in public employe bargaining unit is subject to negotiation or arbitration under terms of this chapter. AFSCME v. Executive Dept., 52 Or App 457, 628 P2d 1228 (1981), Sup Ct review denied

Provision of collective bargaining agreement giving present employes lateral transfer rights was valid under ORS 240.321 and fact that its implementation resulted in male succeeding female employe did not violate state affirmative action statutes. State Executive Dept. v. OPEU, 91 Or App 124, 754 P2d 582 (1988)

ATTY. GEN. OPINIONS: State agencies paying carpooling employes’ parking fees, (1974) Vol 36, p 1015

LAW REVIEW CITATIONS: 51 OLR 23, 44 (1971)

243.005 to 243.045

NOTES OF DECISIONS

Retirement and life insurance benefits for police officers and firemen are matters of predominantly state concern, rather than local concern. La Grande/Astoria v. Public Employes Retirement Board, 281 Or 137, 576 P2d 1204 (1978)

Const. Art. XI §2, providing that “Legislative Assembly shall not enact, amend, or repeal any charter or act of incorporation for any municipality, city or town,” did not deny legislature authority to enact statewide standards for police and fire fighters retirement and insurance benefits. La Grande/Astoria v. PERB, 284 Or 173, 586 P2d 765 (1978)

ATTY. GEN. OPINIONS: Authority of political subdivision participating in Public Employes’ Retirement System to obtain fringe benefit plans for employes, (1975) Vol 37, p 714

243.105 to 243.215

ATTY. GEN. OPINIONS: Proxy voting at board meeting, (1974) Vol 36, p 1064; authority of political subdivision participating in Public Employes’ Retirement System to obtain fringe benefit plans for employes, (1975) Vol 37, p 714

243.125

NOTES OF DECISIONS

Public Employees’ Benefit Board does not act as fiduciary with respect to state or with respect to public employees. Public Employees’ Benefit Board v. Oregon Health and Sciences University, 205 Or App 64, 132 P3d 1061 (2006), Sup Ct review denied

243.135

ATTY. GEN. OPINIONS: Self-insurance of Oregon Health Sciences Center of employes for health and dental care, (1981) Vol 41, p 448

243.145

ATTY. GEN. OPINIONS: Proxy voting at board meeting, (1974) Vol 36, p 1064

243.303

NOTES OF DECISIONS

Local governments have obligation to make health care insurance coverage available to retired employees. Doyle v. City of Medford, 347 Or 564, 227 P3d 683 (2010)

Local government is excused from obligation to make health care insurance coverage available to retired employees if local government demonstrates, through use of facts, that making coverage available is unduly burdensome. Doyle v. City of Medford, 347 Or 564, 227 P3d 683 (2010)

This section does not create property interest that is protected by Due Process Clause of 14th Amendment. Doyle v. City of Medford, 606 F3d 667 (9th Cir. 2010)

243.305

NOTES OF DECISIONS

Provision of collective bargaining agreement giving present employes lateral transfer rights was valid under this section and fact that its implementation resulted in male succeeding female employe did not violate state affirmative action statutes. State Executive Dept. v. OPEU, 91 Or App 124, 754 P2d 582 (1988)

243.400 to 243.495

NOTES OF DECISIONS

Executive Department correctly ruled that investment of deferred compensation moneys in trust that would invest in corporate stock would violate Article 11, section 6 of Oregon Constitution which prohibits state ownership of stock because these sections provide that state owns moneys until they are distributed to employe. ICMA Retirement Corp. v. Executive Department, 92 Or App 188, 757 P2d 868 (1988), Sup Ct review denied

ATTY. GEN. OPINIONS: Depositing state funds, especially deferred salaries of state employes, in state and federal-chartered credit unions, (1977) Vol 38, p 911; constitutionality of commingling moneys derived from constitutional and nonconstitutional funds or other trust funds for purposes of deferred compensation program, (1979) Vol 39, p 732; common trust fund sponsored by bank as trustee as investment vehicle for participants in Oregon deferred compensation program, (1979) Vol 40, p 1; providing individual life insurance contracts as option to state employes, (1980) Vol 40, p 250

243.470

ATTY. GEN. OPINIONS

Under former similar statute (ORS 243.230)

Insurance carrier subsidiary as agent of Bargaining Unit Benefits Board in receiving and distributing premiums to parent company and other carriers, (1982) Vol. 42, p 222

243.650 to 243.782

See also annotations under ORS 243.711 to 243.760 in permanent edition.

NOTES OF DECISIONS

Savings clause in chapter 536, Oregon Laws 1973, did not prevent application of expanded bargaining rights to collective bargaining agreement then in force. Redmond Sch. Dist. No. 2J v. Pub. Employe Relations Bd., 19 Or App 212, 527 P2d 143 (1974)

The board had authority to review, section by section, a city ordinance governing labor relations between the city and its employes and to hold invalid those provisions purporting to govern matters of predominantly state-wide concern and which were in conflict with the 1973 Act. City of Beaverton v. Intl. Assn. of Fire Fighters, 20 Or App 293, 531 P2d 730 (1975), Sup Ct review denied

Board order, defining appropriate bargaining unit and ordering representation election, was interlocutory in nature and was not “final order” subject to judicial review within meaning of ORS 183.480. City of Hermiston v. Employment Relations Board, 280 Or 291, 570 P2d 663 (1977)

Employment Relations Board’s policy of adhering to arbitration decisions in subsequent related proceedings advances legislative purpose, and is proper exercise of authority to administer this act. Siegel v. Gresham Grade Teachers Association, 32 Or App 541, 574 P2d 692 (1978)

Public Employes’ Collective Bargaining Law did not bar state agency from using state time and funds to campaign against labor organization in representation election. OSEA v. Department of Commerce, 34 Or App 727, 579 P2d 872 (1978)

Juvenile counselor appointed pursuant to [former] ORS 419.604 did not acquire collective bargaining rights granted by these sections where there was no showing that juvenile court judge had expressly authorized employer representatives to bargain on counselor’s behalf concerning terms and conditions of his employment. Schmidt v. Jackson County Juv. Dept., 49 Or App 349, 619 P2d 1307 (1980)

Employment Relations Board employed scope of review contrary to Public Employe Relations Act when it reviewed merits of arbitration award rather than only its repugnancy to Public Employe Relations Act. Willamina Ed. Assoc. v. Willamina Sch. Dist. 30J, 50 Or App 195, 623 P2d 658 (1981)

Since Public Employe Collective Bargaining Act is general law addressed primarily to substantive social, economic and other regulatory objectives of this state which do not affect freedom of local community to choose its own political form, it does not mandate structural and organizational arrangements of local governments contrary to Oregon Constitution, Article XI, section 2. City of Roseburg v. Roseburg City Firefighters, 292 Or 266, 639 P2d 90 (1981)

State’s decision to enact Public Employe Collective Bargaining Act supersedes city’s power to allow its voters to arbitrate unresolved labor disputes and grant of power by Oregon Constitution, Article IV, section 1 to legislate by popular vote does not affect state’s power in this area. City of Roseburg v. Roseburg City Firefighters, 292 Or 266, 639 P2d 90 (1981)

Arbitrator’s failure to conclude that school district violated collective bargaining agreement by violating statutory requirements incorporated into agreement was not sufficiently egregious to be reversible as being “repugnant” to act. Eugene Educ. Assoc. v. Eugene School Dist 4J, 58 Or App 140, 648 P2d 60 (1982)

Employment Relations Board formulation of test for review of arbitration awards in enforcement proceedings which would permit enforcement of arbitrator’s award unless (1) parties did not, in a written contract, agree to accept such an award as final and binding or (2) enforcement of the award would be contrary to public policy, was consistent with policies of Public Employe Collective Bargaining Act. Willamina Sch. Dist. 30J v. Willamina Ed. Assn., 60 Or App 629, 655 P2d 189 (1982)

Public Employe Collective Bargaining Act requirement that juvenile court judge bargain in good faith with representatives of juvenile counselors and refrain from establishing terms and conditions of counselors’ employment in violation of applicable contractual provisions did not constitute an undue burden or interference with his judicial functions under [former] ORS 419.604 or the separation of powers provision contained in Article III, section 1 of the Oregon Constitution. Circuit Court v. AFSCME, 61 Or App 311, 657 P2d 1237 (1983), aff’d 295 Or 542, 669 P2d 314 (1983)

Public Employe Collective Bargaining Act applies to the Judicial Department and is not inconsistent with ORS 1.002 or 1.008. Lent v. ERB, 63 Or App 400, 664 P2d 1110 (1983), Sup Ct review denied

Employment Relations Board did not exceed statutory authority under Public Employes Collective Bargaining Act in designating appropriate bargaining unit which consists of police dispatchers who are employes who can strike and police officers who are forbidden from striking. City of Canby v. Canby Police Association, 68 Or App 317, 680 P2d 1033 (1984), Sup Ct review denied

Statutory purpose to provide uniform basis for employe organizing and bargaining would be subverted by holding that statute authorizing county civil service system supersedes collective bargaining required by this Act. AFSCME v. Clackamas County, 69 Or App 488, 687 P2d 1102 (1984)

Board had authority to order restitution where union collected “fair share” payments from nonunion public employees without complying with safeguards instituted to protect employees’ rights of free speech and association. Elvin v. OPEU, 313 Or 165, 832 P2d 36 (1992)

ATTY. GEN. OPINIONS: School law on mediation as an exclusive procedure, (1971) Vol 35, p 961; seniority as a related economic issue, (1972) Vol 35, p 1134; legality of binding arbitration in public employment collective bargaining, (1972) Vol 36, p 18; validity of collective bargaining agreements between county intermediate education district and local education association on transfer of sick leave, (1975) Vol 37, p 328; authority of teachers to strike during contract year in absence of collective bargaining agreements, and to engage in picketing, (1975) Vol 37, p 732

LAW REVIEW CITATIONS: 51 OLR 7-69 (1971); 54 OLR 337-371 (1975); 56 OLR 457 (1977); 21 WLR 454 (1985); 70 OLR 969 (1991); 28 WLR 259 (1992); 32 WLR 69, 707 (1996)

243.650

See also annotations under ORS 243.711 in permanent edition.

NOTES OF DECISIONS

The selection of a fair-share ratification procedure need only be some procedure which reasonably reflects the opinion of the majority of the bargaining unit members. Oregon City Fedn. of Teachers v. Employe Relations Bd., 23 Or App 540, 543 P2d 297 (1975)

A court’s review of the Employment Relations Board’s decision as to what is a mandatory subject for collective bargaining is limited to determining whether the decision is lawful in substance and is supported by substantial evidence. Springfield Educ. Assn. v. Springfield Sch. Dist. 19, 24 Or App 751, 547 P2d 647 (1976), as modified by 25 Or App 407, 549 P2d 1141 (1976)

Substitute teachers are public employes within definition of this section. Eugene School District v. Substitute Teacher Organization, 31 Or App 1255, 572 P2d 650 (1977)

In a proceeding before the Employment Relations Board to certify a bargaining unit, an order by the board denying a motion to dismiss such a proceeding on the ground that the employer is not a “public employer” and holding that it is, to the contrary, a “public employer,” is not a “final order” so as to be appealable under the terms of ORS 183.480. Lane Council of Governments v. Lane Council of Governments Employes Association, 277 Or 631, 561 P2d 1012 (1977), on reconsideration 278 Or 335, 563 P2d 729 (1977)

Notwithstanding that it was improper for public employer to classify employe as “supervisory employe,” and thus place him on list of positions excluded from collective bargaining, without first giving notice to union as required by bargaining agreement, employe was not then entitled to disobey order not to attend union meeting, but was required to remain at job and then file grievance under procedure provided by bargaining agreement. Whitney v. Employment Division, 280 Or 35, 569 P2d 1078 (1977)

Sheriff is “public employer” within meaning of this section. Hockema v. OSEA, 34 Or App 527, 579 P2d 282 (1978), Sup Ct review denied

Where collective bargaining agreement included provision requiring fair share payments-in-lieu-of-dues, and it was intent of parties to agreement that vote approving of agreement would constitute ratification of fair share requirement, subsequent judicial decision mandating separate vote for ratification of fair share provision was not retroactive and did not require repayment of previously withheld fair share payments. Oregon City Federation of Teachers v. OCEA, 36 Or App 27, 584 P2d 303 (1978)

Collective bargaining agreement requiring payments of only those nonunion members who had been union members during term of agreement but had dropped out of union was not fair share agreement within meaning of this section. Stines v. OSEA, 287 Or 643, 601 P2d 799 (1979)

Although teachers’ summer vacation was mandatory bargaining subject, scheduling summer vacation and teachers’ “workdays” were permissive bargaining subjects. Eugene Education Assn. v. Eugene School Dist., 46 Or App 733, 613 P2d 79 (1980)

Determination of whether certain aspects of public schoolteacher evaluations were “conditions of employment” and therefore employment relations subject to mandatory collective bargaining was properly made by Employment Relations Board in exercise of interpretive rather than legislative authority as statute embodies complete expression of legislative policy not subject to refinement by ERB. Springfield Educ. Assn. v. Springfield School Dist., 290 Or 217, 621 P2d 547 (1980)

Firefighters’ safety proposal was mandatory subject for bargaining where ERB found safety is of “like character” to statutory examples of employment relations and firefighters proved that preponderant purpose of specific language of proposal was to protect employes. International Assoc. of Firefighters, Local 314 v. City of Salem, 68 Or App 793, 684 P2d 605 (1984), Sup Ct review denied

Employment Relations Board has authority to determine propriety of payment-in-lieu-of-dues amount agreed upon by public employer and exclusive representative of employees. Carlson v. AFSCME, 73 Or App 755, 700 P2d 260 (1985), Sup Ct review denied

Prohibition in ORS 260.432 against requiring public employee to support political cause does not supersede right of exclusive representative of employees to collect payment-in-lieu-of-dues to support political position affecting rights of represented employees. Carlson v. AFSCME, 73 Or App 755, 700 P2d 260 (1985), Sup Ct review denied

When “fair share” provision exempts from its operation certain state agencies, but is otherwise in all respects fair share agreement, it is invalid under this section because it does not require contribution by all nonunion members of bargaining unit. Stevens v. OPEU, 82 Or App 264, 728 P2d 97 (1986), Sup Ct review denied

Because legislature explicitly included “matters concerning...vacations” within definition of “employment relations” in this section, Employment Relations Board erred in interpreting “employment relations” to include only those vacation proposals that affect “employment conditions” to a greater extent than “management rights.” Portland Fire Fighters Assoc. v. City of Portland, 305 Or 275, 751 P2d 770 (1988)

City of Salem’s reserve police officer program involved “matters concerning direct or indirect monetary benefits” within meaning of “employment relations.” Salem Police Employees Union v. City of Salem, 308 Or 383, 781 P2d 335 (1989)

Collective bargaining agreement which required continuing payments to all employees except for those working less than 15 hours per week was “fair share” agreement. Bates v. Portland Federation of Teachers, 106 Or App 221, 807 P2d 306 (1991)

Where union collected “fair share” payments from nonunion public employees without complying with safeguards instituted to protect employees’ rights of free speech and association, restitution was appropriate remedy. Elvin v. OPEU, 313 Or 165, 832 P2d 36 (1992)

Employment Relations Board misinterpreted “employment relations” by treating workload as if workload were same as five enumerated items in this section. Tualatin Valley Bargaining v. Tigard School Dist., 314 Or 274, 840 P2d 657 (1992)

Whether “other conditions of employment” includes proposal depends on specific facts of each case. Tualatin Valley Bargaining v. Tigard School Dist., 314 Or 274, 840 P2d 657 (1992)

Determination whether subject has greater impact on management’s prerogative than on wages, hours or other terms is irrelevant for matter specifically listed as being subject of “employment relations.” Eugene Police Employees’ Association v. City of Eugene, 157 Or App 341, 972 P2d 1191 (1998), Sup Ct review denied

“Academically licensed” refers to positions requiring academic training and involving provision of direct professional service to students, whether or not requiring formal licensing. Linn-Benton-Lincoln Education Association v. Linn-Benton-Lincoln ESD, 163 Or App 558, 989 P2d 25 (1999)

Where change in minimum qualifications necessary for position has impact on direct or indirect monetary benefits, impact of change in minimum qualifications is subject to mandatory bargaining. Beaverton Police Association v. City of Beaverton, 194 Or App 531, 95 P3d 1160 (2004)

ATTY. GEN. OPINIONS: Right of a nonlawyer union business agent to represent a member before the Public Employe Relations Board, (1972) Vol 35, p 1088; American Association of University Professors as a labor organization, (1972) Vol 35, p 1105; seniority as a related economic issue, (1972) Vol 35, p 1134; Retirement benefit credit for unused sick leave, request by school district, (1973) Vol 36, p 665; uniform collective bargaining for state employes in same class of position, (1978) Vol 38, p 1694; permissible payment which may be required from nonmembers with respect to Fair Share Agreements, (1978) Vol 38, p 1855

LAW REVIEW CITATIONS: 28 WLR 259 (1992); 32 WLR 69, 707 (1996)

243.656

See also annotations under ORS 243.720 and 342.450 in permanent edition.

NOTES OF DECISIONS

There is no constitutional or statutory proscription against agreements to arbitrate disputes over the application of agreed procedures relating to teacher renewal. Central Point Sch. Dist. v. Employment Relations Bd., 27 Or App 285, 555 P2d 1269 (1976), Sup Ct review denied

Employment Relations Board had authority to order signing of new written collective bargaining agreement where executed written document did not reflect parties’ bargained agreement. Gresham Grade Teachers Assoc. v. Gresham Grade School Dist., 52 Or App 881, 630 P2d 1304 (1981)

LAW REVIEW CITATIONS: 51 OLR 181 (1971); 68 OLR 134 (1989)

243.662

See also annotations under ORS 243.730 in permanent edition.

NOTES OF DECISIONS

General rights defined in this section did not limit specific collective bargaining rights of employes delineated in ORS 243.672 and ORS 243.662, and thus fact that petitioner was probationary teacher did not preclude Employment Relations Board from finding that his nonrenewal constituted unfair labor practice. Harrison v. Central Linn School District, 34 Or App 221, 578 P2d 460 (1978), Sup Ct review denied

Employee effort to enforce own contractual right under collective bargaining agreement is protected activity. Central School District 13J v. Central Education Association, 155 Or App 92, 962 P2d 763 (1998)

ATTY. GEN. OPINIONS: Right of a nonlawyer union business agent to represent a member before the Public Employe Relations Board, (1972) Vol 35, p 1088; seniority as a related economic issue, (1972) Vol 35, p 1134; Collective bargaining rights of Oregon State Police, (1977) Vol 38, p 919

243.666

See also annotations under ORS 342.460 in permanent edition.

NOTES OF DECISIONS

For purposes of construction, language “all-union agreement or agency shop agreement” was deemed mere surplusage. OSEA v. Oregon State University, 30 Or App 757, 567 P2d 1085 (1977), Sup Ct review denied

In proceeding seeking exemption from fair share payments under this section, claimant failed to demonstrate nexus between arguably religious beliefs and antipathy toward payment of dues. Gorham v. Roseburg Education Assn., 39 Or App 231, 592 P2d 228 (1979)

ATTY. GEN. OPINIONS: Insuring dependents of school employes as a subject for board-employe consultation, (1971) Vol 35, p 979; right of a nonlawyer union business agent to represent a member before the Public Employe Relations Board, (1972) Vol 35, p 1088; seniority as a related economic issue, (1972) Vol 35, p 1134; authority of teachers to strike during contract year in absence of collective bargaining agreements, and to engage in picketing, (1975) Vol 37, p 732; exclusive effect of exclusive bargaining representation, (1976) Vol 38, p 419; validity of employer’s restrictions on teacher’s representation at evaluation conference, (1976) Vol 38, p 443

LAW REVIEW CITATIONS: 51 OLR 181 (1971); 19 WLR 75 (1983)

243.672

NOTES OF DECISIONS

Appropriate test to be applied in determining whether proposed subject is “condition of employment” and therefore mandatory subject for bargaining is to balance educational policy involved against effect that subject has on teacher’s employment. Sutherlin Educ. Assn. v. Sutherlin Sch. Dist., 25 Or App 85, 548 P2d 204 (1976)

Public employer’s refusal to negotiate proposed “union shop” agreement was not unfair labor practice, for such agreements are prohibited subject of bargaining. OSEA v. Oregon State University, 30 Or App 757, 567 P2d 1085 (1977), Sup Ct review denied

Employment Relations Board has exclusive jurisdiction to enforce arbitration agreements arising out of public-sector labor relations, notwithstanding [former] ORS 33.230. Smith v. State of Oregon, 31 Or App 15, 569 P2d 677 (1977), Sup Ct review denied

Although university’s increase in price of reduced-price-meals provided to cafeteria employes constituted mandatory subject for collective bargaining, local union’s failure to request bargaining on meal price increase until after contract was signed constituted waiver of its right to complain that employer had refused to discuss mandatory subject for collective bargaining. AFSCME v. Board of Higher Education, 31 Or App 251, 570 P2d 388 (1977)

Evidence was sufficient to support Employment Relations Board finding that nonrenewal of teacher’s contract by school district was caused by teacher’s union activity and constituted unfair labor practice. Harrison v. Central Linn School District, 34 Or App 221, 578 P2d 460 (1978), Sup Ct review denied

It was unfair labor practice for school district to refuse to comply with arbitrator’s award of reinstatement and back pay in grievance proceeding under collective bargaining agreement, which provided for “binding” arbitration of grievances and limited authority of arbitrator to “determining whether or not there has been violation of law, policy, rule, or regulation in question.” Corvallis Sch. Dist. v. Corvallis Education Assn., 35 Or App 531, 581 P2d 972 (1978)

Although minority union could, pursuant to ORS 243.782, represent individual petitioners in suit against majority union alleging wrongful withholding of fair share payments, minority union failed to plead or prove that it had suffered any direct injury from conduct complained of, and thus lacked standing as “injured party” to proceed on its own behalf. Oregon City Federation of Teachers v. OCEA, 36 Or App 27, 584 P2d 303 (1978)

In suit against majority union alleging wrongful withholding of fair share payments, teacher had standing to challenge only portions of salary withheld within 180 days preceding filing of complaint. Oregon City Federation of Teachers v. OCEA, 36 Or App 27, 584 P2d 303 (1978)

Where conduct constituting unfair labor practice, if done with requisite intent, occurred within 180 days preceding filing of complaint under this section, evidence of events occurring outside that period was admissible to demonstrate intent. Smith v. Employment Div., 38 Or App 241, 589 P2d 1184 (1979)

Where no provision of collective bargaining agreement between school district and its teachers required arbitration of dismissals of probationary teachers, failure to arbitrate was not an unfair labor practice under this section. Ostrer v. Pine-Eagle School Dist., 40 Or App 265, 594 P2d 1296 (1979)

Where collective bargaining contract had expired and city had enacted ordinance designating fire captains as supervisory, city did not restrain exercise of union activity or interfere with administration of local firefighters’ union by unilaterally removing fire captains from bargaining unit. Medford Firefighters Assn. v. City of Medford, 43 Or App 733, 605 P2d 289 (1979)

Where city did not fill vacant fire inspector position, it did not discriminate against union member by failing to promote him to position. Medford Firefighters Assn. v. City of Medford, 43 Or App 733, 605 P2d 289 (1979)

Where collective bargaining agreement contained “maintenance-of-membership” provision less restrictive than “fair share” provisions excepted under this section, employer enforcement of provision was not unfair labor practice. Stines v. OSEA, 287 Or 643, 601 P2d 799 (1979)

It was not abuse of discretion for Employment Relations Board to adopt and apply, in course of contested case, rule that it is “per se” violation of duty to bargain in good faith for employer to make unilateral change regarding mandatory bargaining subject while employer has duty to bargain. Wasco County v. AFSCME, 46 Or App 859, 613 P2d 1067 (1980)

Refusal to permit juvenile counselor appointed pursuant to [former] ORS 419.604 to pursue grievance procedure of county’s collective bargaining agreement was not unfair labor practice under this section. Schmidt v. Jackson County Juv. Dept., 49 Or App 349, 619 P2d 1307 (1980)

Plaintiff’s allegation that Oregon Public Employes Union breached its duty of fair representation constitutes unfair labor practice which is within exclusive jurisdiction of Employment Relations Board. Coleman v. Children’s Services Division, 71 Or App 687, 694 P2d 555 (1984), Sup Ct review denied

Employment Relations Board may order public employer to enter binding arbitration with mixed unit of both employes allowed to strike and employes prohibited from striking as sanction for committing unfair labor practice after Board has separated mixed unit into two bargaining units. AFSCME Local 1246 v. Fairview Training Center, 81 Or App 165, 724 P2d 895 (1986)

Employer violated this section when it refused to sign agreement containing factfinder’s precise language because both union and employer had accepted factfinder’s recommendations and were unable to agree on other language. Cascade Bargaining Council v. Jefferson Cty. Sch. Dist., 83 Or App 418, 732 P2d 54 (1987)

Collective bargaining agreement is enforceable against employer where employer has given negotiator sufficient authority, notwithstanding school board failure to ratify agreement. South Benton Ed. Assn. v. Monroe Union High, 83 Or App 425, 732 P2d 58 (1987), Sup Ct review denied

Where city council decided to contract out custodial services and communicated directly with affected employe regarding impact of that decision, city committed unfair labor practice. AFSCME Local 2975 v. City of Corvallis, 90 Or App 372, 752 P2d 860 (1988)

Employment Relations Board’s conclusion that “period of negotiations” began when city gave union notice of decision to contract out services was consistent with legislative policy and was correct. AFSCME Local 2975 v. City of Corvallis, 90 Or App 372, 752 P2d 860 (1988)

Employment Relations Board erred by applying objective “reasonable employer” test to determine whether employe’s discharge complied with “just cause” provision of collective bargaining agreement without first determining whether procedures referred to in provisions were applicable and, if so, had been satisfactorily followed. OSEA v. Rainier School Dist. 13, 91 Or App 42, 754 P2d 9 (1988)

Employer’s refusal to agree to same terms with successor union as it had previously agreed to with predecessor union in tentative agreement is not per se unlawful, however, such refusal may be evidence of bad faith bargaining, unlawful discrimination or improper assistance. AFSCME Council 75 v. Oregon Health Sciences Univ, 91 Or App 365, 755 P2d 141 (1988)

Employment Relations Board’s jurisdiction over wage claims arising from public employees’ arbitration award was primary, even if not exclusive, and issues of whether arbitration award was final and binding and whether employer refused or failed to comply with any provision of it were issues for board in first instance, so although not entirely without jurisdiction over dispute, circuit court should have abated claims until Employment Relations Board issued order for circuit court to enforce. Tracy v. Lane County, 305 Or 378, 752 P2d 300 (1988)

City of Salem’s refusal to bargain collectively in good faith concerning its adoption of reserve police officer program was an unfair labor practice under this section. Salem Police Employees Union v. City of Salem, 308 Or 383, 781 P2d 335 (1989)

Records of employees not subject to same provisions as claimant are not relevant to case and do not support claim that district refused to bargain in good faith. OSEA v. Salem-Keizer School Dist. 24J, 103 Or App 221, 797 P2d 375 (1990)

Employment Relations Board correctly interpreted provisions of collective bargaining agreement and substantial evidence supported board’s conclusions that: 1) employee’s dismissal was based on course of conduct; 2) employee was given progressive discipline; and 3) disciplinary notices sent to employee complied with provisions of collective bargaining agreement. OSEA v. Rainier School Dist. No. 13, 311 Or 188, 808 P2d 83 (1991)

Where union committed unfair labor practice by collecting “fair share” payments from nonunion public employees without complying with safeguards instituted to protect employees’ rights of free speech and association, restitution was appropriate remedy. Elvin v. OPEU, 313 Or 165, 832 P2d 36 (1992)

County did not violate this statute by refusing to turn over information about hiring process for particular position when complainant failed to show that information was relevant to any issue in grievance proceeding. Lane County Public Works Assn. v. Lane County, 118 Or App 46, 846 P2d 414 (1993)

Where annual assessment was payable in installments during year, 180-day filing period limitation was measured from assessment date for each installment payment. Blackburn v. Oregon Education Assn., 127 Or App 607, 873 P2d 485 (1994), Sup Ct review denied

Change required to comply with minimum requirements of law is not automatically exempt from duty to bargain. Washington Cty. Police Officers v. Washington Cty., 321 Or 430, 900 P2d 483 (1995)

Where ERB has issued order requiring specific act of compliance within definite time, action taken to comply with order is not subject to bargaining. Washington Cty. Police Officers v. Washington Cty., 321 Or 430, 900 P2d 483 (1995)

In cases involving alleged refusal to provide information, use of probable or potential relevance test is within discretion allowed to board. Olney School District 11 v. Olney Education Assn., 145 Or App 578, 931 P2d 804 (1997)

To establish prima facie case based on inference that employment action is “because of” protected activity, complainant must show: 1) exercise of protected activity; 2) adverse employment action; and 3) sufficient causal connection between activity and adverse action. Portland Association of Teachers v. Multnomah School District No. 1, 171 Or App 616, 16 P3d 1189 (2000)

Prima facie showing that employment action was “because of” protected activity does not shift burden of proof to employer. Portland Association of Teachers v. Multnomah School District No. 1, 171 Or App 616, 16 P3d 1189 (2000)

Public employer can be injured party for purposes of unfair labor practice claim based on secondary picketing of public official’s residence or business. Jefferson County v. Oregon Public Employees Union, 174 Or App 12, 23 P3d 401 (2001)

Employment Relations Board has authority to determine whether contractual provision of collective bargaining agreement conflicts with federal and state laws prohibiting unlawful employment discrimination. PSU Association of University Professors v. PSU, 240 Or App 108, 246 P3d 1162 (2010)

ATTY. GEN. OPINIONS: Authority of teachers to strike during contract year in absence of collective bargaining agreements, and to engage in picketing, (1975) Vol 37, p 732; harassment by employer of individuals organizing a union, (1977) Vol 38, p 919

LAW REVIEW CITATIONS: 19 WLR 75 (1983); 68 OLR 156 (1989); 28 WLR 259 (1992); 32 WLR 707 (1996)

243.676

See also annotations under ORS 243.745 in permanent edition.

NOTES OF DECISIONS

The Employment Relations Board has a duty to determine whether a labor agreement requires that certain complaints be processed as grievances. Portland Assn. of Teachers v. School Dist. 1, 27 Or App 247, 555 P2d 943 (1976)

Employment Relations Board, not Court of Appeals, has initial authority to determine what costs and fees, if any, are awarded for proceedings both before ERB and on judicial review in an unfair labor practice case. Executive Department v. FOPPO, 94 Or App 754, 767 P2d 112 (1989)

This section does not prevent Employment Relations Board from exercising remedies other than penalty or imposing sanctions to achieve purposes of Public Employees Collective Bargaining Act. Elvin v. OPEU, 102 Or App 159, 793 P2d 338 (1990), aff’d 313 Or 165, 832 P2d 36 (1992)

Employment Relations Board must investigate complaint but if it finds no issue of fact or law, it may dismiss complaint without hearing. OSEA v. Salem-Keizer School Dist. 24J, 103 Or App 221, 797 P2d 375 (1990)

Employment Relations Board is required to interpret collective bargaining agreements and should do so in same manner and pursuant to same rules of construction as courts apply in construing contracts under common law. OSEA v. Rainier School Dist. No. 13, 311 Or 188, 808 P2d 83 (1991)

Employment Relations Board has discretion to impose civil penalty. Lane County Public Works Assn. v. Lane County, 118 Or App 46, 846 P2d 414 (1993)

Plaintiff cannot avoid exclusive jurisdiction of Employment Relations Board to determine existence of unfair labor practice by alleging unfair practice as element of tort claim. Ahern v. Oregon Public Employees Union, 329 Or 428, 988 P2d 364 (1999)

ATTY. GEN. OPINIONS: Information concerning allegations of unfair labor practices of public record, (1976) Vol 38, p 467

243.682

See also annotations under ORS 342.460 in permanent edition.

NOTES OF DECISIONS

Designation by the Public Employe Relations Board of an appropriate bargaining unit is not a “final order” so as to be subject to appeal. Klamath County v. Laborers Intl. Union of No. Am., 21 Or App 281, 534 P2d 1169 (1975)

Employment Relations Board findings, that substitute teachers were paid uniform rate and showed desire for representation and community of interest, provided rational basis for conclusion that they were appropriate bargaining unit. Eugene School District v. Substitute Teacher Organization, 31 Or App 1255, 572 P2d 650 (1977)

Employment Relations Board order under this section, determining that proposed bargaining unit was inappropriate, was not unlawful in procedure or substance in its conclusion as to fragmentation of work force and was supported by evidence. OSEA v. Deschutes County, 40 Or App 371, 595 P2d 501 (1979)

Dictum in previous agency decision did not qualify as officially stated agency position or prior agency practice. Association of Engineering Employes v. Department of Transportation, 72 Or App 371, 695 P2d 961 (1985)

Employment Relations Board preference for certifying largest possible bargaining unit does not deny employees right to choose representative labor organization. University of Oregon Chapter, AFT v. University of Oregon, 92 Or App 614, 759 P2d 1112 (1988)

Under this section, Employment Relations Board must conduct hearing when question of representation exists unless parties expressly consent to election. OACE v. Eagle Point School Dist. No. 9, 99 Or App 347, 782 P2d 432 (1989)

Nothing in this statute precludes Employment Relations Board from conducting election with separate balloting by currently recognized bargaining units. Welches School Dist. v. Welches Education Assn., 116 Or App 564, 842 P2d 437 (1992), Sup Ct review denied

ATTY. GEN. OPINIONS: Insuring dependents of school employes as a subject for board-employe consultation, (1971) Vol 35, p 979

LAW REVIEW CITATIONS: 51 OLR 181 (1971)

243.686

NOTES OF DECISIONS

Post-election certification order is appealable final order. Linn-Benton-Lincoln Education Assn. v. Linn-Benton-Lincoln ESD, 152 Or App 439, 954 P2d 815 (1998)

243.696

ATTY. GEN. OPINIONS: Uniform collective bargaining agreements for employes in same class of positions, (1978) Vol 38, p 1694

243.698

NOTES OF DECISIONS

Where collective bargaining agreement clearly and unmistakably allows employer to unilaterally change condition involving employment relations, change in conditions by employer is not change in status quo triggering obligation to bargain. Association of Oregon Corrections Employees v. Department of Corrections, 209 Or App 761, 149 P3d 319 (2006)

243.702

LAW REVIEW CITATIONS: 28 WLR 259 (1992)

243.706

NOTES OF DECISIONS

Where collective bargaining contract between union and county contained mandatory grievance procedures, ERB was without authority to interpret contract without requiring that parties bring matter to arbitration. AFSCME v. Lane County Commissioners, 45 Or App 161, 607 P2d 1212 (1980), Sup Ct review denied, on reconsideration 46 Or App 645, 612 P2d 759 (1980)

Findings made by arbitrator that are beyond scope of collective bargaining agreement are not part of arbitration “award.” Deschutes County Sheriff’s Association v. Deschutes County, 169 Or App 445, 9 P3d 742 (2000), Sup Ct review denied

Proper inquiry in determining whether employer may decline to enforce arbitration award on public policy grounds is whether award itself contravenes public policy, not whether underlying conduct of employee violates public policy. Salem-Keizer Association of Classified Employees v. Salem-Keizer School District 24J, 186 Or App 19, 61 P3d 970 (2003)

243.712

See also annotations under ORS 342.470 in permanent edition.

NOTES OF DECISIONS

Where one party did not participate in collective bargaining process, this section permitted the opposite party to initiate arbitration procedures before fact finding was completed whether or not nonparticipating party concurred. La Grande Police Assoc. v. Hamilton, 56 Or App 133, 641 P2d 1132 (1982)

ATTY. GEN. OPINIONS: Liability of district for costs when mediator or factfinder is appointed by superintendent, (1971) Vol 35, p 961

LAW REVIEW CITATIONS: 28 WLR 259 (1992); 32 WLR 69, 707 (1996)

243.722

See also annotations under ORS 342.470 in permanent edition.

NOTES OF DECISIONS

ATTY. GEN. OPINIONS: Liability of district for costs when mediator or factfinder is appointed by superintendent, (1971) Vol 35, p 961

LAW REVIEW CITATIONS: 28 WLR 259 (1992)

243.726 to 243.736

LAW REVIEW CITATIONS: 56 OLR 254 (1977)

243.726

NOTES OF DECISIONS

Where collective bargaining contract between union and county contained mandatory grievance procedures, ERB, after determining that strike was not in violation of this section, lacked authority to proceed to interpret contract without requiring parties to arbitrate matter. AFSCME v. Lane County Commissioners, 45 Or App 161, 607 P2d 1212 (1980), Sup Ct review denied, on reconsideration46 Or App 645, 612 P2d 759 (1980)

When some members of certified bargaining unit were prohibited by law from striking and required by law to resort to compulsory arbitration, all members of bargaining unit were subject to compulsory arbitration so arbitrator’s award was applicable to all members of bargaining unit. AFSCME v. Executive Dept., 52 Or App 457, 628 P2d 1228 (1981), Sup Ct review denied

ATTY. GEN. OPINIONS: Authority of teachers to strike during contract year in absence of collective bargaining agreements, and to engage in picketing, (1975) Vol 37, p 732

LAW REVIEW CITATIONS: 68 OLR 149 (1989); 28 WLR 259 (1992); 32 WLR 707 (1996)

243.736

NOTES OF DECISIONS

Juvenile probation officers were not “policemen” within meaning of this section, as threat of strike by these individuals did not pose type of immediate public danger that this section contemplates. AFSCME v. Executive Dept., 52 Or App 457, 628 P2d 1228 (1981), Sup Ct review denied

Prison employes not hired to maintain prison security were not “guards at correctional institutions” within meaning of this section, since legislature only intended to include within absolute prohibition against striking those employes whose job duties are such that it is apparent without case-by-case determination that strike could create public danger or threat. AFSCME v. Executive Dept., 52 Or App 457, 628 P2d 1228 (1981), Sup Ct review denied

Liquor enforcement officers are not “police officers” within meaning of this section. AFSCME Local 2505 v. OLCC, 91 Or App 385, 755 P2d 148 (1988)

Parole and probation officers do not qualify as police officers for purposes of compelling binding interest arbitration. Clackamas County v. Federation of Oregon Parole and Probation Officers, 124 Or App 395, 862 P2d 114 (1993)

“Mental hospital” includes any facility providing residential services to mentally ill and developmentally disabled individuals who present danger or threat to public. Dept. of Human Resources v. AFSCME Council 75, 125 Or App 625, 866 P2d 498 (1994), Sup Ct review denied

“Guards” includes employees whose focal job duties include monitoring behavior and location of facility residents and keeping residents under control, notwithstanding that predominant job duty of employees may be therapeutic. Dept. of Human Resources v. AFSCME Council 75, 125 Or App 625, 866 P2d 498 (1994), Sup Ct review denied

ATTY. GEN. OPINIONS: Validity of separate bargaining units for striking and nonstriking public employes, (1974) Vol 37, p 245

243.742

NOTES OF DECISIONS

Where one party did not participate in collective bargaining process, request by other party to initiate arbitration was the event which constituted “initiation of arbitration procedures.” La Grande Police Assoc. v. Hamilton, 56 Or App 133, 641 P2d 1132 (1982)

Although parties entered into collective bargaining agreement after Employment Relations Board concluded that represented liquor enforcement officers were not “police officers” who were prohibited from striking by ORS 243.736 and therefore entitled to binding arbitration concerning terms of agreement under this section, issue of employes’ status was not moot on review because status could have ongoing effect on parties’ relations under agreement. AFSCME Local 2505 v. OLCC, 91 Or App 385, 755 P2d 148 (1988)

LAW REVIEW CITATIONS: 28 WLR 259 (1992)

243.746

LAW REVIEW CITATIONS: 32 WLR 69 (1996)

243.752

NOTES OF DECISIONS

This section does not violate city’s constitutional home rule powers nor does it unconstitutionally delegate legislative power to the arbitrator. Medford Firefighters Ass’n v. City of Medford, 40 Or App 519, 595 P2d 1268 (1979), Sup Ct review denied

Since this section does not mandate exclusive review of arbitrator’s award by circuit court, Employment Relations Board could properly review award. AFSCME v. Executive Dept. 52 Or App 457, 628 P2d 1228 (1981), Sup Ct review denied

Where city did not participate in fact finding, union’s request for arbitration constituted initiation of arbitration procedures, so arbitrator had authority to award salary increase for fiscal year during which union’s request for arbitration was made. La Grande Police Assoc. v. Hamilton, 56 Or App 133, 641 P2d 1132 (1982)

While Employment Relations Board has primary jurisdiction over wage claim suits based on arbitration award because of its duty under this section to determine whether award is final and employer has complied with it, its jurisdiction is not exclusive and once Board has made order stating award is final and binding and that employer has failed or refused to comply with it, circuit court has jurisdiction to enforce order. Tracy v. Lane County, 305 Or 378, 752 P2d 300 (1988)

243.766

NOTES OF DECISIONS

A previously unrepresented employe in a longstanding job classification cannot be added to an existing bargaining unit without the opportunity to vote. Port of Portland v. Municipal Employees, Local 483, 27 Or App 479, 556 P2d 692 (1976)

Decision to invalidate election result and hold new certification election is reviewable final order because determinative of voter’s right to make choice in invalidated election. OPEU Local 503 v. Judicial Dept., 142 Or App 169, 919 P2d 1200 (1996), Sup Ct review denied

243.772

NOTES OF DECISIONS

The board is not authorized under this section to invalidate local legislation if by so doing it would deprive home rule cities of the power to legislate on matters in which their interests as distinguished from the state’s is paramount; such an interpretation of this section would be unconstitutional. City of Beaverton v. Intl. Assn. of Fire Fighters, 20 Or App 293, 531 P2d 730 (1975), Sup Ct review denied

This section relates to conflicts between Public Employe Collective Bargaining Act (ORS 243.650 et seq.) and purely local legislation and not conflicts between Act and another state statute. AFSCME v. Clackamas County, 69 Or App 488, 687 P2d 1102 (1984)

243.782

NOTES OF DECISIONS

In suit against majority union alleging wrongful withholding of fair share payments, minority union could proceed as representative of named individual petitioners even though it lacked standing to bring complaint on its own behalf. Oregon City Federation of Teachers v. OCEA, 36 Or App 27, 584 P2d 303 (1978)

243.810 to 243.830

ATTY. GEN. OPINIONS: Authority for voluntary pension trust program for public employes not in education, (1971) Vol 35, p 998

243.820

ATTY. GEN. OPINIONS: Employer match of employe contributions for tax-sheltered annuities, (1982) Vol. 43, p 14

243.910 to 243.940

ATTY. GEN. OPINIONS: Authority for voluntary pension trust program for public employes not in education, (1971) Vol 35, p 998