Multnomah Cnty. v. Multnomah Cnty. Corr. Deputy Ass'n
| Decision Date | 20 January 2022 |
| Docket Number | A174035 |
| Citation | 317 Or.App. 89,505 P.3d 1037 |
| Parties | MULTNOMAH COUNTY, Petitioner, v. MULTNOMAH COUNTY CORRECTIONS DEPUTY ASSOCIATION, Respondent. |
| Court | Oregon Court of Appeals |
David Landrum, Portland, argued the cause and filed the briefs for petitioner.
Aruna A. Masih, Portland, argued the cause and filed the brief for respondent.
Lory J. Kraut and Fallon Niedrist filed the brief amici curiae for League of Oregon Cities, Association of Oregon Counties, and Oregon Public Employer Labor Relations Association.
Jason M. Weyand, Danielle Holmes, and Tedesco Law Group filed the brief amici curiae for Oregon Schools Employees Association, American Federation of State, County and Municipal Employees, Council 75, Oregon Education Association, Oregon American Federation of Labor-Congress of Industrial Organizations, Oregon State Firefighters Council, Teamsters Local 223, Service Employees International Union, Local 503, and American Federation of Teachers Oregon.
Before Tookey, Presiding Judge, and Aoyagi, Judge, and Armstrong, Senior Judge.
Petitioner Multnomah County seeks judicial review of a reconsideration order issued by the Employment Relations Board. In that order, the board concluded that, under Oregon's Public Employee Collective Bargaining Act (PECBA), ORS 243.650 - 243.782, a public employer has a duty to bargain in good faith when a union initiates midterm bargaining over mandatory subjects not specifically covered by the parties’ agreement, even in the absence of a unilateral change proposed or made by the employer. In its sole assignment of error, the county argues that PECBA does not impose the duty articulated in the board's order. We affirm.1
The parties "do not contest the board's findings of historical fact," so we "take the facts from the board's order, supplementing them with consistent facts from the record as necessary." Vaughn v. Marion County , 305 Or. App. 1, 2, 469 P.3d 231 (2020).
The association filed a complaint with the board, alleging that the county had committed an unfair labor practice by refusing to bargain in good faith with the association about "mandatory safety issues." The board determined that the county had not committed an unfair labor practice and dismissed the association's complaint.
The association then filed a request for reconsideration, and the county joined in that request, asking the board to clarify, among other points, "whether the County has a duty to engage in midterm bargaining about the safety issues raised by the Association." The board granted the parties’ joint request and held a hearing. The county argued that it had no duty to engage in midterm bargaining where it had not proposed or made any unilateral change concerning or affecting a mandatory subject. The association argued that it had the right to initiate midterm bargaining over mandatory safety issues and should not have to wait until the next round of successor bargaining to address those issues.
Thereafter, the board issued a reconsideration order, explaining that the parties’ dispute "boils down to whether the County has a duty to bargain when the Association requests midterm bargaining over a mandatory subject not specifically covered by the parties’ agreement, even in the absence of a unilateral change proposed or made by the County." The board then concluded that "the answer to that question is yes, the County has [that] duty."2 In reaching that conclusion, the board's discussion centered on "the mutual obligation of a public employer and the representative of its employees to meet at reasonable times and confer in good faith with respect to employment relations for the purpose of negotiations concerning mandatory subjects of bargaining." ORS 243.650(4).3
Preliminarily, the board noted that it had "unequivocally answered this question in Redmond [Educ. Ass'n v. Redmond Sch. Dist. No. 2J , 1 PECBR 41, aff'd , 19 Or. App. 212, 527 P3d 143 (1974)]," where it had relied on Nat'l Labor Relations Bd. v. Jacobs Mfg. Co. , 196 F.2d 680, 684 (2d Cir 1952) —a federal case interpreting the National Labor Relations Act—to support the proposition that "an employer has a duty to bargain in good faith when a union initiates midterm bargaining on mandatory subjects not specifically covered by the parties’ agreement." The board then said that "even in the absence of Redmond , we would reach the same conclusion" and proceeded with its analysis.
The board began by explaining that " ‘collective bargaining’ is, by definition, mutual," under the first clause of ORS 243.650(4), which provides:
" ‘Collective bargaining’ means the performance of the mutual obligation of a public employer and the representative of its employees to meet at reasonable times and confer in good faith with respect to employment relations for the purpose of negotiations concerning mandatory subjects of bargaining[.]"
(Emphasis added.). The board reasoned that, to interpret that provision "as giving only a public employer, and not a labor organization, the right to initiate bargaining during the term of the contract, we would have to ignore the ‘mutual’ element of the statutory definition of collective bargaining."
The board further explained that the policy underlying PECBA was "intended to bring the parties into a collective bargaining atmosphere of equality of bargaining power."
(Internal quotation marks omitted.) The board reasoned that to "allow public employers to retain the right to raise new issues when they arise midterm, but deny that same right to public employee unions, would provide an unfair advantage and create a bargaining inequality that conflicts with [PECBA's] purposes."
In addition, the board noted that PECBA had been modeled after the National Labor Relations Act (NLRA), under which "unions and employers have always had an equal right to initiate midterm bargaining." Again citing Jacobs , 196 F.2d 680, the board said, "[T]he rule that unions have the right to initiate midterm bargaining was already well-settled under the NLRA when the legislature modeled PECBA on that statute" in 1973.
Ultimately, the board concluded that "the collective bargaining rights and duties that PECBA confers on both parties, not just an employer, include the right to initiate midterm collective bargaining" over "mandatory subjects not specifically covered by the parties’ existing agreement," and that "permitting both parties to exercise that right advances PECBA's policies and purposes." (Emphasis in original.)
On review, the county argues that the board erred in construing PECBA, because "PECBA does not impose a duty on public employers to bargain midterm over subjects not covered in a CBA where the employer neither makes nor proposes any change to the status quo." In response, the association argues that the board's "conclusion regarding the ‘mutuality’ of the ‘collective bargaining’ rights and duties provided for in the PECBA should be upheld because it is consistent with not only the Redmond case and pre-PECBA NLRA cases, but also the text, context, and legislative history of ORS 243.650(4)."
In addition, amici for both the county and the association submitted briefs in support of the parties’ respective positions. Amici for the county argue, among other points, that the board's decision "will disrupt and impede efficient operation of government entities" and "undermines rather than promotes harmonious and cooperative" labor relations. Amici for the association contend, among other points, that the board's order is "consistent with the clear text of the statute" and "previous [board] and private sector precedent," and that it "advances the purposes and policies underlying the PECBA."
We begin by determining our standard of review. The parties’ arguments center on the board's conclusion about the collective bargaining obligations imposed by PECBA. As noted above, the board reached that conclusion, in part, by relying on ORS 243.650(4). Thus, this case presents a question about "the intended meaning of a statute," which "ultimately is a question of law." OR-OSHA v. CBI Services, Inc. , 356 Or. 577, 585, 341 P.3d 701 (2014). But, "depending on the nature of the statutory term at issue, an administrative agency's construction of a statute nevertheless may be entitled to a measure of deference." Id.
"Whether the agency's construction is entitled to such deference depends on whether the disputed term is exact, inexact, or delegative." Id . " ‘Exact terms’ impart relatively precise meanings, and their applicability in a particular case involves only agency factfinding." Coast Security Mortgage Corp. v. Real Estate Agency , 331 Or. 348, 353, 15 P.3d 29 (2000) (). "Inexact terms are less precise and are open to various interpretations, but they embody a complete expression of legislative meaning." Arvidson v. Liberty Northwest Ins. Corp. , 366 Or. 693, 700, 467 P.3d 741 (2020) (). "Delegative terms express incomplete legislative meaning that the agency is authorized to complete"—e.g. , " ‘good cause,’ ‘fair,’ ‘undue,’ ‘unreasonable,’ and ‘public convenience and necessity.’ "
CBI Services, Inc. , 356 Or. at 585, 341 P.3d 701 (internal quotation marks omitted).
Here, the phrase at issue is "the mutual obligation of a public employer and the representative * * * to meet at reasonable times and confer in good faith with respect to employment relations for the purpose of negotiations concerning mandatory subjects of bargaining[.]" ORS 243.650(4) (emphases added). Some...
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