Union Can Demand Mid-Term Bargaining On Topic Not Covered By Contract

Written on 06/10/2022
Will Aitchison

While its collective bargaining agreement was in effect, the Multnomah County Corrections Deputy Association demanded to bargain over “mandatory safety issues.” When the County refused to negotiate, the Association filed an un­fair labor practice complaint contending a breach of the obligation to bargain in good faith.

The County took the position 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, on the other hand, 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.

The Oregon Court of Appeals sided with the Association. The Court cited the general public policy behind Oregon’s collective bargaining laws, that the “Ore­gon legislature has declared that the pur­poses of The Public Employee Collective Bargaining Act (PECBA) are to ‘obligate public employers, public employees, and their representatives to enter into col­lective negotiations with willingness to resolve grievances and disputes relating to employment relations.’ The Supreme Court has concluded that the legislature’s statement of policy thus demonstrates an intent for PECBA to apply broadly in favor of public employees’ rights to organize and bargain collectively.”

The Court also observed that “the legislature extended to public employees in Oregon the same benefits and protec­tions that federal law had long afforded to employees in the private sector under the National Labor Relations Act (NLRA). Because the legislature largely modeled Oregon’s statute after the federal one, courts seek guidance in understanding PECBA by considering federal cases interpreting the NLRA that were in existence at the time that the legislature enacted PECBA.

“One such federal case – which was cited by the Employment Relations Board in its reconsideration order – is NLRB v. Jacobs Mfg. Co., 196 F2d 680 (2d Cir 1952). In Jacobs, one issue before the court was whether the employer had a duty to bargain when the union requested midterm bargaining over pensions – a mandatory subject not spe­cifically covered in the parties’ existing agreement. The Supreme Court held that as no provision of the NLRA relieves an employer of the duty to bargain as to subjects which were neither discussed nor embodied in any of the terms and conditions of the contract, and that the general purpose of the NLRA is to require employers to bargain as to em­ployee demands whenever made, it was the employer’s statutory duty to bargain on the subject of pensions.

“We hold that the Board’s conclu­sion under Oregon’s collective bargain­ing laws – i.e., that 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 – is consistent with the range of discretion allowed by the more general policy underlying PECBA.”

Multnomah County v. Multnomah County Corrections Deputy Association, 317 Or. App. 89 (Or. App. 2022).

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