City of Roseburg v. Roseburg City Firefighters, Local No. 1489, C-28-80

CourtSupreme Court of Oregon
Citation292 Or. 266,639 P.2d 90
Docket NumberNo. C-28-80,C-28-80
Parties, 111 L.R.R.M. (BNA) 2932 CITY OF ROSEBURG and George Stubbert, City Manager, Petitioners on Review, v. ROSEBURG CITY FIREFIGHTERS, LOCAL NO. 1489 and State of Oregon Employment Relations Board, Respondents on Review. ; CA 18932; SC 27638.
Decision Date29 December 1981

Page 90

639 P.2d 90
292 Or. 266, 111 L.R.R.M. (BNA) 2932
CITY OF ROSEBURG and George Stubbert, City Manager,
Petitioners on Review,
Oregon Employment Relations Board, Respondents on Review.
No. C-28-80; CA 18932; SC 27638.
Supreme Court of Oregon, In Banc.
Argued and Submitted May 5, 1981.
Decided Dec. 29, 1981.

Page 91

[292 Or. 267-A] Timothy J. Sercombe, Eugene, argued the cause for petitioners. With him on the petition were Stanton F. Long, and Johnson, Harrang, Swanson & Long, Eugene, and David A. Aamodt, City Atty., Roseburg. On the brief were Stanton F. Long, Timothy J. Sercombe, Orval Etter, A. Keith Martin, and Johnson, Harrang, Swanson & Long, Eugene.

Gary K. Jensen, Eugene, argued the cause for respondent Roseburg City Firefighters, Local No. 1489. With him on the brief was William N. Kent, Eugene.

James Mountain, Salem, argued the cause for respondent Employment Relations Board. On the brief were James M. Brown, Atty. Gen., John R. McCulloch, Sol. Gen., William F. Gary, Deputy Sol. Gen., and William F. Hoelscher, Asst. Atty. Gen., Salem.

Henry H. Drummonds of Kulongoski, Heid, Durham & Drummonds, Eugene, filed a brief as amicus curiae for American Federation of State, County and Municipal Employees, AFL-CIO, Oregon Council 75, and the Oregon Ed. Ass'n.

James M. Mattis, Salem, filed a brief as amicus curiae for League of Oregon Cities.

[292 Or. 268] TANZER, Justice.

This is judicial review of an order of the Employment Relations Board (ERB) finding the City of Roseburg and its city manager (Roseburg), a public employer, to have engaged in an unfair labor practice contrary to ORS 243.672(1)(e) by its refusal to bargain collectively with the exclusive representative of its employee firemen (Local 1489) and ordering Roseburg to cease and desist from its refusal. Roseburg sought judicial review and the Court of Appeals affirmed, citing our decision in LaGrande/Astoria v. PERB, 281 Or. 137, 576 P.2d 1204, aff'd on rehearing 284 Or. 173, 586 P.2d 765 (1978), and its own decision in Medford Firefighters Assn. v. City of Medford, 40 Or.App. 519, 595 P.2d 1268, rev. den. 287 Or. 507 (1979). We allowed review

Page 92

to examine the applicability of Article XI, section 2, and Article IV, section 1(5), of the Oregon Constitution, the so-called "home rule" amendments, to conflicting state and municipal legislation regulating public employment collective bargaining. Those amendments provide:

" * * * The Legislative Assembly shall not enact, amend or repeal any charter or act of incorporation for any municipality, city or town. The legal voters of every city and town are hereby granted power to enact and amend their municipal charter, subject to the Constitution and criminal laws of the State of Oregon * * *." Or.Const., Art. XI, § 2.

"The initiative and referendum powers reserved to the people by subsections (2) and (3) of this section are further reserved to the qualified voters of each municipality and district as to all local, special and municipal legislation of every character in or for their municipality or district. The manner of exercising those powers shall be provided by general laws, but cities may provide the manner of exercising those powers as to their municipal legislation. * * * " Or.Const., Art. IV, § 1(5).

By enactment of ORS 243.650 through 243.782, commonly referred to as the Public Employe Collective Bargaining Act (PECBA), the legislature has provided a comprehensive statutory scheme authorizing and regulating collective bargaining between municipal and other public employers and employees, administered by ERB. Of particular significance in this case, firemen and certain other public safety employees are forbidden from striking, [292 Or. 269] ORS 243.736, and issues which are unresolved by bargaining and mediation are subject to compulsory binding arbitration administered by ERB. ORS 243.742.

Roseburg adopted its Ordinance No. 2074 which also purports to regulate its municipal employment relations. It is generally similar to the state's PECBA, but there are differences both before and after impasse. Rather than set out both PECBA and the ordinance entirely, we quote the summary description of the differences as stated in ERB's order:

" * * * This ordinance purports to 'incorporate and follow' the provisions of the PECBA, 'with the exception of those areas which are believed to be strictly of local concern for the City of Roseburg.'

"In its pre-impasse collective bargaining provisions, the ordinance does bear a general resemblance to corresponding pre-impasse provisions of the PECBA. In fact, many of the ordinance's pre-impasse provisions are the same as their PECBA counterparts, e.g.: the definitions of 'collective bargaining,' 'appropriate unit,' 'confidential employee,' 'supervisory employee,' 'labor organization,' 'mediation,' 'public employee,' and 'strike,' the section 'Rights of City Employees,' and the section 'Certification and Recognition.' There are, however, some notable differences, pre-impasse, between the ordinance and the PECBA, including a retained management rights section, a provision that provides the City with the discretion 'to voluntarily confer with City employees in the process of developing policies to effectuate or implement' retained management rights, a partially different unfair labor practice section, and a section which sets some specific times for the commencement and conclusion of negotiations.

"With the exception of mediation, the post-impasse provisions of the ordinance differ significantly from their PECBA counterparts. The ordinance's factfinding procedure dictates the use of a three-member Board of Factfinders to select 'the most reasonable' of the final offers presented by the parties. In making its 'final offer' recommendation, the Board of Factfinders must consider factors which differ from those to be considered by factfinders operating under the Rules of this Board. Although the Board of Factfinders' recommendation is not binding on the 'loser,' the 'loser' will be deemed to have accepted the recommendation if it has not formally rejected it within five days after its issuance.

[292 Or. 270]

Page 93

"If the recommendation of the Board of Factfinders is rejected, the two (2) 'final offers' are submitted to the City residents whose vote is final and binding upon the parties. Firefighters are prohibited from striking. Enforcement of the ordinance is obtained by resort to suits in equity brought in Circuit Court or actions filed in the Municipal Court of the City of Roseburg."

From the inception of the bargaining process and consistently throughout it, Roseburg insisted that it was bargaining "under" its ordinance rather than under PECBA. The parties did not reach agreement and mediation was unsuccessful. Local 1489 requested initiation of factfinding by ERB under ORS 243.722. Roseburg instead initiated factfinding under its ordinances and requested ERB to defer to the municipal procedures. At that point, Local 1489 initiated this proceeding, complaining that Roseburg's refusal to bargain in good faith under PECBA was an unfair labor practice.

ERB reasoned that state law was controlling, that Roseburg was subject to its requirements, that the ordinance affected the bargaining process, and that Roseburg's insistence on bargaining under the ordinance instead of the statute was a refusal to bargain collectively in good faith.


The most substantial difference between PECBA and the ordinance relates to post-impasse procedures: PECBA requires arbitration; the ordinance requires submission of the last offers of each party to the voters of Roseburg. This proceeding was brought before post-impasse procedures were activated. Therefore, the threshold question is whether the post-impasse difference in the state and municipal legislation has yet ripened into a material issue.

Roseburg contended before ERB that the post-impasse difference was not material because the collective bargaining obligations of the city under the pre-impasse procedures of the ordinance and of the statute were essentially similar. ERB rejected that contention. It found that the differences as to both pre- and post-impasse procedures affected Roseburg's conduct during bargaining. That determination is subject to review under ORS chapter 183, the [292 Or. 271] Administrative Procedure Act. ORS 183.482(7) requires that

" * * * the court shall not substitute its judgment for that of the agency as to any issue of fact or agency discretion. * * * "

Thus we review for the legal correctness of any factfinding, not for whether we agree with it. This is usually expressed in terms of substantial evidence, i.e., we uphold any finding supported by substantial evidence. ORS 183.482(8) (c) provides:

"The court shall set aside or remand the order if it finds that the order is not supported by substantial evidence in the record."

The substantial evidence rule is not entirely dispositive in reviewing findings which embody inferences. An inference has two parts: a primary fact plus a deduction. The evidence directly establishes only the truth of the primary fact or facts from which an inference may be derived therefrom. Rational bases may exist for more than one inference to be drawn from the same primary fact, and the factfinder (i.e., the agency) has the task to decide which one to draw. The court does not substitute its judgment as to which inference should be drawn, but it must review for the existence of a rationale. The rationale is reviewed for soundness, not for conformity to judicial preference. Judicial review of an inference is thus in two stages: (1) whether the basic fact or facts are supported by substantial evidence, and (2) whether there is a basis in reason connecting the inference to the facts from which it is derived. It is a twofold review for substantial evidence and, in a...

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