DocketNumber: UP05710, UP06410; A149062
Citation Numbers: 257 Or. App. 713, 308 P.3d 230
Judges: Armstrong, Brewer, Duncan, Tempore
Filed Date: 7/31/2013
Status: Precedential
Modified Date: 7/24/2022
Petitioner Multnomah County Corrections Deputy Association seeks judicial review of a final order of the Employment Relations Board in which the board concluded that respondent Multnomah County did not violate its duty to bargain in good faith, ORS 243.672(1)(e), when it refused to bargain over the association’s proposal for mandated training hours and, conversely, that the association violated its counterpart duty to bargain in good faith, ORS 243.672(2)(b), when it submitted that proposal, over the county’s objections, as part of its final offer of settlement.
The key question in the case is whether the association’s proposal that all sworn county corrections employees be provided a minimum number of hours of approved annual training — half of which were to be “DPSST-approved”
In 2007, the legislature amended the definition of employment relations in ORS 243.650(7) to provide that, for strike-prohibited employees, such as the corrections employees in this case,
‘“employment relations’ includes safety issues that have an impact on the on-the-job safety of the employees or staffing levels that have a significant impact on the on-the-job safety of the employees.”
Or Laws 2007, ch 141, § la; ORS 243.650(7)(f) (emphasis added). Under the previous version of the statute, only “safety issues” that had “a direct and substantial effect on the on-the-job safety of public employees” were included in the definition of “employment relations.” See ORS 243.650(7)(f) (2005) (emphasis added).
Applying the amended statute for the first time, the board here concluded that the association’s training proposal did not involve a “safety issue” because it did not, “directly and unambiguously address [ ] a matter related to strike-prohibited employees’ workplace safety.” The correctness of that conclusion is the central issue on judicial review. Based on our review of the text, context, and legislative history of the 2007 amendments to ORS 243.650(7), we agree with the board’s conclusion that it must be apparent from the face of a proposal itself — that is, “directly” and without reference to extrinsic evidence — that the proposal involves a “safety issue.” However, the board’s introduction of a requirement of “unambiguousness” to the statute is not supported by its text, context, or history and, indeed, is contradicted by the expressed intention of the legislature. Thus, as we explain below, we conclude that the subject of a proposal is a “safety issue” for purposes of ORS 243.650(7)(f) if it would reasonably be understood, on its face, to directly address a matter related to the on-the-job safety of strike-prohibited employees. We further conclude that the proposal at issue here does
These facts are undisputed. The association, which is the exclusive representative for a bargaining unit of county corrections employees, and the county were parties to a collective bargaining agreement effective July 1, 2004, through June 30,2010. In August 2008, the parties amended and extended that agreement; the amended agreement was effective August 14, 2008, and continues through June 30, 2014. In accordance with an addendum that allowed the parties to “reopen” certain articles of the 2008-2014 agreement— including two each of the parties’ choosing — the parties began “limited reopener” bargaining on March 26,2010.
The association identified Article 17, “Corrections Service and Training Achievement Program” as one of the articles that it wanted to modify, and it submitted a formal proposal, which, among other things, sought to add the following:
“5. Training. The Sheriff will establish training requirements for Corrections Deputies and Corrections Sergeants. Beginning in the second year of this agreement, all sworn employees shall receive a minimum of forty (40) hours of approved training per year, of which at least twenty (20) hours shall be DPSST-approved training. The employee shall participate in training, including firearms training, at times set by the Sheriff or his designees. Employees participating in any required training during off-duty hours shall be compensated at the overtime rate for time spent in training, or may be permitted to flex hours with the approval of their supervisor.”
(Emphasis added; boldface and underscoring omitted.) The county declared that the proposal for a guaranteed 40 hours of training each year (set out in italics above) was a permissive subject of bargaining and refused to bargain over it. The association nonetheless included that proposal in its final offer submitted to the state conciliator under ORS 243.712(2)(b).
The board first considered the meaning of “safety issues” as used in ORS 243.650(7)(f), which, again, provides, as pertinent:
“For employee bargaininginvolving employees covered by ORS 243.736,[5 ] ‘employment relations’ includes safety issues that have an impact on the on-the-job safety of the employees[.]”
(Emphasis added.) After considering the text and context, the legislative history offered by the association, and the rationale of the board’s prior cases interpreting the pre2007 version of the statute, the board concluded that “the subject of a proposal is a ‘safety issue’ if the proposal directly and unambiguously addresses a matter related to strike-prohibited employees’ workplace safety.” (Emphasis added.) Applying that test, the board determined that, in this case, because the connection between training and safety was not apparent from the proposal’s text, but only after considering extrinsic evidence of the “intent” of the proposal, the subject of the proposal was not a “safety issue.” Having so concluded, the board did not reach the question whether the proposal fulfilled what it considered the second criterion for determining whether a subject is
The chair of the board, Gamson, dissented. Gamson contended, among other things, that the majority misinterpreted the association’s proposal.
On review, the association’s first, and primary, contention is that the board erred in interpreting “safety issue,” as used in ORS 243.650(7)(f), “to include only proposals [that] ‘directly and unambiguously’ address matters related to workplace safety.” The association argues that the ordinary meaning of the terms “safety” and “issue” — as well as the statute’s reference to “issue” rather than “subject,” which appears elsewhere in ORS 243.650(7) — evidence the legislature’s intention that “safety issues” be understood to sweep more broadly than is allowed under the “subject
The county responds that the board’s interpretation is correct, given the ordinary meaning of the word “safety,” the board’s prior interpretation of the phrase “safety issues” as used in the pre-2007 version of the statute (which there is no indication the legislature intended to change in 2007), the legislative history of the 2007 amendments, and what it asserts is this court’s deference, in the absence of contrary legislative intent, to the board’s “expertise in regard to its rulings relating to policy-based formulation of rules.” We agree with the county, but only to a point.
The association contends, in part, that the ordinary meaning of the words “safety” and “issue” lead to the conclusion that a “safety issue” is a “matter in dispute between two parties that relates to freedom from exposure to danger,” a broader standard than that articulated by the board. That position, however, is not borne out by the relevant statutory context.
The history of the statute is particularly informative in this case. Before 1995, the definition of “employment relations” did not specifically address safety issues; rather, the board decided whether a safety-related bargaining proposal was an “other condition of employment” — and, therefore, “employment relations” subject to mandatory bargaining under what is now ORS 243.650(7)(a)
Then, in 1995, the legislature passed Senate Bill (SB) 750, which, among other changes, added several new paragraphs to ORS 243.650(7), further defining “employment
“(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)!.]”
Or Laws 1995, ch 286, § 1. Consequently, after the enactment of SB 750, except with respect to school-district bargaining, only safety issues that had “a direct and substantial effect on the on the job safety of public employees” were included in the definition of “employment relations” (and therefore subject to mandatory bargaining); otherwise, they were expressly excluded.
In 2007, the legislature revisited subsection (7)(f). Specifically, and as relevant here, Senate Bill (SB) 400 amended ORS 243.650(7) as follows (additions are indicated in bold; deletions are bracketed in italics):
“(f) For employee bargaining involving employees covered by ORS 243.736, ‘employment relations’ includes safety issues that have an impact on the on-the-job safety of the employees or staffing levels that have a significant impact on the on-the-job safety of the employees.
“[(f)] (g) For all other employee bargaining except school [districts] district bargaining and except as provided in paragraph (f) of this subsection, ‘employment relations’ excludes staffing levels and safety issues (except those staffing levels and safety issues [which] that 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.”
Significantly, in enacting the 2007 amendments, the legislature retained the phrase “safety issues” from the pre2007 version of the rule — both in establishing the new rule that applied to bargaining for strike-prohibited employees and in continuing the existing rule for other employee bargaining. Consequently, as the parties recognize, the board’s construction of that phrase in prior cases is important context in determining the meaning of the 2007 amendments. See, e.g., State v. Cloutier, 351 Or 68, 99, 261 P3d 1234 (2011) (“Although, in the abstract, there is nothing that precludes the legislature from defining the same terms to mean different things in the same or related statutes, in the absence of evidence to the contrary, we ordinarily assume that the legislature uses terms in related statutes consistently.”); Mastriano v. Board of Parole, 342 Or 684, 693, 159 P3d 1151 (2007) (“[W]e generally presume that the legislature enacts statutes in light of existing judicial decisions that have a direct bearing on those statutes.”).
Before turning to those cases, however, we first dispose of the association’s argument (echoing Gamson’s dissent) that the board misinterpreted the statute by analyzing whether the subject of a proposal is safety, because paragraph (f) — unlike some other portions of subsection (7)— does not expressly use the word “subject.” We are not persuaded.
As discussed above, 257 Or App at 715-16, subsection (7) defines “employment relations,” which, in turn,
Having resolved that issue, we turn to the board’s decisions applying the pre-2007 version of ORS 243.650(7)(f).
We begin with Roseburg Firefighters Association, IAFF Local 1110 v. City of Roseburg, 17 PECBR 611 (1998) (Roseburg). One of the issues before the board in Roseburg was whether the city had a duty to bargain its decision to reduce minimum staffing levels in the city fire department. As relevant here, the city contended that the issue was “staffing” and, thus, a “permissive” subject of bargaining, while the association argued that the issues were “safety” and “workload,” which, before the 1995 enactmentofSB 750, were “typically found to be mandatory bargaining subjects.” Id. at 629. The board concluded, however, that it was essentially immaterial whether the subject was staffing or, instead, safety and workload, because, under ORS 243.650(7)(f), as amended by SB 750 (1995), “both staffing and safety are now expressly permissive, unless they have a direct and substantial effect on the on-the-job safety of public employees,” id. at 629 (internal quotation marks omitted), and the evidence in the record did not meet that test, id. at 631.
However, the board did note that, even without the “direct and substantial” test added by the SB 750 (1995) amendments, it was “doubtful that [the] Board would have found the subject of the Association’s proposals to be safety,” because, as in one of its pre-SB 750 cases, Polk County v. Polk County Deputy Sheriff’s Association, 6 PECBR 4641 (1981), “the Association’s proposal on its face addresses only staffing levels” and “does not address safety.” Roseburg, 17 PECBR at 630 n 25.
The next case, Federation of Oregon Parole and Probation Officers v. Washington County, 19 PECBR 411 (2001) (FOPPO), involved the county’s implementation of a policy that prohibited employees from carrying firearms while on duty and from carrying firearms while on county property while either on or off duty. The county argued, in part, that, although “the policy concerns the subject of employee safety,” bargaining was permissive, rather than mandatory, under the board’s earlier precedent. Id. at 416. The board “agree [d] with the County that the policy concerns safety.”
“[t]he policy states that it is intended to protect employees from physical harm that could result from accidental or intentional discharge of firearms while the employees are on duty or when they are off duty but on County premises. It is also intended to minimize the potential for intimidation that might occur with firearms present on County property.”
Id. Thus, in FOPPO, it was evident from the policy itself that it directly and unambiguously affected a matter related to safety — minimizing the risk of harm associated with firearms.
Finally, in SEIU Local 503, OPEU v. State of Oregon, Oregon State Hospital, 20 PECBR 189 (2003), SEIU alleged that implementation of a policy discontinuing the use of steel handcuffs to restrain patients at the Oregon State Hospital (OSH) required bargaining. The board agreed with the administrative law judge that “the record does not establish that the ban on steel handcuffs had a direct and substantial effect on employee safety, and that [SEIU’s] complaint should be dismissed.” Id. at 190. The board described the “precise question” before it as “whether the ban on this particular method of restraint — steel handcuffs — increases the risk of injury to employees at OSH so that it has a direct and substantial effect on employee safety” Id. at 195 (emphasis added). Thus, although the board also stated, “The record in this case demonstrates that patient assaults, and the use of patient seclusion and restraint procedures, are safety issues for both patients and staff,” id. (emphasis added), we understand that it did so in the context of answering that question — that is, whether the ban had a direct and substantial effect on employee safety — not the predicate question whether the subject of the policy was a safety issue — and concluded that it did not.
We turn to the legislative history surrounding the enactment of the 2007 amendments to ORS 243.650(7)(f). As noted, the association contends that the legislative history “unequivocally]” supports its position that the legislature intended training to be considered a safety issue subject to mandatory, rather than permissive, bargaining and is “ultimately dispositive” in its favor. For that proposition, the association relies heavily on a colloquy between Senators Prozanski and Devlin on the floor of the Senate, in which Prozanski, a co-sponsor and the carrier of the bill in the Senate, responded to a series of questions involving examples of issues that would not be subject to mandatory bargaining under the then-existing law, as a way of demonstrating the need for a change.
“[Sen Devlin:] I’m representing correctional employees at a county facility. We’re concerned because of some of the issues that we’ve had relative to dealing with people that are incarcerated with mental illness. I would like to see there be more training for us dealing with mental illness issues. I want to bring it up in bargaining. What’s your response?
“[Sen Prozanski:] My response would be [that] as the employer I have the, I guess the opportunity to say yes or no to that. I would say no as an employer because I am not required under the current statute to allow any discussions to take place at the collective bargaining table as it pertains to safety
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“[Sen Devlin:] Thank you, Mr. President. Colleagues. I think we’ve had a demonstration here about why this issue should be moved from permissive to mandatory. * * * There are a lot of red herrings in this particular bill. None of those really * * * are substantive. The real issue is that prior to 1995 when * * * public safety employees could bargain on safety related issues, none of these horror stories ever occurred. * * * This is something that should be put back on the table.”
Audio Recording, Senate Floor Debate, SB 400, Mar 7, 2007, at 47:35 (statements of Sen Floyd Prozanski and Sen Richard Devlin), http://www.leg.state.or.us/listn/archive/ archive.2007s/SENATE-200703071059.ram (accessed July 25, 2013).
Although we agree with the association that a floor statement by the bill’s carrier can be revealing as to the legislature’s intention in enacting a bill, see, e.g., Crooked River Ranch Water Company v. PUC, 224 Or App 485, 492, 198 P3d 967 (2008), in our view, the quoted exchange cannot bear the weight that the association ascribes to it here. The most that can be gleaned from that exchange is that the senators contemplated that training “relative to dealing with people [who] are incarcerated [and suffer from] mental illness” would be considered a safety issue. It does not indicate that the legislature intended the principle to apply to a generic, open-ended training proposal. Indeed, even without that legislative history, it is easy to imagine that a proposal for training corrections officers on interacting with mentally ill inmates would be considered a “safety issue” under the standard we articulate here — that is, it would be apparent
Several labor unions — the Oregon State Fire Fighters Council, Oregon American Federation of Labor and Congress of Industrial Organizations, Oregon Service Employees International Union, Local 503, and American Federation of State, County and Municipal Employees, Council 75 — filed a brief amici curiae, also urging us to reverse the board’s decision. Presenting a more detailed legislative history of SB 400, amici argue that, “by continuing to focus on the definition of‘safety issues,’ and whether a proposal raises something that on its face is a safety issue, the [b]oard misses the point of the [2007] legislative changes,” which was to broaden the scope of safety issues that could be mandatory subjects of bargaining.
It is beyond dispute that the purpose of SB 400 was to expand the scope of safety and staffing matters that are subject to mandatory bargaining. As amici emphasize, there was repeated testimony by proponents of SB 400 that it was designed to increase the ability of strike-prohibited employees to force employers to bargain over safety issues that affect the on-the-job safety of those employees, an ability that had been restricted with the passage of SB 750 in 1995. However, it appears that the legislature accomplished that goal by requiring only that a proposal have “an impact” on safety to be a mandatory subject of bargaining, rather than the heightened “direct and substantial effect” standard that had been in effect since 1995. Senator Prozanski, who, as noted, was a co-sponsor of SB 400, emphasized in committee that the bill was intended to obligate employers to discuss safety issues and to “actually get us back to where we were pre-1995” — that is, before SB 750, under which “safety and staffing issues were not included in the definition of employment relations and therefore were no longer a mandatory bargaining issue unless they have a direct and substantial effect [on the] on-the-job safety of public employees.” Audio
The closest the legislature came to addressing that question occurred during a discussion of amendments to the bill offered — and ultimately adopted — by the House Committee on Business and Labor.
“For employee bargaining involving employees covered by ORS 243.736, ‘employment relations’ includes staffing levels and safety issues that have a potential impact on the on-the-job safety and the workload of the employees.”
SB 400, § 1 (emphasis added). However, when SB 400 reached the House Committee on Business and Labor, proponents offered amendments to address concerns that had been raised in the Senate by employers that the use of the word “potential” to modify “impact” was overly broad and would require bargaining over anything that could conceivably be considered to affect safety. Among other changes, the amendments deleted the modifier “potential” in favor of, simply, “an impact.”
“could still accomplish what we need to have accomplished, protecting the employees, giving them * * * the rights to be able to bargain over safety and staffing but not putting an undue hardship on the employers and opening what I guess they explained as [a] Pandora’s box about potential safety issues.”
Id. at 8:42. Cautioning that the term “safety” by itself — that is, without the modifier “potential” — was subject to possible misinterpretation by the board, he further explained:
“And I think in layman’s terms what we’re trying to accomplish here is a standard in which any reasonable person, who would be the employee, the employer, or an arbiter, would come to the conclusion that the issue has a relationship to safety. In straightforward language that’s what we’re attempting to accomplish by deleting potential but leaving the word safety.”
Id. at 8:57 (emphasis added). Later, in response to a question by Representative Vicki Berger as to what he meant by the board possibly misinterpreting the word “safety,” DeLashmutt clarified:
“ [A] 111 was trying to portray to you is that we don’t want to have silence on the word ‘potential’ being left out so that anybody believes that really the intent of the legislature was that we go back to an after the fact standard, that you have to have an accident, an occurrence that actually happens, that injures somebody before you’re required to bring that issue up. And that’s why I was trying to think in my mind, in plain language, the reasonable * * * person kind of standard. And included in that, obviously I believe the employers and the employees and potentially, at the final end, the arbitrator, would use the standard as a reasonable person and they’re the final judge of that.”
Thus, from that discussion, it is apparent that the legislature wanted to ensure that the amendments not be understood, on one end of the spectrum, to require an after-the-fact assessment before something would be considered a “safety issue” or, on the other end, to include matters that involved merely “potential” safety issues. Instead the legislature sought to draw a middle ground, expressing its intention that employers be required to bargain over proposals that were reasonably understood to involve safety issues.
In sum, we agree with the board’s interpretation of the statute, but only to a point. Rather, we conclude, from the text, context, and legislative history of the statute that a matter involves a safety issue for purposes of ORS 243.650(7)(f) if it would reasonably be understood, on its face, to directly address a matter related to the on-the-job safety of employees.
We evaluate the association’s proposal according to that standard. The association contends that, because the proposal “specifically references training approved by the state agency charged with conducting public safety training” it is apparent, from its face, that the proposal directly addresses a matter of on-the-job safety.
In a final assignment of error, the association argues, in the alternative, that, even if bargaining the proposal is not per se mandatory under ORS 243.650(7)(f), it is
In summary, we conclude that the association’s proposal that sworn corrections employees “shall receive a minimum of forty (40) hours of approved training per year, of which at least twenty (20) hours shall be DPSST-approved training” was not a “safety issue” subject to mandatory bargaining under ORS 243.650(7)(f). Further, we reject the association’s argument that bargaining over the proposal was mandatory by application of ORS 243.650(7)(a) and (c). Thus, we agree with the board that the county did not violate its duty to bargain in good faith when it refused to bargain over the proposal and the association did violate its good-faith bargaining duty by submitting that proposal as part of its final offer of settlement. Accordingly, we affirm.
Affirmed.
Although ORS 243.672 has been amended since the events that gave rise to this case, see Or Laws 2011, ch 593, § 2, those amendments do not affect our analysis. Therefore, we refer to the current version of the statute in this opinion.
“DPSST” is an acronym for the Oregon Department of Safety Standards and Training.
The association raises additional assignments of error that, as explained later in this opinion, 257 Or App at 728 n 16, 734-35, 735 n 26, 735-37, we also reject.
ORS 243.712(2)(b) provides, in part, that,”[w]ithin seven days of the declaration of impasse, each party shall submit to the mediator in writing the final offer of the party!.]”
ORS 243.736(e) provides that it is unlawful for, among others, a “[gluard at a correctional institution or mental hospital” “to strike or recognize a picket line of a labor organization while in the performance of official duties.”
ORS 243.650(7)(g) provides, in part, that ‘“employment relations’ excludes * * * assignment of duties.”
Gamson also contended that the board’s interpretation of the statute was inconsistent with its plain meaning and the legislature’s expressed intention to “expand the scope of safety issues that are mandatory for bargaining.”
Nor does it necessarily follow from the dictionary definitions of the relevant terms. “Safety” is defined to mean, in this context, “the condition of being safe : freedom from exposure to danger : exemption from hurt, injury, or loss.” Webster’s Third New Int’l Dictionary 1998 (unabridged ed 2002). “Issue,” as pertinent here, could mean, among other things, “a point in question of law or fact,” “a matter that is in dispute between two or more parties or that is to be disputed by the parties : a point of debate or controversy” or “a matter not yet finally settled and on the settlement of which something else depends : a pregnant unsettled matter : vital question <burning ~ of the day>,” or “a controverted subject or topic <the ~ of desegregations-.” Id. at 1201.
ORS 243.650(7)(a) provides:
“‘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.”
(Emphasis added.). Until 1995, that was the full extent of the definition of “employment relations.” See ORS 243.650(7) (1993).
That balancing test is now codified at ORS 243.650(7)(c), which provides:
“After June 6,1995, ‘employment relations’ does not include subjects that 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.”
See Eugene Police Employees’ Assoc. v. City of Eugene, 157 Or App 341, 354, 972 P2d 1198 (1998), rev den, 328 Or 418 (1999) (“The only tenable understanding of subsection (7)(e) is that it codifies the balancing test that ERB has used to determine whether a subject that is not listed in subsection 7(a) is a condition of employment.”).
Compare paragraph (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.” (Emphasis added.)), with paragraph (d) (“‘Employment relations’ does not include subjects that have an insubstantial or de minimis effect on public employee wages, hours, and other terms and conditions of employment.” (Emphasis added.)). To further illustrate, subsection (e) provides, “For school district bargaining, ‘employment relations’ excludes 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, requirements for expressing milk under ORS 653.077, and any other subject proposed that is permissive under paragraphs (b), (c) and (d) of this subsection..” (Emphasis added.)
As to context, the word “subject” was also absent in the pre-2007 iteration of subsection (7)(f), and nothing in the board’s interpretation and application of that formulation indicates that “subject” is not the proper referent.
Specifically, the board concluded:
“Regardless of whether the subject of a proposal is determined to be staffing or safety or workload, we must decide its bargaining status based on whether the evidence establishes that the proposal will have a direct and substantial effect on employee safety, or what effect, if any, it will have on employee duties. Under the new statutory scheme, when the subject of a proposal concerns safety, staffing, or workload, we are required to determine its effect in order to determine its bargaining status.”
Id. at 629-30. We are not persuaded that the board’s use of the phrase, “concerns safety,” in the final sentence of that explanation supports the association’s broad interpretation of “safety issue.” As discussed, because the evidence did not satisfy
The board ultimately disagreed, however, with the county’s argument that the policy was not a mandatory subject of bargaining, because, as the board found, the policy also had a “direct and substantial effect” on on-the-job safety. 19 PECBR at 426-27.
In SEIU, the board did not expressly address the initial question, viz., whether the proposal involved a safety issue; however, as in Roseburg, given its ultimate conclusion, it was not necessary for it to do so.
That conclusion also disposes of the association’s second assignment of error, in which it contends that the board improperly deviated from prior agency practice.
The association also points us to language in Governor Kulongoski’s statement signing the bill into law. We do not see how that provides evidence of the legislature’s intentions in passing the bill, and the association does not explain how it could; accordingly, we do not discuss it further.
Other examples included concerns about the maintenance of laptops in vehicles of state troopers or the maintenance of respirators for fire fighters. We agree with the association that this, and the other legislative history presented by amici, discussed below, indicates that the legislature intended for subsection (7)(f) to have a broad reach. As the legislative history also demonstrates, however, that reach is not without limits.
They also argue that the legislature was well aware of the increased need for bargaining over workplace safety issues and that the board’s decision, if upheld, will have a negative effect on the safety of Oregon public employees and undermine the policy interests served by PECBA.
SB 400 was the subject of significant debate in both houses of the legislature and was amended several times before it was finally enacted.
Although the bill was further amended by the House Committee on Business and Labor on two later occasions, that change remained in the final, enacted version of the bill. Again, the version that passed the House and was ultimately enacted into law amended subsection (7)(f) to read as follows:
“For employee bargaining involving employees covered by ORS 243.736, ‘employment relations’ includes safety issues that have an impact on the on-the-job safety of the employees or staffing levels that have a significant impact on the on-the-job safety of the employees.”
See SB 400 C-Engrossed, May 2, 2007; Or Laws 2007, ch 141, § la.
This “reasonable person” standard was reiterated in later discussions of the bill. See Audio Recording, House Committee on Business and Labor, SB 400-B Engrossed, Apr 27,2007, at 1:58 (statement of Brian DeLashmutt, indicating that employees or employee groups would have the ability to talk about safety issues based upon a reasonable person standard), http://www.leg.state.or.us/listn/archive/ archive.2007s/HBL-200704271501.ram (accessed July 25, 2013); Audio Recording, House Floor Debate, SB 400-C Engrossed, May 8, 2007, at 5:14 (statement of Rep Schaufler, noting that “this language will still apply the reasonable person standard as it relates to a discussion of safety and staffing levels”), http://www.leg. state.or.us/listn/arehive/archive.2007s/HC>USE-200705080829.ram (accessed July 25, 2013).
There also is nothing in the context of the board’s prior case law to support that additional requirement.
The association also suggests that training, in and of itself, is always a “safety issue” for purposes of ORS 243.650(7)(f); we reject that contention without further comment.
Moreover, the association ignores the fact that the “DPSST-approved training” encompasses only half of the proposed training hours in any event.
In that regard, we reject the association’s contention, in its fourth assignment of error, that the board’s finding that DPSST provides a “wide variety of safety and non-safety related training” is not supported by substantial evidence. The association’s challenge to another of the board’s findings — that “county corrections officers do not need an additional 40 hours of training to do their jobs competently and safely” (emphasis added) — is simply inconsequential in light of our analysis; therefore we reject the association’s fourth assignment of error in its entirety.
ORS 243.650(7)(a) provides:
‘“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?
(Emphasis added.)
ORS 243.650(7)(c) provides:
“After June 6,1995, ‘employment relations’ does not include subjects that 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.”
ORS 243.650(7)(g) provides that, among other things, “assignment of duties” is excluded from the definition of “employment relations.” That provision is quoted in full at 257 Or App 722.
The board explained:
“Although the proposal apparently allows the County to choose and schedule the training employees will receive, the proposal requires that the County remove bargaining unit members from their regular duties and assign them to another duty — training—for 40 hours per year. Accordingly, the proposal concerns assignment because it dictates the type of work management can require employees to perform.”
(Citation omitted.)