Amicus brief ERB decision FINAL 04-23-14 (00408133-2

EMPLOYMENT RELATIONS BOARD
OF THE
STATE OF OREGON
)
)
)
Complainant,
)
v.
)
) Case Nos. UP-15-13/27-13
)
WASHINGTON COUNTY CONSOLIDATED
COMMUNICATIONS AGENCY,
)
)
Respondent
)
)
)
_________________________________________
WASHINGTON COUNTY DISPATCHERS
ASSOCIATION,
BRIEF OF THE OREGON PUBLIC EMPLOYER LABOR RELATIONS
ASSOCIATION, NATIONAL PUBLIC EMPLOYER LABOR RELATIONS
ASSOCIATION, OREGON SCHOOL BOARD ASSOCIATION, LEAGUE OF
OREGON CITIES, ASSOCIATION OF OREGON COUNTIES and OREGON
ASSOCIATION OF CHIEFS Of POLICE AS AMICI CURIAE ON THE MERITS IN
SUPPORT OF WASHINGTON COUNTY CONSOLIDATED COMMUNICATIONS
AGENCY AND IN FAVOR OF AFFIRMANCE
__________________________________________
Appeal from the Decision of Administrative Law Judge Larry L. Witherell
dated February 13, 2014
__________________________________________
Todd A. Lyon, OSB No. 076706
Tyler Volm, OSB No. 084994
Barran Liebman LLP
601 S.W. Second Avenue, Suite 2300
Portland, Oregon 97204-3159
Telephone: (503) 228-0500
[email protected]
Lisa Freiley, OSB No. 912763
Oregon School Boards Association
1201 Court St NE
PO Box 1068
Salem OR 97308
Telephone: (503) 588-2800
[email protected]
April 25, 2014
STATEMENT OF THE CASE
On or about February 13, 2014, Oregon Employment Relations Board (“ERB” or
“Board”) Administrative Law Judge (“ALJ”), Larry L. Witherell, issued his Recommended
Rulings, Findings of Fact, Conclusions of Law, and Proposed Order in Washington County
Dispatchers Association, Case Nos. UP-015/27-13 (2014). On or about April 4, 2014, the
Board issued a Notice and Invitation to File Briefs for interested parties to file amicus briefs
because “this case raises substantial questions (both policy and legal) under the Public
Employee Collective Bargaining Act (“PECBA”).”
STATEMENT OF INTEREST OF AMICI CURIAE
The Oregon Public Employer Labor Relations Association, National Public Employer
Labor Relations Association, Oregon School Boards Association, League of Oregon Cities,
Association of Oregon Counties, and the Oregon Association of Chiefs of Police
(collectively “Amici”) offer amici curiae support in cases where they can provide useful
input and perspective on issues that will significantly affect public sector management rights
and labor relations.
The Oregon Public Employer Labor Relations Association and its
national affiliate, National Public Employer Labor Relations Association, provide advocacy
so as to improve labor relations in the public sector by representing members in municipal,
county, and state governments, school districts, university systems, and special purpose
districts. The Oregon School Boards Association assists public school boards, public charter
school boards, education service district boards, and community college boards through
advocacy.
The League of Oregon Cities advocates on behalf of all of Oregon’s 242
incorporated cities to improve municipal services through technical assistance, research, and
education. The Association of Oregon Counties advocates and coordinates advocacy on
behalf of county governments to serve Oregonians. The Oregon Association of Chiefs of
Police promotes the highest ethical and professional standards in law enforcement at all
levels throughout Oregon and advocates for legal issues that help police departments better
protect citizens.
1
The Amici wish to assist ERB in deciding the present case and hereby submits this
brief providing information on the following questions.
QUESTIONS PRESENTED ON REVIEW
1. If one party insists on audio-recording bargaining sessions and the other party opposes
such recording, how should the Board treat competing complaints from both parties
alleging that the other party is conditioning bargaining on a permissive subject of
bargaining?
2. Should the Board begin with a presumption that the bargaining sessions are not to be
audio-recorded, and that in the absence of mutual agreement, a party may not insist on
audio-recording bargaining sessions and may not record such sessions without the other
party’s consent?
3. Should the Board treat the subject of audio recording a bargaining session differently
from other forms of bargaining-session note taking?
4. Should audio and video recording of bargaining sessions be treated differently?
5. With respect to other ground rule subjects, how should the Board analyze a situation
where there is no agreement on those subjects, but one party engages in bargainingsession conduct consistent with its own ground-rule proposal, yet at odds with the other
party’s ground-rule proposal?
6. If there are no discussions or proposals on bargaining ground rules, what should the
Board do if one party shows up at the first bargaining session and announces that it will
electronically record bargaining sessions and the other side opposes that action, and both
parties file unfair labor practice complaints alleging that the other party is conditioning
bargaining on a permissive subject?
Should the Board respond differently if the
announced bargaining-session conduct is something other than audio recording
bargaining sessions?
7. If the parties have contractually agreed to ground rules and one party breaches that
contract, may the other party refrain from bargaining until the breaching party brings
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itself into compliance with the contractually-agreed-to ground rules? Does the answer
depend on the nature of the breach?
8. What PECBA policies should the Board be guided by in resolving any of the scenarios
outlined above?
I.
ARGUMENT
The Board should treat competing complaints concerning conditioning bargaining
on audio recordings by finding against the party insisting on audio-recording and
dismissing the complaint against the party opposing such recording.
ERB has long ago established that requiring agreement on permissive subjects as a
condition to negotiations constitutes bad faith bargaining. See e.g., Teamsters Local 57 v.
City of Bandon, 13 PECBR 551, 554-555 (1992) (conditioning bargaining on agreement over
confidential employee’s status); Washington County v. Washington County Police Officers
Ass’n, 5 PECBR 4411, 4419-4420 (1981) (conditioning bargaining on withdrawal of a
request for mediation); City of Salem v. International Association of Fire Fighters, Local
314, 5 PECBR 4237, 4242 (1980) (conditioning bargaining on agreement to ground rules).
In the private sector, the National Labor Relations Board (“NLRB”) already
determined that the use of audio recordings in negotiations is a permissive subject. BartlettCollins Co., 237 NLRB 770, 772 (1978), enf’d, 639 F.2d 652 (10th Cir. 1981); Water
Association, 290 NLRB 838 (1988); Pennsylvania Telephone Guild (Bell Tel. Co. of Pa.),
277 NLRB 501 (1985) enf’d 799 F.2d 84 (3rd Cir. 1986).1
In following the NLRB’s line of authority, when a party insists on audio recordings,
ERB must find the party in violation of the duty to bargain in good faith.
Thus, the
Washington County Dispatcher’s Association engaged in bad faith bargaining by insisting
upon audio recordings.
As for the party who suffered illegal conduct during collective bargaining, that party
is entitled to temporarily suspend bargaining. Lyman Steel Co., 249 NLRB 296 (1980)
1
ERB looks to private sector case law for guidance in interpreting the PECBA. Elvin v.
OPEU, 313 Or 165, 177 (1992).
3
(obligation to bargain is suspended due to union’s illegal strike). This is especially true
where one party engages in bad faith bargaining by insisting to impasse on a permissive
subject. Nassau Ins. Co., 280 NLRB 878 (1986). In Nassau, the Union, like the Association
in the present case, insisted on a stenographer because of a lack of trust between the parties.
Nassau, 280 NLRB 887. In Nassau, the Board adopted the ALJ’s decision, finding the
Union’s insistence oN a stenographer during negotiations was “an insistence on a nonmandatory subject of bargaining under the principle announced in Bartlett-Collins.” Id. at
887. Accordingly, the NLRB allowed the Employer to temporarily suspend bargaining.
However, the duty to bargain is only suspended for so long as the period of the breach or
unlawful action continues. Arundel Corp., 210 NLRB 525 (1974); Dorsey Trailers, Inc., 80
NLRB 478 (1948) (suspending the employer’s obligation to bargain pending the Union’s
illegal conduct).
Therefore, in this case, ERB must dismiss any complaint against the party who does
not insist upon audio recordings.
As to the procedural handling of such cases, the Board should process such
competing complaints under its expedited unfair labor practice rules. According to OAR
115-035-0060(2), expedited consideration may be given only to complaints which are limited
to allegations under ORS 243.672(1)(e) or (2)(b). In so doing, the Board order “generally
shall be issued within 45 days of the date on which the expedited complaint is filed.” This
will ensure a timely resolution to the violation without delaying the bargaining period.
However, regardless of how the matter is processed, ERB should consider tolling the 150 day
period under ORS 243.712(1).
II.
The Board should begin with a presumption that the bargaining sessions are not
to be audio-recorded.
The NLRB has already determined that the use of audio recordings in negotiations is
a permissive subject. Bartlett-Collins Co., 237 NLRB 770, 772 (1978), enf’d, 639 F.2d 652
(10th Cir. 1981); Water Association, 290 NLRB 838 (1988); Pennsylvania Telephone Guild
4
(Bell Tel. Co. of Pa.), 277 NLRB 501 (1985) enf’d 799 F.2d 84 (3rd Cir. 1986); Local No.
455, Bakery, Confectionary and Tobacco Workers International Union (Nabisco Brands),
272 NLRB 1362 (1984). Thus, ERB must follow this same line of authority by beginning
any analysis with a presumption that bargaining sessions are not to be audio-recorded.
Absent mutual agreement, a party may not insist on audio-recording bargaining sessions and
may not record such sessions without the other party’s consent because to do so would be to
act unilaterally on a permissive subject.
III. The Board should treat the subject of audio recording of a bargaining session
differently from other forms of bargaining-session note taking because of the
chilling effect associated with verbatim audio recording.
There are significant differences between the uses, and potential misuses, to which
traditional note taking and audio recordings may be put. Traditional note taking allows each
party to make a historical record of the discussions; memorializing statements of intent and
how a certain provision is to be implemented, both for ease of administration and to assist in
clarifying any ambiguities that may arise when administering the negotiated agreement.
Importantly, what to record through traditional note taking is left to the discretion of each
party. Audio recording, however, does not provide the parties with that discretion and, more
importantly, is likely to change their behavior during the negotiation, impeding meaningful
collective bargaining.2 Further, audio recordings may be more widely disseminated or may
be manipulated to change the intent, nature, or even content of the conversation (for example,
if only a certain portion of the audio recording is released, which takes the intent, nature, or
content of the conversation out of context).
In NLRB and American Flint Glass Workers Union v. Bartlett-Collins Company, 639
F.2d 652, 655-656 (1981), the Court recounted that numerous experts in the field of labor
2
Undoubtedly, the civil court rules recognize that audio and video recordings change the
intensity of depositions when, under FRCP 30(b)(3), parties must provide notice of an intent
to depose using audio or video recording devices.
5
relations have concluded “that the presence of a court reporter ‘has the tendency to inhibit
free and open discussion necessary for conducting successful collective bargaining.’ It may
cause parties to talk for the record rather than to advance toward an agreement. The
proceedings may become formalized, sapping the spontaneity and flexibility often necessary
to successful negotiations.” Id., citing Bartlett-Collins Co., 99 LRRM 1034, 1036 n. 9.
Additionally, demanding court reporting “may give notice that one party lacks confidence in
the collective bargaining process, anticipating litigation rather than agreement” and
“informed persuasion may be supplanted by the concern for being a careful litigation.” Id.,
citing St. Louis Typographical Union, 57 LRRM at 1372 (Fanning and Brown, concurring).
See also Pennsylvania Telephone Guild (Bell Telephone Company), 277 NLRB 501 (1985),
enf’d, 799 F2d 84 (3rd Cir. 1986) (NLRB held it to be bad faith bargaining to insist on the
presence of a recording device during a grievance meeting, concluding that the device may
have a tendency to inhibit free and open discussions).
For these reasons, audio recording must be treated differently than traditional note
taking, and should only be enforced against an unwilling party in the most extreme
circumstances or where there is an overriding public policy concern that is satisfied by the
imposition of audio recording requirements. PECBA’s policy of facilitating cooperative and
harmonious relationships between labor and management would be severely undercut if one
side was allowed to audio record a bargaining session without the other party’s consent.
IV. The Board should treat the subject of video recording of a bargaining session
differently from an audio recording because of the increased chilling effect
associated with video recording which, in addition to recording the verbatim
discussion, also records the demeanor of the negotiating parties.
Video recording has an even greater likelihood to inhibit free and open discussion
necessary for conducting successful collective bargaining, pushing the parties even further
out along this spectrum of inhibitions. Where there appears to be little to no impediments to
free and open discussions when each party employs traditional note taking, when video
recordings are introduced, the concerns discussed in the previous section are amplified. This
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amplification is even greater when not just the words, but the conduct and demeanor of the
speakers are also recorded. Where audio recordings may cause parties to “talk for the
record” rather than to advance toward an agreement, video recordings may cause the parties
to go one step further and “act for the record.” Spontaneity and flexibility are almost entirely
eliminated when a party’s words and actions are being recorded. For these reasons, video
recording must be treated differently than traditional note taking and even audio recording,
and should only be enforced against an unwilling party in the most extreme circumstances.
V.
Where one party engages in bargaining session conduct consistent with its own
ground rule proposal, yet at odds with the other party’s ground rule proposal, the
Board should presume the party advancing a permissive subject to be engaged in
bad faith bargaining.
Where the parties have engaged in discussions over bargaining ground rules, but with
no agreement, and the parties act in conformity with their proposals, the Board must first
determine whether the subject matter is a mandatory or permissive subject. If the subject is a
mandatory subject, then the party advancing the matter is entitled to insist upon its proposal.
If, however, the subject is a permissive subject, the party advancing the subject must be
presumed to be bargaining in bad faith.
Either party may agree to negotiate about a
permissive subject but is not required to do so. Therefore, the party advancing a permissive
subject must be presumed to be acting in bad faith. This is consistent with the NLRB’s
approach where it determines whether the proposed condition being advanced is so onerous
or unreasonable as to indicate bad faith. Higgins, The Developing Labor Law, Sixth Ed., p.
956 (2012).
VI. Where one party shows up at the first bargaining session and announces that it
will electronically record bargaining sessions and the parties have dueling unfair
labor practice complaints, the Board should presume the party advancing the
audio recording conduct to be engaged in bad faith bargaining.
In the situation where the parties have not even had a discussion about ground rules
(unlike Question #5 above) and one party advances the audio recording, the Board is
compelled to presume the party advancing the audio recording is engaged in bad faith
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bargaining. This is especially true because there was no notice to prepare the other party for
the potential of audio recordings. With no notice, the conduct of advancing a permissive
subject is that much worse. There is no need for the Board to handle things differently if the
subject matter is something other than audio recordings.
VII. Where one party breaches any provision of the ground rules, the other party may
refrain from bargaining until the breaching party brings itself into compliance
with the contractually-agreed to ground rules.
The Board has held that executed ground rules are enforceable under PECBA, and
that a violation of ground rules constitutes an unfair labor practice. Salem v. IAFF, Local
314, 5 PECBR 4237. In that case, the Board concluded that “to allow a party to abrogate
such an agreement, upon which another party is reasonably relying in developing and
implementing its bargaining strategy, could only harm the ‘development of harmonious and
cooperative relationships’ which the PECBA was enacted to foster.” Id. at 4242. See also
Beaverton Substitute Teachers Ass’n v. Beaverton School Dist. 48, 15 PECBR 229, 244
(1994) (union’s failure to respond in a timely manner to the employer’s request to open
negotiations under a mutually-agreed-to funding clause constituted a violation of the parties’
agreement and under ORS 243.672(2)(d)). A party may lawfully suspend negotiations when
the other party is engaged in unlawful action, Lyman Steel Co., 249 NLRB 296 (1980), and
this is especially true when one party insists to impasse on a permissive subject. Nassau Ins.
Co., 280 NLRB 878 (1986). The duty to bargain is only suspended for so long as the period
of the breach or unlawful action continues. Arundel Corp., 210 NLRB 525 (1974); Dorsey
Trailers, Inc., 80 NLRB 478 (1948).
Therefore, if one party breaches any of the ground rules, the other party may refrain
from bargaining until the breach is fully remedied. This analysis should not change based on
the nature or severity of the breach because the parties had an opportunity to negotiate the
ground rule, and properly tailor its scope to their needs, such that even a minor breach of
those rules should constitute bargaining in bad faith. Furthermore, if the breach is minor in
8
nature, the breaching party will not have to take extensive steps to remedy the breach,
limiting the amount of time the parties are away from the bargaining table.
VIII. The PECBA policies should guide the Board in resolving the scenarios above.
The Board should be guided by PECBA’s legislative policy which states that a
structured bargaining law encourages “practices fundamental to the peaceful adjustment of
disputes.” ORS 243.656(3). Establishing ground rules is the first step in the process of
peaceful adjustment of disputes, and proper enforcement of these ground rules in the manners
discussed above will increase the effectiveness and efficiency of the collective bargaining
process, satisfying many of the legislative policies outlined in ORS 243.656. If a party were
free to breach agreed-upon ground rules without the possibility of sanctions, the
“consequence would vitiate the development of harmonious and cooperative negotiations at
the critical stage of the bargaining process. By allowing this development, we would fail in
‘our statutory responsibility to foster and encourage meaningful collective bargaining’ by
‘permitt[ing] a party to stifle negotiations in their inception over such a threshold issue.’”
Washington County Dispatchers Association v. Washington County Consolidated
Communications Agency, Case Nos. UP-015/27-13 page 13, citing Bartlett Collins, 237
NLRB at 770, 773 (1978), enf’d, 639 F.2d 652 (10th Cir. 1981). Additionally, any processes
that may inhibit the free and open discussion necessary for conducting successful collective
bargaining must be carefully reviewed by the Board, and any such process that falls into the
category of a permissive subject should be saddled with a presumption that the advancing
party is negotiating in bad faith.
//
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CONCLUSION
For the foregoing reasons, amici curiae join with Washington County Consolidated
Communications Agency to respectfully request ERB affirm the ALJ’s decision in this
matter.
Dated this 25th day of April, 2014.
Respectfully submitted,
BARRAN LIEBMAN LLP
By
_________________________________
Todd A. Lyon, OSB No. 076706
Tyler Volm, OSB No. 084994
Attorneys for Amici Curiae ORPELRA,
NPELRA, League of Oregon Cities, Association
of Oregon Counties, Oregon Association Chiefs
of Police
OREGON SCHOOL BOARD ASSOCIATION
By
_________________________________
Lisa M. Freiley, OSB No. 912763
Attorney for Amici Curiae Oregon School
Boards Association
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CERTIFICATE OF FILING AND SERVICE
I hereby certify that on the date below I filed by fax the foregoing Brief of the ORPELRA,
NPELRA, Oregon School Board Association, the League of Oregon Cities, Association of
Oregon Counties and Oregon Chiefs of Police Association as Amici Curiae on the following:
Oregon Employment Relations Board
528 Cottage Street NE
Suite 400
Salem, OR 97301
Fax: (503) 373-0021
At the same time, I served this document, via certified first-class U.S. mail, postage prepaid,
to the following:
Daniel Rowan
Bullard Law
200 SW Market, Suite 1900
Portland, OR 97201
Attorney for the Agency
Elizabeth Lemoine
Makler, Lemoine & Goldberg, P.C.
515 NW Saltzman Road, Ste 811
Portland, OR 97229
Attorney for the Association
Dated this 25th day of April, 2014.
BARRAN LIEBMAN LLP
By
_________________________________
Todd A. Lyon, OSB No. 076706
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