Am. Fed'n of State Cnty. & Mun. Emps. v. City of Leb.

• Decision Date: 02 February 2017
• Docket Number: CA A152059,No. 5,SC S062750,ERB UP1411,5
• Citation: 360 Or 809
• Court: Oregon Supreme Court
• Parties: AMERICAN FEDERATION OF STATE COUNTY AND MUNICIPAL EMPLOYEES, COUNCIL 75, LOCAL 2043, Petitioner on Review, v. CITY OF LEBANON, Respondent on Review.

360 Or 809

AMERICAN FEDERATION OFSTATE COUNTY AND MUNICIPAL EMPLOYEES,COUNCIL 75, LOCAL 2043, Petitioner on Review, v. CITY OF LEBANON, Respondent on Review.

No. 5

ERB UP1411

CA A152059

SC S062750

SUPREME COURT OF THE STATE OF OREGON

Argued and submitted June 16, 2015

February 2, 2017

En Banc

On review from the Court of Appeals.^*

Giles Gibson, Legal Counsel, Oregon AFSCME, Council 75, Portland, argued the cause and filed the brief for petitioner on review.

John E. Kennedy, The Morely Thomas Law Firm, Lebanon, argued the cause and filed the brief for respondent on review.

Elizabeth A. Joffe, McKanna Bishop Joffe, LLP, Portland, filed the brief on behalf of amici curiae Oregon AFL-CIO, Oregon Education Association, Oregon Public Employees Union, Oregon State Firefighters Council, and Service Employees International Union Local 503.

BALDWIN, J.

The decision of the Court of Appeals is reversed. The case is remanded to the Employment Relations Board for further proceedings.

Landau, J., dissented and filed an opinion, in which Balmer, C.J., and Brewer, J., joined.

BALDWIN, J.

This case requires us to consider whether the City of Lebanon (city) committed an unfair labor practice under Oregon's Public Employee Collective Bargaining Act (PECBA), ORS 243.650 - 243.782, when one of its council members, Campbell, wrote a letter to a local newspaper disparaging labor unions in general and calling for city employees to decertify their existing union. The Employment Relations Board (ERB or board) concluded that the city had engaged in an unfair labor practice based on Campbell's conduct. The Court of Appeals reversed, concluding that the city was not liable because Campbell had not acted as a "public employer or its designated representative" within the meaning of PECBA. AFSCME Council 75 v. City of Lebanon, 265 Or App 288, 336 P3d 519 (2014). For the reasons explained below, we reverse the decision of the Court of Appeals, and remand to ERB for further proceedings.

I. BACKGROUND

The undisputed facts, as summarized by the Court of Appeals, are:

"According to the City of Lebanon Charter of 2004, the city is 'a municipal corporation' that includes 'all territory encompassed by its boundaries ***.' The city is also a public employer as defined by ORS 243.650(20). All powers of the city are vested in the city council, which is composed of a mayor and six councilors; the council delegates much of that power to the city administrator (manager), who is the 'administrative head of the government of the City.' Specifically, the city administrator (manager) is 'responsible for the daily operation of the City's departments and implementation of Council policy.'

"The council is responsible for holding regular meetings, adopting 'rules for the government of its members and proceedings[,]' and appointing certain city officers. The council is also responsible for passing ordinances and voting on questions before it, including whether to approve 'a bond of a City officer or a bond for a license, contract or proposal[.]' Except as the city charter provides, 'the concurrence of a majority of the members of the Council present and voting at a Council meeting shall be necessary to decide any question before the Council.' Further, '[n]o action by the council shall have legal effect unless the motion for the action and the vote by which it is disposed of take[] place at proceedings open to the public.'

"Campbell was appointed as a city councilor in 2010 and was a member of the budget committee. As a city councilor, she would 'be asked to vote and ratify any collective bargaining agreement with the Union that [was] negotiated by the City negotiation team.' However, Campbell was not a member of the city's labor negotiation team, and, [o]ver the last 10 years, no city councilor [had] been a member of the City's labor negotiation team.

"At the time of the events giving rise to this case, the city was experiencing a budget crisis, and the city and the union were parties to a collective bargaining agreement that was set to expire. The president of the union, along with the president of another union that represents city employees, co-authored a letter to the city. In that letter, the union presidents stated that the city should consider eliminating the positions of assistant city manager/human resources manager and human resources assistant before cutting essential services or laying off union workers.

"Shortly thereafter, Campbell sent a letter to the Lebanon Express, a local newspaper. The letter was addressed to 'All Citizens of Lebanon[.]' Campbell began the letter by stating:

"'I would like to inform all of you about some elements of my personal background before I get to the basis of my letter. Further I would like to clarify this letter is being written by me as an individual and not a reflection of a majority of the City Council, the City or my employer.'

"Campbell then described her and her family's involvement with unions, defended the city's human resources positions, and criticized unions in general. Campbell concluded the letter by stating:

"'To employees of the City and other organizations imprisoned by the dictatorship of a union as a private citizen I advise you to seek out the Department of Labor website where you can find instructions on how to de-certify your union captors. As an individual and former union member I believe you can put your union dues to better use in your own household budget and in supporting causes that truly express your own values.' "'Sincerely,'

"'Margaret A. Campbell'

"'City Councilor'

"'Ward II'

"The newspaper published an article that summarized Campbell's letter. That article noted that the letter could be found on the newspaper's website and stated that Campbell planned to read the letter at a city council meeting. The parties later stipulated that Campbell did not read the letter at the meeting."

City of Lebanon, 265 Or App at 289-91 (alterations in orginal).

As a result of Campbell's conduct, AFSCME Council 75 (union) filed an unfair labor practice complaint against the city, alleging that Campbell's comments were made in her official capacity as a council member. The parties submitted the case on stipulated facts directly to ERB. The board concluded that the city violated PECBA when Campbell, in her letter, advised city employees "to seek out the Department of Labor website where you can find instructions on how to de-certify your union captors."¹ The board issued a cease-and-desist order and required the city to post an official notice of its wrongdoing. See ORS 243.676 (authorizing such remedy when unfair labor practice established). The board reasoned that a "public employer [under the PECBA] is liable for the actions of its officials" and that, because Campbell "spoke as the City's representative, liability for her remarks is ascribed to the City." The board observed that Campbell was "a member of a six-person Council in which the City Charter vests all powers. The Council is the public employer[,] and Campbell shares that status because she is a member of the Council." (Emphasis in original.) The board further noted that Campbell, "as a member of the council that is responsible for formulating all City policies and overseeing all City operations, is a public employer."²

In the Court of Appeals, the city assigned error to ERB's conclusion that Campbell acted as a public employer or its designated representative under PECBA when she submitted her letter to the newspaper.³ The Court of Appeals agreed with the city and reversed. The court concluded that Campbell was not the city's "designated representative" within the meaning of PECBA, because the record lacked any evidence that the city had "specifically designated" Campbell to act as its representative. City of Lebanon, 265 Or App at 295-96. Further, the court concluded that Campbell could not be a "public employer" under PECBA, because she was not acting as an agent when she submitted her letter to the local newspaper:

"The union raises an interesting question by asserting that we should apply agency principles in this case: whether a public employer can be liable for an unfair labor practice committed by an agent other than its designated representative. However, we need not resolve that question because, even assuming without deciding that it is appropriate to apply agency principles in this context, we conclude that Campbell was not acting as the city's agent when she wrote and sent her letter."

Id. at 297 (footnote omitted).

We accepted the union's petition for review to determine whether Campbell was either a "public employer" or a "designated representative" of the city under PECBA when she submitted her letter to the newspaper. On review, the city does not challenge ERB's conclusion that the portion of Campbell's letter urging city employees to decertify their union would constitute an unfair labor practice under ORS 243.672(1)(a) and (b) if committed by "a public employer or its designated representative." The only issue for us to resolve, therefore, is whether the city may be held liable for Campbell's actions because she was either a "public employer" or its "designated representative" within the meaning of PECBA.

II. ANALYSIS

A. Purposes of PECBA and the NLRA

We begin our analysis by briefly examining the legislature's purpose in enacting PECBA. This court has observed that, by enacting PECBA, first passed in 1973, "the legislature has provided a comprehensive statutory scheme authorizing and regulating collective bargaining between municipal and other public employers and employees, administered by ERB." City of Roseburg v. Roseburg City Firefighters, 292 Or 266, 268, 639 P2d 90 (1981). This court noted that PECBA was designed to improve relations between public employers and their employees:

"*** PECBA is intended to protect [public employees'] economic welfare during their employment and to provide a means for them to affect certain negotiable working

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