Wasco County v. American Federation of State, County and Municipal Employees, Local No. 2752

• Citation: 569 P.2d 15,30 Or.App. 863
• Parties: , 96 L.R.R.M. (BNA) 3167 WASCO COUNTY, Petitioner, v. AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, LOCAL NO. 2752, a Labor Organization, and Employment Relations Board, State of Oregon, Respondents.
• Decision Date: 21 November 1977
• Court: Court of Appeals of Oregon

Page 15

569 P.2d 15

30 Or.App. 863, 96 L.R.R.M. (BNA) 3167

WASCO COUNTY, Petitioner, v. AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL

EMPLOYEES, LOCAL NO. 2752, a Labor Organization,

and Employment Relations Board, State of

Oregon, Respondents.

Court of Appeals of Oregon.

Argued and Submitted May 3, 1977.

Decided Sept. 6, 1977.

On Petition for Attorneys Fees Nov. 21, 1977.

See 571 P.2d 549.

Larry K. Amburgey, Portland, argued the cause for petitioner. With him on the brief were Bullard, Korshoj & Smith and Jim D. Korshoj, Portland.

Henry H. Drummonds, Eugene, argued the cause for respondent American Federation of State, County and Municipal Employees, Local No. 2752, a labor organization. With him on the brief was Kulongoski, Heid, Durham & Drummonds, Eugene.

No appearance for respondent Employment Relations Board, State of Oregon.

Before SCHWAB, C. J., and LEE and TANZER, JJ.

TANZER, Judge.

Petitioner Wasco County seeks review of a cease and desist order of the Employment Relations Board (ERB) which sustained an unfair labor practice complaint and held that the County had violated its statutory duty "to bargain collectively in good faith." ¹

The County and Local 2752 of the American Federation of State, County and Municipal Employees were parties to a collective bargaining agreement which expired on June 11, 1975. In December of 1974, the Union contacted the County to begin negotiations on a successor contract. Thereafter, representatives of the parties met on several occasions, but negotiations were unsuccessful. When it became evident that the parties would be unable to reach an agreement by themselves, ERB assigned a mediator to facilitate the resolution of their differences. ² On June 10, 1975, after participating in three negotiation sessions, the mediator concluded that the parties were deadlocked. The primary obstacle to agreement was the difference between the 26 percent wage increase sought by the Union and the 8 percent increase offered by the County. With the parties' assent, the mediator reported the deadlock to ERB on June 11, 1975. On the same day, the parties were formally notified that the fact-finding process had been initiated and that they would have five days in which to jointly select a fact finder. ³

On June 13, 1975, the Union received a letter from the County expressing both its disappointment that negotiations had been unsuccessful and its hope that "a way might be found to bring a peaceful and mutually satisfactory settlement." The letter also stated that the County was obligated to formulate a budget for the fiscal year beginning July 1, 1975, ⁴ and that, despite the absence of a labor contract, the County had decided to include in that budget an 8 percent wage increase; an amount previously offered to and rejected by the Union. The wage increase was to apply to all personnel in the bargaining unit and it was to become effective as of July 1, 1975.

The Union did not object to this modification of the wage scale until, on July 25, 1975, after the selection of a fact finder but before the commencement of the fact-finding hearing, it filed an unfair labor practice complaint. The complaint alleged that the County's unilateral implementation of its last wage offer was calculated to disrupt and stall negotiations and that by this action the County had refused to bargain in good faith.

Following a hearing, ERB concluded that the County's implementation of a wage increase prior to conclusion of the fact-finding process was per se an unfair labor practice. Accordingly, ERB ordered the County to "cease and desist from failing to bargain in good faith." However, ERB refused to direct a rollback of wages because to do so "would bring absurd results." ERB's disapproval of the above-described action by the County was based upon the following conclusions of law:

" * * * ORS 243.712 provides that when the parties do not reach agreement the Board shall assign a mediator. If the dispute is not resolved through mediation the parties jointly or individually may petition the Board to initiate factfinding or the Board may initiate factfinding. Factfinding was initiated in this case by the Board's State Conciliator. Throughout mediation and factfinding acts are in progress which might change the positions of the parties. ORS 243.722(3) provides that not more than five working days after the factfinder's findings and recommendations have been sent, the parties shall notify each other and the Board whether or not they accept the recommendations of the factfinder. If one or both of the parties notifies the Board that it does not accept the recommendations of the factfinder, at that point the parties are at impasse under Oregon public sector law.

"When an impasse is reached under the National Labor Relations Act certain unilateral circumscribed self-help action may be initiated by either of the parties. For example, the employer is free to make unilateral changes in working conditions consistent with his rejected offers to the union and the union is free to withhold services. This is not true under Oregon's public sector collective bargaining law.

"Oregon law gives public employes only a limited right to strike. They may strike only after they have been through mediation and factfinding, the factfinder's recommendations have been made public by the Board, thirty days have elapsed since the Board has made public the factfinder's findings and recommendations and the exclusive representative has given ten days notice of intent to strike. We must assume that the legislature intended that there be a balancing of the self-help measures available to the parties. Since the union cannot strike until it has been through the steps listed, it would follow that an employer could not initiate self-help measures until the steps listed had been completed. Thus, the employer could not make unilateral changes in working conditions consistent with the rejected offers to the union until the steps set out in ORS 243.712, 243.722 and 243.726(2) had been completed.

"For these reasons, we conclude that Wasco County committed an unfair labor practice within the meaning of ORS 243.672(1)(e) when it unilaterally implemented an 8 percent wage increase on July 1, 1975." (Emphasis supplied.)

This court has consistently held that it tends to defer to expertise-based policy formulations by administrative agencies, absent evidence of a contrary legislative intent. ⁵ This rule of deference to agency expertise is particularly applicable to ERB because of the general nature of the statutes which it administers. For example, in Fairview Hospital v. Moore, 28 Or.App. 637, 560 P.2d 671 (1977), the question was what constitutes "misconduct" within the meaning of the Merit System Law, ORS 240.555(1); and in Sutherlin Ed. Assn. v. Sch. Dist., 25 Or.App. 85, 548 P.2d 204 (1976), and Springfield Ed. Assn. v. Sch. Dist., 24 Or.App. 751, 547 P.2d 647, 25 Or.App. 407, 549 P.2d 1141, rev. den. (1976), the question was what constitutes "conditions of employment" under the Public Employes' Collective Bargaining Law, ORS 243.650(7). In these cases we permitted ERB to flesh out amorphous statutory terms in a manner which, in ERB's judgment, would best effectuate the legislative purpose.

Resolution of this case depends upon the meaning given to the term "duty to bargain in good faith." The term is used throughout ORS chapter 243 but the legislature has not defined it. ⁶ Under these circumstances, ERB is free to define the term in the way which it rationally concludes would best advance the purposes of the Public Employes' Collective Bargaining Law. It could elect to do so either by promulgating rules of general application or by proceeding on a case-by-case basis to determine whether specified conduct constitutes a breach of that duty.

Thus, ERB might elect to adopt an absolute rule that a public employer's unilateral implementation of a wage increase prior to exhaustion of the fact-finding process is never a violation of the duty because it reflects a partial agreement and serves to narrow the issues of a labor dispute, cf. National Labor Rel. Bd. v. Bradley Washfountain Co., 192 F.2d 144 (7th Cir. 1951). Conversely, ERB might conclude that collective bargaining is best advanced by an opposite rule freezing the preexhaustion situation. It may also adopt a middle approach barring partial compliance under certain conditions. In any event, if ERB rationally found, as a matter of policy, that the rule which it adopted advanced the purposes of the Public Employes' Collective Bargaining Law, we would tend to defer to it, absent evidence of contrary legislative intent. Sun Ray Dairy v. OLCC, 16 Or.App. 63, 517 P.2d 289 (1973).

Alternatively, ERB might conclude on a case-by-case fact analysis of the intent or effect of the employer's actions that a violation of the duty to bargain in good faith either was or was not established. If ERB proceeded in this manner, we would...