Multnomah Cty. v. Mult. Cty. Corrections Deputy Assn. , 317 Or. App. 89 ( 2022 )

89
Argued and submitted June 3, 2021, affirmed January 20, 2022
MULTNOMAH COUNTY,
Petitioner,
v.
MULTNOMAH COUNTY
CORRECTIONS DEPUTY ASSOCIATION,
Respondent.
Employment Relations Board
UP00319; A174035
505 P3d 1037
Petitioner Multnomah County seeks judicial review of a reconsideration
order issued by the Employment Relations Board (board). In that order, the
board concluded that, under Oregon’s Public Employee Collective Bargaining Act
(PECBA), ORS 243.650 to 243.782, a public employer has a duty to bargain in
good faith when a union initiates midterm bargaining over mandatory subjects
not specifically covered by the parties’ agreement, even in the absence of a unilat-
eral change proposed or made by the employer. In its sole assignment of error, the
county argues that PECBA does not impose the duty articulated in the board’s
order. Held: The board’s interpretation of the phrase at issue in ORS 243.650(4)
was entitled to deference, because it turned on the meaning of delegative terms.
And—under that deferential standard of review, and in light of the more general
policy underlying PECBA—the board’s conclusion was consistent with the range
of discretion allowed by that policy.
Affirmed.
David Landrum argued the cause and filed the briefs for
petitioner.
Aruna A. Masih argued the cause and filed the brief for
respondent.
Lory J. Kraut and Fallon Niedrist filed the brief amici
curiae for League of Oregon Cities, Association of Oregon
Counties, and Oregon Public Employer Labor Relations
Association.
Jason M. Weyand, Danielle Holmes, and Tedesco Law
Group filed the brief amici curiae for Oregon Schools
Employees Association, American Federation of State,
County and Municipal Employees, Council 75, Oregon
Education Association, Oregon American Federation of
Labor–Congress of Industrial Organizations, Oregon State
90 Multnomah Cty. v. Mult. Cty. Corrections Deputy Assn.
Firefighters Council, Teamsters Local 223, Service
Employees International Union, Local 503, and American
Federation of Teachers Oregon.
Before Tookey, Presiding Judge, and Aoyagi, Judge, and
Armstrong, Senior Judge.
TOOKEY, P. J.
Affirmed.
Cite as 317 Or App 89 (2022) 91
TOOKEY, P. J.
Petitioner Multnomah County seeks judicial review
of a reconsideration order issued by the Employment
Relations Board (board). In that order, the board concluded
that, under Oregon’s Public Employee Collective Bargaining
Act (PECBA), ORS 243.650 to 243.782, a public employer
has a duty to bargain in good faith when a union initiates
midterm bargaining over mandatory subjects not specifi-
cally covered by the parties’ agreement, even in the absence
of a unilateral change proposed or made by the employer. In
its sole assignment of error, the county argues that PECBA
does not impose the duty articulated in the board’s order.
We affirm.1
BACKGROUND
The parties “do not contest the board’s findings of
historical fact,” so we “take the facts from the board’s order,
supplementing them with consistent facts from the record
as necessary.” Vaughn v. Marion County, 305 Or App 1, 2,
469 P3d 231 (2020).
The association filed a complaint with the board,
alleging that the county had committed an unfair labor
practice by refusing to bargain in good faith with the asso-
ciation about “mandatory safety issues.” The board deter-
mined that the county had not committed an unfair labor
practice and dismissed the association’s complaint.
The association then filed a request for reconsid-
eration, and the county joined in that request, asking the
board to clarify, among other points, “whether the County
1
Regarding the basis for review in this case, the association contends that,
“under ORS 183.480, any party to an agency proceeding is entitled to judicial
review of the final order,” but that “[u]nder ORS 663.220, however, only a ‘person
aggrieved by a final order of [the board] * * * may obtain review of the order in
the Court of Appeals’ ” and that “the county failed to meet its burden to establish
that it is an ‘aggrieved’ ” person. To the extent that the association contends that
the county must satisfy both the “any party” requirement in ORS 183.480(1) and
the “aggrieved person” requirement in ORS 663.220 to obtain review in this case,
we disagree. Instead, we proceed on the understanding that, in this case, the
county is “a party to an agency proceeding” and is therefore entitled to review
under ORS 183.480(1). See Kellas v. Dept. of Corrections, 341 Or 471, 482, 145 P3d
139 (2006) (“[A] party to an agency proceeding (other than the agency itself) has
standing under ORS 183.480(1) to seek judicial review by that fact alone, without
further showing of interest.” (Internal quotation marks omitted.)).
92 Multnomah Cty. v. Mult. Cty. Corrections Deputy Assn.
has a duty to engage in midterm bargaining about the
safety issues raised by the Association.” The board granted
the parties’ joint request and held a hearing. The county
argued that it had no duty to engage in midterm bargaining
where it had not proposed or made any unilateral change
concerning or affecting a mandatory subject. The associa-
tion argued that it had the right to initiate midterm bar-
gaining over mandatory safety issues and should not have to
wait until the next round of successor bargaining to address
those issues.
Thereafter, the board issued a reconsideration order,
explaining that the parties’ dispute “boils down to whether
the County has a duty to bargain when the Association
requests midterm bargaining over a mandatory subject
not specifically covered by the parties’ agreement, even in
the absence of a unilateral change proposed or made by
the County.” The board then concluded that “the answer to
that question is yes, the County has [that] duty.”2 In reach-
ing that conclusion, the board’s discussion centered on “the
mutual obligation of a public employer and the representa-
tive 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.” ORS 243.650(4).3
2
In a concurring opinion, one ERB member joined in the majority’s conclu-
sion that the county had not committed an unfair labor practice, but noted that
“the parties’ request for clarification implicates significant legal questions that
were not briefed or argued,” and therefore “decline[d] to conclude that a public
employer has a duty to bargain under PECBA in response to a union-initiated
midterm demand to bargain on a mandatory subject not covered by the contract.”
3
ORS 243.650(4) provides, in its entirety:
“ ‘Collective bargaining’ means the performance of the mutual obligation
of a public employer and the representative of its employees to meet at rea-
sonable 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 bargain-
ing 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. This subsection may not 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 as long
Cite as 317 Or App 89 (2022) 93
Preliminarily, the board noted that it had “unequiv-
ocally answered this question in Redmond [Educ. Ass’n v.
Redmond Sch. Dist. No. 2J, 1 PECBR 41, aff’d, 19 Or App
212, 527 P3d 143 (1974)],” where it had relied on Nat’l Labor
Relations Bd. v. Jacobs Mfg. Co., 196 F2d 680, 684 (2d Cir
1952)—a federal case interpreting the National Labor
Relations Act—to support the proposition that “an employer
has a duty to bargain in good faith when a union initiates
midterm bargaining on mandatory subjects not specifically
covered by the parties’ agreement.” The board then said that
“even in the absence of Redmond, we would reach the same
conclusion” and proceeded with its analysis.
The board began by explaining that “ ‘collective bar-
gaining’ is, by definition, mutual,” under the first clause of
ORS 243.650(4), which provides:
“ ‘Collective bargaining’ means the performance of the
mutual obligation of a public employer and the representa-
tive 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[.]”
(Emphasis added.) The board reasoned that, to interpret
that provision “as giving only a public employer, and not a
labor organization, the right to initiate bargaining during
the term of the contract, we would have to ignore the ‘mutual’
element of the statutory definition of collective bargaining.”
as there is mutual agreement of the parties to discuss these matters, which
are permissive subjects of bargaining.”
This case involves the “mutual obligation” to collectively bargain and “meet at
reasonable times and confer in good faith” as provided in ORS 243.650(4) (defin-
ing “collective bargaining”). Though a statute’s “drafter should take care not
to place substantive matter in a definition,” Office of Legislative Counsel, Bill
Drafting Manual § 7.2 (2018), substantive matter nevertheless appears within
definitions. See, e.g., id. (noting workers’ compensation statutory definitions, ORS
656.005, include several examples of “substance entwined with definitions”). This
is another such case; ORS 243.650(4) defines “collective bargaining” and oper-
ates as a substantive provision creating rights and obligations concerning col-
lective bargaining. Cf. Long v. Storms, 52 Or App 685, 687, 629 P2d 827 (1981)
(“Substantive law is that part of the law which creates, defines, and regulates
rights[.]”). And, looking in particular at the board’s analysis in its reconsider-
ation order, as well as the parties’ briefing, ORS 243.650(4) is the focus of the
bargaining obligation at issue. Consequently, our analysis focuses primarily on
the bargaining obligations provided in ORS 243.650(4).
94 Multnomah Cty. v. Mult. Cty. Corrections Deputy Assn.
The board further explained that the policy under-
lying PECBA was “intended to bring the parties into a col-
lective bargaining atmosphere of equality of bargaining
power.” (Internal quotation marks omitted.) The board rea-
soned that to “allow public employers to retain the right to
raise new issues when they arise midterm, but deny that
same right to public employee unions, would provide an
unfair advantage and create a bargaining inequality that
conflicts with [PECBA’s] purposes.”
In addition, the board noted that PECBA had been
modeled after the National Labor Relations Act (NLRA),
under which “unions and employers have always had an
equal right to initiate midterm bargaining.” Again citing
Jacobs, 196 F2d 680, the board said, “[T]he rule that unions
have the right to initiate midterm bargaining was already
well-settled under the NLRA when the legislature modeled
PECBA on that statute” in 1973.
Ultimately, the board concluded that “the collective
bargaining rights and duties that PECBA confers on both
parties, not just an employer, include the right to initiate
midterm collective bargaining” over “mandatory subjects
not specifically covered by the parties’ existing agreement,”
and that “permitting both parties to exercise that right
advances PECBA’s policies and purposes.” (Emphasis in
original.)
On review, the county argues that the board erred
in construing PECBA, because “PECBA does not impose a
duty on public employers to bargain midterm over subjects
not covered in a CBA where the employer neither makes
nor proposes any change to the status quo.” In response,
the association argues that the board’s “conclusion regard-
ing the ‘mutuality’ of the ‘collective bargaining’ rights and
duties provided for in the PECBA should be upheld because
it is consistent with not only the Redmond case and pre-
PECBA NLRA cases, but also the text, context, and legisla-
tive history of ORS 243.650(4).”
In addition, amici for both the county and the asso-
ciation submitted briefs in support of the parties’ respective
positions. Amici for the county argue, among other points,
Cite as 317 Or App 89 (2022) 95
that the board’s decision “will disrupt and impede efficient
operation of government entities” and “undermines rather
than promotes harmonious and cooperative” labor relations.
Amici for the association contend, among other points, that
the board’s order is “consistent with the clear text of the
statute” and “previous [board] and private sector precedent,”
and that it “advances the purposes and policies underlying
the PECBA.”
STATUTORY TERMS & STANDARD OF REVIEW
We begin by determining our standard of review.
The parties’ arguments center on the board’s conclusion
about the collective bargaining obligations imposed by
PECBA. As noted above, the board reached that conclu-
sion, in part, by relying on ORS 243.650(4). Thus, this case
presents a question about “the intended meaning of a stat-
ute,” which “ultimately is a question of law.” OR-OSHA v.
CBI Services, Inc., 356 Or 577, 585, 341 P3d 701 (2014). But,
“depending on the nature of the statutory term at issue, an
administrative agency’s construction of a statute neverthe-
less may be entitled to a measure of deference.” Id.“Whether the agency’s construction is entitled to
such deference depends on whether the disputed term is
exact, inexact, or delegative.” Id. “ ‘Exact terms’ impart rela-
tively precise meanings, and their applicability in a partic-
ular case involves only agency factfinding.” Coast Security
Mortgage Corp. v. Real Estate Agency, 331 Or 348, 353, 15
P3d 29 (2000) (citing Springfield Education Assn. v. School
Dist., 290 Or 217, 223-24, 621 P2d 547 (1980) (illustrating
exact terms, “e.g., 21 years of age, male, 30 days, Class II
farmland, rodent, [or] Marion County”)). “Inexact terms are
less precise and are open to various interpretations, but
they embody a complete expression of legislative meaning.”
Arvidson v. Liberty Northwest Ins. Corp., 366 Or 693, 700,
467 P3d 741 (2020) (holding that “find” is an inexact term,
as used in the phrase “finds that * * * all or part of the com-
pensation awarded * * * should not be reduced or disallowed”
(internal quotation marks omitted)). “Delegative terms
express incomplete legislative meaning that the agency is
authorized to complete”—e.g., “ ‘good cause,’ ‘fair,’ ‘undue,’
‘unreasonable,’ and ‘public convenience and necessity.’ ”
96 Multnomah Cty. v. Mult. Cty. Corrections Deputy Assn.
CBI Services, Inc., 356 Or at 585 (internal quotation marks
omitted).
Here, the phrase at issue is “the mutual obligation
of a public employer and the representative * * * to meet at
reasonable times and confer in good faith with respect to
employment relations for the purpose of negotiations con-
cerning mandatory subjects of bargaining[.]” ORS 243.650(4)
(emphases added). Some components of that phrase are statu-
torily defined. See ORS 243.650(7), (20) (defining “employ-
ment relations” and “public employer”). But the larger
phrase itself is not exact—particularly in light of the unde-
fined term “mutual obligation” and the phrase “meet at rea-
sonable times and confer in good faith”—because “it lacks
a meaning so precise as to require only factfinding.” CBI
Services, Inc., 356 Or at 589. Thus, we must initially deter-
mine whether the phrase “the mutual obligation of a public
employer and the representative * * * to meet at reasonable
times and confer in good faith with respect to employment
relations for the purpose of negotiations concerning manda-
tory subjects of bargaining” is inexact or delegative.
In determining whether a given term is delegative,
the Supreme Court “has taken several considerations into
account.” Id. at 590 (collecting cases). First, the court “often
has compared a disputed term to those the court already
has concluded are delegative in nature.” Id. Second, “the
court has asked whether the disputed term is defined by
statute or instead is readily susceptible to multiple interpre-
tations.” Id. Third, “the court has inquired whether the term
in contention requires the agency to engage in policy deter-
mination or make value judgments.” Id. Finally, the court
has “looked to the larger context of the statute in dispute, to
determine whether other provisions suggest that the legis-
lature did or did not intend a term to be regarded as delega-
tive.” Id.With those considerations in mind, we turn to the
phrase at issue here—i.e., “the mutual obligation of a public
employer and the representative * * * to meet at reasonable
times and confer in good faith with respect to employment
relations for the purpose of negotiations concerning manda-
tory subjects of bargaining.”
Cite as 317 Or App 89 (2022) 97
First, that phrase bears some similarity to one this
court has already concluded is delegative—viz., “bargain
collectively in good faith with the exclusive representative,”
as used in ORS 243.672(1)(e). Olney School Dist. 11 v. Olney
Education Assn., 145 Or App 578, 582, 931 P2d 804 (1997)
(“By using the phrase ‘bargain collectively in good faith with
the exclusive representative,’ in ORS 243.672(1)(e) [(provid-
ing that employer’s refusal to bargain collectively is unlaw-
ful labor practice)], the legislature expressed a general
legislative policy and delegated to ERB the responsibility
to complete that policy.”); see also Lincoln Cty. Ed. Assn. v.
Lincoln Cty. Sch. Dist., 187 Or App 92, 98, 67 P3d 951 (2003)
(“[T]he Legislative Assembly has delegated broad discre-
tion to ERB in interpreting and deciding how to implement
ORS 243.672(1)(e).”). Additionally, that phrase includes the
terms “reasonable times” and “good faith,” which are sim-
ilar to terms we have already determined are delegative.
See Vaughn, 305 Or App at 8 (“ ‘Reasonable’ is a delegative
term.”);4 Clackamas County Employees’ Assn. v. Clackamas
County, 243 Or App 34, 39, 259 P3d 932 (2011) (“Examples
of delegative terms include ‘good faith[.]’ ”). Second, as the
parties’ arguments demonstrate, that phrase is suscepti-
ble to multiple interpretations, and “mutual obligation”—a
term on which the board placed particular emphasis—along
with “reasonable times” and “good faith” are not defined in
PECBA. Third, the phrase also required the board to make
a value judgment or policy determination about what sort
of “mutual obligation” best comports with the values and
4
We understand “reasonable times” to be a delegative term in this context,
in part, because we have held similar terms to be delegative in other contexts.
See, e.g., Vaughn, 305 Or App at 8 (“reasonable” in ORS 656.802(3)(b) is dele-
gative); Nulph v. Board of Parole, 279 Or App 652, 381 P3d 94 (2016), rev dis-
missed, 361 Or 351 (2017) (“reasonable cause” in ORS 144.228(1)(c) is “delega-
tive in nature”); CBI Services, Inc., 356 Or at 585 (“reasonable diligence” in ORS
654.086(2) is delegative); Oregon Assn. of Rehab. Prof. v. Dept. of Ins., 99 Or App
613, 616, 783 P2d 1014 (1989) (“reasonable” in ORS 656.340(9)(d) “is a delega-
tive term”); Sayers v. Employment Division, 59 Or App 270, 279, 650 P2d 1024(1982) (“reasonable time” in ORS 657.875 is delegative). However, “reasonable”
might be a different type of term in a different context, because “[d]etermin-
ing the nature of a term, whether it is exact, inexact, or delegative, necessarily
depends on the context in which the term is used.” Meier v. Salem-Keizer School
Dist., 284 Or App 497, 506, 392 P3d 796, rev den, 362 Or 175 (2017)); see also
J. R. Simplot Co. v. Dept. of Agriculture, 340 Or 188, 197, 131 P3d 162 (2006)
(concluding that “reasonably necessary” is not delegative, but inexact, given addi-
tional, qualifying statutory wording in ORS 632.940).
98 Multnomah Cty. v. Mult. Cty. Corrections Deputy Assn.
policies undergirding PECBA, what are “reasonable times”
to meet, and what “good faith” conferral requires. Fourth
and finally, nothing in PECBA’s other provisions suggests to
us that the phrase was intended to be something other than
delegative in nature.
For those reasons, we conclude that the board’s
interpretation of the larger phrase at issue in ORS 243.650(4)
is entitled to deference, because it turned on the meaning
of delegative terms, including “mutual obligation” and the
phrase “meet at reasonable times and confer in good faith
with respect to employment relations” (emphasis added), the
latter of which expresses a general legislative policy and del-
egates to the board the responsibility to complete that pol-
icy by specifying what constitutes bargaining collectively at
reasonable times and in good faith.
“Appellate courts review an agency’s interpreta-
tion of delegative terms to ensure that the interpretation is
within the range of discretion allowed by the more general
policy of the statute.” CBI Services, Inc., 356 Or at 585 (inter-
nal quotation marks omitted); see also Springfield Education
Assn., 290 Or at 229 (“[T]he review function of the court is to
see that the agency’s decision is within the range of discre-
tion allowed by the more general policy of the statute.”).
ANALYSIS
“Where a statutory term is delegative, the agency
must determine the legislative policy underlying the statute
and construe and apply the term consistently with that pol-
icy.” Bergerson v. Salem-Keizer Sch. Dist., 194 Or App 301,
311, 95 P3d 215 (2004), aff’d, 341 Or 401, 144 P3d 918 (2006).
“Determining the general policy expressed in the statute is
itself a matter of statutory construction.” Id. (internal quo-
tation marks omitted). Accordingly, we “apply the interpre-
tive principles established by PGE v. Bureau of Labor and
Industries, 317 Or 606, 610-12, 859 P2d 1143 (1993),” and
State v. Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009)
(examining statutory text, context, and legislative history
at the first step, followed by general maxims of construction
if uncertainty remains). Bergerson, 194 Or App at 311. At
“the first level of interpretation, we consider among other
Cite as 317 Or App 89 (2022) 99
things, prior judicial interpretations of the relevant stat-
utes,” id., which we consider dispositive here.
The Supreme Court discussed the policies underly-
ing PECBA in AFSCME Council 75 v. City of Lebanon, 360
Or 809, 815-18, 388 P3d 1028 (2017). Citing ORS 243.656—
which explicitly states the policy considerations underlying
PECBA—the Supreme Court noted that the “Oregon legisla-
ture [has] declared that the purposes of PECBA are to ‘obli-
gate public employers, public employees, and their represen-
tatives to enter into collective negotiations with willingness
to resolve grievances and disputes relating to employment
relations.’ ” (Emphasis added.) Regarding PECBA’s underly-
ing policy, the legislature also declared,
“(1) The people of this state have a fundamental interest
in the development of harmonious and cooperative relation-
ships between government and its employees;
“(2) Recognition by public employers of the right of pub-
lic employees to organize and full acceptance of the princi-
ple and procedure of collective negotiation between public
employers and public employee organizations can alleviate
various forms of strife and unrest. * * *; [and]
“(3) * * * [P]rotection by law of the right of employees to
organize and negotiate collectively safeguards employees
and the public from injury, impairment and interruptions
of necessary services, and removes certain recognized
sources of strife and unrest * * * by establishing greater
equality of bargaining power between public employers
and public employees.”
ORS 243.656(1) - (3). The Supreme Court concluded that the
“legislature’s statement of policy thus demonstrates an
intent for PECBA to apply broadly in favor of public employ-
ees’ rights to organize and bargain collectively.” AFSCME
Council 75, 360 Or at 823 (emphasis added).
The Supreme Court also observed that, “[b]asically,
in enacting PECBA, the legislature extended to public
employees in Oregon the same benefits and protections that
federal law had long afforded to employees in the private
sector under the National Labor Relations Act (NLRA).”
100 Multnomah Cty. v. Mult. Cty. Corrections Deputy Assn.
AFSCME Council 75, 360 Or at 816. The court explained
that the “overarching purpose of the NLRA * * * was to pro-
tect employees against employer interference with their
organizational rights” and that, to accomplish that pur-
pose, “the NLRA conferred on employees a ‘triad of rights,’ ”
including “the right to bargain collectively.” Id. The court
further explained that, in “many respects, PECBA was pat-
terned after the NLRA,” and that “PECBA and the NLRA
both express policies of promoting collective bargaining.”
Id. at 817-18 (emphasis added).
Relatedly, the Supreme Court said that, because
“the legislature largely modeled Oregon’s statute after
the federal one,” it would seek guidance in understanding
PECBA by “consider[ing] federal cases interpreting the
NLRA that were in existence at the time that the legisla-
ture enacted PECBA” in 1973. Id. at 824. As relevant here,
one such federal case—which was cited by the board in its
reconsideration order—is Nat’l Labor Relations Bd. v. Jacobs
Mfg. Co., 196 F2d 680 (2d Cir 1952).
In Jacobs, one issue before the court was whether the
employer had a duty to bargain when the union requested
midterm bargaining over pensions—a mandatory subject
not specifically covered in the parties’ existing agreement.
Id. at 683. The employer argued, in essence, that it had no
duty to bargain over pensions during “the term of the con-
tract,” because that subject had not been “expressly reserved
for further negotiations in a reopening clause.” Id. at 683-84.
The Jacobs court rejected that argument, explaining that
no provision of the NLRA “relieves an employer of the duty
to bargain as to subjects which were neither discussed nor
embodied in any of the terms and conditions of the con-
tract,” and that “the general purpose of the [NLRA] * * * is
to require employers to bargain as to employee demands
whenever made.” Id. at 684 (emphasis added). “Therefore,”
the Jacobs court concluded, “it was the [employer’s] statu-
tory duty to bargain on the subject of pensions.” Id.; see also
N. L. R. B. v. Niles-Bement-Pond Co., 199 F2d 713, 714 (2d Cir
1952) (citing Jacobs, 196 F2d 680, and holding that, where
existing agreement did not cover remunerative “bonuses,”
NLRA required the employer to bargain midterm “when the
union requested it to do so” (emphasis added)); Nat’l Treasury
Cite as 317 Or App 89 (2022) 101
Emps. Union v. Fed. Labor Relations Auth., 810 F2d 295, 299
(DC Cir 1987), abrogated on other grounds by Nat’l Fed’n
of Fed. Emps., Local 1309 v. Dept. of Interior, 526 US 86,
119 S Ct 1003, 143 L Ed 2d 171 (1999) (citing Jacobs, 196
F2d at 684, and explaining that, under the NLRA, “there
is clear and long-established precedent that the duty to bar-
gain extends also to midterm proposals initiated by either
management or labor,” and that “it is undisputed that the
Jacobs case is fully integrated into the fabric of labor law”
(emphasis added)).
The foregoing discussion demonstrates that the gen-
eral policy underlying PECBA includes fostering harmoni-
ous and cooperative relations between public employers and
organized labor; requiring public employers’ “recognition”
and “full acceptance” of the “principle and procedure” of
collective bargaining; establishing an “equality of bargain-
ing power” between the parties; and requiring employers to
bargain over a union’s demands “whenever made,” including
midterm.5
In light of that policy, and in light of our deferential
standard of review in this case, we hold that the board’s con-
clusion under ORS 243.650(4)—i.e., that “the County has a
duty to bargain when the association requests midterm bar-
gaining over a mandatory subject not specifically covered by
the parties’ agreement, even in the absence of a unilateral
change proposed or made by the county”—is consistent with
the range of discretion allowed by the more general policy
underlying PECBA.
In seeking a different result, the county contends
that the board’s conclusion is incorrect, because the 1995
legislature amended the definition of “collective bargaining”
in ORS 243.650(4) by passing Senate Bill (SB) 750 (1995),
thereby “limit[ing] the obligation of government employers
to bargain over midterm demands by a union to ‘any dispute
5
That point should not be understood to mean that an employer would be
required to bargain over a subject as to which a union has waived its bargaining
rights. See, e.g., Portland Fire Fighters’ Assn. v. City of Portland, 302 Or App
395, 402, 461 P3d 1001 (2020) (“[A] party may waive its right to bargain through
clear and unmistakable language in a contract, bargaining history, or the party’s
action or inaction.”).
102 Multnomah Cty. v. Mult. Cty. Corrections Deputy Assn.
concerning interpretation or application of a collective bar-
gaining agreement.’ ” (Quoting, in part, ORS 243.650(4).)6
Although the county is correct that ORS 243.650(4)
was amended in 1995, we disagree that those amend-
ments undermine the board’s conclusion. For one, the spe-
cific text in ORS 243.650(4) on which the board relied in
its order—i.e., “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”—was not affected by the
1995 amendments. Before 1995, ORS 243.650(4) (1993),
amended by Or Laws 1995, ch 286, § 1, provided, in relevant
part:
“ ‘Collective bargaining’ means the performance of the
mutual obligation of a public employer and the representa-
tive of its employees to meet at reasonable times and confer
in good faith with respect to employment relations, or the
negotiation of an agreement, or any question arising there-
under, and the execution of a written contract incorporat-
ing any agreement reached if requested by either party.
* * *”
After the legislature amended it in 1995, ORS 243.650(4)
provided, in relevant part:
“ ‘Collective bargaining’ means the performance of the
mutual obligation of a public employer and the representa-
tive of its employees to meet at reasonable times and confer
in good faith with respect to employment relations[, or the
negotiation of an agreement, or any question arising there-
under, and the execution of a written contract incorporating
any agreement reached if requested by either party] for the
purpose of negotiations concerning mandatory subjects
6
With respect to those 1995 amendments, the county makes three additional
arguments: (1) the 1995 amendments created a “new, expedited midterm bar-
gaining process” under ORS 243.698 (providing for expedited 90-day bargaining
process for employer-proposed midterm changes), but “[t]he legislature did not
include any provision for union-initiated midterm demands to bargain”; (2) the
1995 amendments limited midterm renegotiations to “words or sections of the
agreement declared ‘invalid’ ” pursuant to ORS 243.702 (providing for expedited
90-day bargaining process when contract provision is declared invalid or cannot
be performed); and (3) the 1995 amendments “resulted in a diminished ‘textual
connection’ between PECBA and the NLRA,” which “undermines the basis of the
[board’s] reliance on” federal case law interpreting the NLRA. We reject those
additional arguments without further discussion.
Cite as 317 Or App 89 (2022) 103
of bargaining, to meet and confer in good faith in accor-
dance with law with respect to any dispute concerning
the interpretation or application of a collective bargain-
ing agreement, and to execute written contracts incor-
porating agreements that have been reached on behalf
of the public employer and the employees in the bargain-
ing unit covered by such negotiations. * * *”
Or Laws 1995, ch 286, § 1 (boldface, brackets, and italics in
original).
As shown by that statutory text, although the sec-
ond and third clauses of that definition were amended in
1995, the text in the first clause on which the board relied
was not.7 The board was aware of this fact and addressed
those 1995 amendments in its order, stating, among other
points, that “SB 750 left unchanged the first part of that
definition, which is the portion that is material to our deci-
sion,” and that “we find no evidence of a legislative intent
[in SB 750] to eliminate the substantive right of unions (but
not employers) to initiate midterm collective bargaining.”
(Emphasis in original.) Thus, the board’s conclusion did
not rely on any text in ORS 243.650(4) affected by the 1995
amendments; none of the text on which the board relied was
amended or repealed, nor was any new text added to the part
of that definition material to the board’s analysis. Moreover,
the county does not explain how the 1995 amendments that
affected other parts of ORS 243.650(4) would, nevertheless,
undermine the board’s reliance on the unamended part of
that statute. Consequently, we are not persuaded that the
SB 750 amendments to ORS 243.650(4) limited a public
employer’s collective bargaining obligations in the way that
the county contends.
7
The parties assert, and we agree, that the definition of “collective bargain-
ing” in ORS 243.650(4) comprises three separate duties set forth in three sepa-
rate clauses:
• the duty to meet at reasonable times and confer in good faith with respect
to employment relations (first clause);
• the duty to meet and confer in good faith in accordance with law with
respect to any dispute concerning the interpretation or application of a col-
lective bargaining agreement (second clause); and
• the duty 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 (third clause).
104 Multnomah Cty. v. Mult. Cty. Corrections Deputy Assn.
In sum, because the board’s conclusion regarding
the county’s collective bargaining obligations under ORS
243.650(4) is consistent with the range of discretion allowed
by the more general policy underlying PECBA, the board’s
reconsideration order is affirmed.
Affirmed.