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Lawmakers Muzzled on Unionization Issue
Influencing staff may be an unfair labor practice

In a memo to fellow legislators Oregon Senate President Peter Courtney and Oregon House Speaker Tina Kotek warned lawmakers against interfering with staff decisions on whether to unionize. The memo reads, in part:

It is not uncommon during organizing efforts for employees to discuss the organizing effort, whether they support or oppose it, amongst themselves and to inquire of management perspectives. While every employee and certainly every member is entitled to their opinion on such an effort, it is important to recognize that employees have a right to discuss these matters. It is not appropriate, and contrary to state collective bargaining laws that protect union organizing efforts, for you in your role as appointing authority to attempt to influence or interfere in any way – in support or opposition. Any organizing effort is inherently an employee driven process and at this time, there is no action for the branch or you to take. As always, we encourage you to listen to the concerns, interests and needs of your staff, but in this circumstance, you should not engage in any discussion about the organizing activity.

State lawmakers are not regarded in law as "employers" of their staff. They are regarded as "appointing authority." Oregon Law does not mention "appointing authority." It's not clear whether any lawmaker, as "appointing authority" can "attempt to influence" the decision of their staff or the staff of other lawmakers to join or not join a union. It is not clear if such a memo is a restriction of the free speech and association rights of lawmakers.

Oregon law is clear on what is prohibited by employers and what is an unfair labor practice.

243.670 Prohibition of actions by public employer to assist, promote or deter union organizing; rules.
(1) As used in this section:

(a) “Assist, promote or deter union organizing” means any attempt by a public employer to influence the decision of any or all of its employees or the employees of its subcontractors regarding:

(A) Whether to support or oppose a labor organization that represents or seeks to represent those employees; or
(B) Whether to become a member of any labor organization.

243.672 Unfair labor practices; complaints; filing fees.
(1) It is an unfair labor practice for a public employer or its designated representative to do any of the following:

(a) Interfere with, restrain or coerce employees in or because of the exercise of rights guaranteed in ORS 243.662.
(b) Dominate, interfere with or assist in the formation, existence or administration of any employee organization.
(c) Discriminate in regard to hiring, tenure or any terms or condition of employment for the purpose of encouraging or discouraging membership in an employee organization. Nothing in this section is intended to prohibit the entering into of a fair-share agreement between a public employer and the exclusive bargaining representative of its employees. If a “fair-share” agreement has been agreed to by the public employer and exclusive representative, nothing prohibits the deduction of the payment-in-lieu-of-dues from the salaries or wages of the employees.
(d) Discharge or otherwise discriminate against an employee because the employee has signed or filed an affidavit, petition or complaint or has given information or testimony under ORS 243.650 to 243.806.
(e) Refuse to bargain collectively in good faith with the exclusive representative.
(f) Refuse or fail to comply with any provision of ORS 243.650 to 243.806.
(g) Violate the provisions of any written contract with respect to employment relations including an agreement to arbitrate or to accept the terms of an arbitration award, where previously the parties have agreed to accept arbitration awards as final and binding upon them.
(h) Refuse to reduce an agreement, reached as a result of collective bargaining, to writing and sign the resulting contract.
(i) Violate ORS 243.670 (2).
(j) Attempt to influence an employee to resign from or decline to obtain membership in a labor organization.
(k) Encourage an employee to revoke an authorization for the deductions described under ORS 243.806.

(2) Subject to the limitations set forth in this subsection, it is an unfair labor practice for a public employee or for a labor organization or its designated representative to do any of the following:

(a) Interfere with, restrain or coerce any employee in or because of the exercise of any right guaranteed under ORS 243.650 to 243.806.
(b) Refuse to bargain collectively in good faith with the public employer if the labor organization is an exclusive representative.
(c) Refuse or fail to comply with any provision of ORS 243.650 to 243.806.
(d) Violate the provisions of any written contract with respect to employment relations, including an agreement to arbitrate or to accept the terms of an arbitration award, where previously the parties have agreed to accept arbitration awards as final and binding upon them.
(e) Refuse to reduce an agreement, reached as a result of collective bargaining, to writing and sign the resulting contract.


--Staff Reports

Post Date: 2020-11-18 07:58:50Last Update: 2020-11-18 08:51:36



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