Federation of Oregon Parole and Probation Officers v. State, Dept. of Corrections, UP-51-91
Decision Date | 18 April 1995 |
Docket Number | UP-51-91 |
Citation | 132 Or.App. 406,888 P.2d 597 |
Parties | FEDERATION OF OREGON PAROLE AND PROBATION OFFICERS, Petitioner, v. STATE of Oregon, DEPARTMENT OF CORRECTIONS and County of Multnomah, Respondents. ; CA A81631. |
Court | Oregon Court of Appeals |
Daryl S. Garrettson, Eugene, argued the cause, for petitioner. With him on the brief was Hoag, Vick, Tarantino & Garrettson.
Richard D. Wasserman, Asst. Atty. Gen., argued the cause, for respondent State. With him on the brief were Theodore R. Kulongoski, Atty. Gen., and Virginia L. Linder, Sol. Gen.
Before DEITS, P.J., and RIGGS and HASELTON, JJ.
The Federation of Oregon Parole and Probation Officers (FOPPO) seeks review of an Employment Relations Board (ERB) order. The order determines that the state did not commit an unfair labor practice by refusing to bargain with FOPPO regarding the impacts of an intergovernmental agreement to transfer certain corrections officers from state employment to employment by Multnomah County. We reverse and remand.
This is the second time this case has been before us. In Federation of Oregon Parole v. Dept. of Corrections, 119 Or.App. 355, 357-58, 850 P.2d 1154 (1993) (FOPPO I ), we described the operative facts:
On review of that order, we concluded that, because ORS 423.550 gives the state no real discretion to resist a county's bid to transfer functions, the state had no duty to bargain over the transfer decision itself. We held, however, that ERB's order did not adequately explain its reasons for dismissing FOPPO's complaint with respect to its demand to bargain over the impact or effects of the transfer:
Federation of Oregon Parole v. Dept. of Corrections, supra, 119 Or App at 360 .
We remanded the order to ERB for reconsideration of the impact bargaining issue.
In its order after remand, ERB reasserted its original conclusion, that the state's refusal to bargain with FOPPO was not an unfair labor practice under ORS 243.672(1)(e), and attempted to explain its reasoning more fully. In making its determination, ERB focused primarily on whether the state made a unilateral change in employment conditions. Under the "unilateral change" doctrine
Salem Police Employees Union v. City of Salem, 308 Or. 383, 393 n. 7, 781 P.2d 335 (1989).
Such changes constitute a per se violation of the statutory duty to bargain in good faith. Wasco County v. AFSCME, 46 Or.App. 859, 861, 613 P.2d 1067 (1980).
Applying the per se rule, ERB reasoned that, because the state did not initiate the transfer decision, it did not unilaterally change employment conditions and could not be held liable for refusing to bargain over the impacts arising from that decision. FOPPO takes issue with that conclusion, arguing that even if the decision to transfer was a fait accompli, the state had the ability to negotiate a transfer agreement that would mitigate or eliminate the harmful impacts of the transfer on the affected employees. We review ERB's decision for errors of law, ORS 183.482(8)(a), and agree with FOPPO.
As we held in FOPPO I, the state could not reject the county's decision to assume responsibility for felony parole and probation services. See ORS 423.550(1). That decision is left solely to the discretion of the county under ORS 423.550(2)(b). However, as required by statute, the state and county entered into an intergovernmental agreement that provided, inter alia, that certain employment conditions, such as wages and benefits, would remain constant. Some elements of the intergovernmental agreement were prescribed by statute:
Federation of Oregon Parole v. Dept. of Corrections, supra, 119 Or.App. at 359, 850 P.2d 1154.
However, the statutory scheme that protects the rights of transferring employees does not preclude the inclusion of additional terms or conditions in intergovernmental transfer agreements:
"The rights that the statutes require to be extended to transferred employees are not necessarily exhaustive of the rights that can be conferred on them, if other sources of rights consistent with the statutes exist." Gish v. Douglas County, 109 Or.App. 84, 89, 817 P.2d 1341 (1991). (Emphasis in original.)
Although the state was ultimately required to accept the intergovernmental agreement, it was not devoid of control over the terms under which its employees would transfer from state to county employment. In the course of negotiations with the county, the state had some influence over the content of the intergovernmental agreement. In fact, the state purported to have a "strong interest" in protecting the interests of its employees, and indicated that it would not approve the transfer plan until the county responded to specific issues. Yet, preparation of that agreement occurred without any input from the employees subject to transfer. Collective bargaining would have alerted the state to its employees' concerns about the effects of the impending transfer. 1 Although FOPPO could not have been a party to the intergovernmental agreement, it was entitled to present to the state its members' needs and concerns.
The state acted unilaterally by forging an agreement with the county that outlined the terms of the employee transfer and ultimately affected employment conditions. 2 Application of the unilateral change doctrine to the situation here prevents the state from frustrating its employees' right to bargain and comports with the policy concerns identified in the Public Employees Collective Bargaining Act (PECBA). See ORS 243.656. The obligation to undertake collective bargaining does not mean that the parties must come to an agreement or make concessions. ORS 243.650(4). At a minimum, PECBA requires that, on issues subject to bargaining, public employers and employees come together in good faith and acknowledge the legitimate interests of the other. That requirement ensures that employees will be consulted about decisions that will have an impact on them, thus promoting the legitimate and well-recognized goals of promoting peace in the workplace and preserving order in government operations. As ERB acknowledged in its order, "bargaining could have benefitted [FOPPO's] members." Insofar as the substantive issues at stake, that may or may not be true. Nevertheless, it might be true, and by refusing to bargain with FOPPO over the impacts of the transfer decision, the state committed an unfair labor practice under ORS...
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Federation of Oregon Parole and Probation Officers v. State, Dept. of Corrections
...held that ODOC had not committed an unfair labor practice. The Court of Appeals reversed. Federation of Oregon Parole v. Dept. of Corrections, 132 Or.App. 406, 888 P.2d 597 (1995) (FOPPO II ). For the reasons that follow, we reverse the decision of the Court of Appeals and affirm ERB's orde......
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Federation of Oregon Parole and Probation Officers v. State, Dept. of Corrections
...Oregon Parole and Probation Officers v. State, Department of Corrections NOS. A81631, S42133 Supreme Court of Oregon Apr 18, 1995 132 Or.App. 406, 888 P.2d 597. ...