Background Brief on …

Collective

September 2012 Bargaining

Inside this Brief Approximately 250,000 employees in public and private

employment in Oregon are represented in a collective  National Labor bargaining agreement. Collective bargaining consists of Relations Act negotiations between an employer and a group of employees to determine employment conditions. Both  Oregon Public federal and state law requires collective bargaining for Employee Collective employers and bargaining units who have either voted in an election conducted by the National Labor Relations Bargaining Act Board, Oregon Employment Relations Board, or when the employer has voluntarily recognized the employees’  Election Process union. Collective bargaining activities of most private sector employees who work in the private sector and the  Articles in a Collective United States Postal Service are regulated by the Bargaining National Labor Relations Act. Federal employees are covered under the Federal Service Labor-Management Agreement Relations statute, and state and local employees in Oregon are covered under the Public Employee  Bargaining Process Collective Bargaining Act.

 Strike vs. Arbitration National Labor Relations Act – PECBA The National Labor Relations Board (NLRB) is an independent federal agency created by Congress in 1935 to administer the National Labor Relations Act (NLRA),  Strikes - NLRA the primary law governing relations between unions and employers in the private sector. The NLRB is  Staff and Agency responsible for conducting elections to determine Contacts whether employees desire union representation; investigate unfair labor practice allegations made by employees, unions, and employers; facilitate settlements

and decide cases pertaining to unfair labor practices charges, and enforce orders issued by the Board. The NLRA guarantees the right of employees to organize and

Legislative Committee Services to bargain collectively with their employers, and to State Capitol Building engage in other protected concerted activity with or Salem, Oregon 97301 without a union or to refrain from all such activity. The (503) 986-1813 Act outlines the basic rights of employees to form or

Background Brief - Legislative Committee Services Page 1 of 6 join a union; collectively bargain for a contract covered under the public sector bargaining that sets wages, benefits, hours and other statute and the issues that these groups could working conditions; discuss wages, working meet and confer about. conditions or union organizing with co-workers or a union; work with co-workers on improving In 1969, as a result of a major reorganization in working conditions by raising complaints with state government and because of an increasing an employer or a government agency; strike and concern in the legislature about public employee picket their employer, depending on the purpose bargaining, the independent State Civil Service or means of the action; choose not to join a Commission was abolished and personnel union or engage in union activities; and organize management for state service was centralized in co-workers to decertify a union. The NRLA also the personnel division of the Governor's outlines prohibited activities for employers and Executive Department. The Civil Service unions, such as threatening job loss, retaliating Commission was retitled the Public Employee against employees who join or support a union, Relations Board. By 1971, while a number of refuse to process grievances of employees who local governments were bargaining with labor criticize union officials or do not join a union, organizations representing their employees, and take adverse action against employees who other local governments refused to bargain. A do not support the union. task force was created to develop a framework of law and regulation that would permit orderly The NLRA does not cover a number of collective bargaining, and submitted their employee groups, including agricultural findings to the 1973 Legislative Assembly. laborers, domestic workers, supervisors, independent contractors, federal employees, The Public Employee Collective Bargaining Act whose collective bargaining rights are (PECBA) became effective in October 1973. administered by the Federal Labor Relations The PECBA administers the laws governing Authority, and employees of entities subject to employment relations and public employers and the Railway Labor Act such as railroads and employees in the state, counties, cities, school airlines, which are protected by the National districts, transportation districts, and other local Mediation Board. However, states are allowed, governments as well as private employers not under the Act’s provisions, to establish subject to NLRB jurisdiction. Employees that guidelines for exempt groups, and can further are not covered under the PECBA and cannot regulate collective bargaining and make organize include elected officials, persons collective agreements enforceable under state appointed to serve on boards or commissions, law. incarcerated persons working under section 41, Article I of the Oregon Constitution, or persons Oregon Public Employee Collective who are confidential employees, supervisory Bargaining Act employees or managerial employees. The evolvement of public employee collective bargaining has taken place over the past several The Employment Relations Board (ERB), who decades, beginning in the 1959 legislative is responsible for enforcing the PECBA, session. Public employees were first able to performs similar duties as the NLRB. Examples conduct collective bargaining in 1963 via the of responsibilities include determining enactment of a law that permitted employees to appropriate bargaining units and conducting organize and bargain with their employers elections regarding collective bargaining regarding "employment relations”, which representation for employees; resolving disputes included, but was not limited to, "matters over union representation and collective concerning wages, salaries, hours, vacations, bargaining negotiations, and issuing declaratory sick leave, holiday pay and grievance rulings and orders in contested case procedures." Slight changes were made through adjudications of unfair labor practice the years in regards to the employee groups

Background Brief - Legislative Committee Services Page 2 of 6 complaints, appeals from state personnel actions, majority of the unit employees. Failure to and related matters. bargain with the union after certification is considered an unfair labor practice. Election Process Private sector employee groups covered under Employee groups subject to the NLRA can also the NLRA must file a petition with the NLRB organize under what is known as “card check,” from at least 30 percent of employees in a in which an employer can be persuaded to proposed bargaining unit. The Board staff in voluntarily recognize a union after showing turn investigates to ensure that the union is majority support by signed authorization cards qualified, the Board has jurisdiction, and no or other means. If a union is voluntarily existing labor contracts would bar an election. recognized, its status as the employee group’s Next, the NLRB seeks an election agreement bargaining representative cannot be challenged between the employer and the union that sets the during a “reasonable period,” defined as no less parameters and logistics, such as ballot than six months and no more than one year, after language, the size of the bargaining unit, and a the parties’ first bargaining session. These sorts method for determining who is eligible to vote. of arrangements are made outside of the NLRB Once the agreement is in place, the parties process. authorize the NLRB Regional Director to conduct the election; if no agreement is reached, In Oregon, the PECBA also allows the card the regional director can order the election to be check authorization to take place in which held and set the conditions in accordance with employee(s) or the labor organization acting on existing rules and decisions. behalf of the employees can file a petition to the ERB for organizing. If the Board finds that more If a union is already in place, a competing union than 50 percent of the bargaining unit’s can file an election petition if the labor contract employees have signed authorizations is about to expire or has expired. Thirty percent designating the labor organization as the of the employees must show interest before this employees’ bargaining representative, and that type of election petition can be acknowledged. no other labor organization is currently certified This normally results in a three-way election, or recognized as the exclusive representative of with the choices being the incumbent union, the any of the unit’s employees, the Board shall challenging union, or no representation. If none certify the organization as the exclusive of the three options receives a majority vote, a representative. runoff is conducted between the top two vote- getters. A representation election can take place instead of card check if 30 percent of the employees in Elections are typically held at the worksite but the bargaining unit request an election within 14 can be conducted off-site or by mail if days after a majority of workers have signed the employees are dispersed over a wide geographic authorization cards. In those circumstances, the area or other circumstances. Elections are representation election must be conducted on- generally held within 30 days from the date of site or by mail no later than 45 days after the the Director’s order or authorization. An election date the petition was filed. The ballot must can be postponed if one of the parties files include only those labor organizations charges alleging conduct that would interfere designated to be placed on the ballot by more with employee free choice in the election. than 10 percent of the employees in the proposed bargaining unit, and a provision for Post-election, the NLRB issues a formal marking no representation. The labor certification of the union as the duly designated organization that receives the majority of the collective bargaining representative or a votes cast will be certified by the ERB as the certification of the results of the election in the bargaining unit’s exclusive representative. event the union does not receive the support of a

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Articles in a Collective Bargaining school or educational calendar, standards of Agreement performance or criteria for evaluation of Most items included in a collective bargaining teachers, the school curriculum, reasonable agreement are common amongst all bargaining dress, grooming and at-work personal conduct units. Examples include wages and fringe requirements respecting smoking, gum chewing benefits, vacation time, grievance procedures, and similar matters of personal conduct, the arbitration, health and safety, nondiscrimination standards and procedures for student discipline, clauses, no-strike clauses, length of contract, and the time between student classes. management rights, discipline, seniority, and union security. Bargaining Process All employers under a collective bargaining The NLRA states that some managerial agreement are required to act in ”good faith” decisions such as subcontracting and other with the certified labor organization that operational changes may not be mandatory represents the employees, actively participating bargaining subjects, but an employer must in deliberations so as to indicate intent to find a bargain about the decision’s effect on unit basis for agreement. employees. Agreements in the building and construction industry and other industries can Under the NLRA, the obligation to bargain is include specific items such as the requirement imposed equally on the employer and the labor for the employer to notify the union about job organization, but does not compel either party to openings and ability for the union to refer agree to a proposal by the other, nor does it qualified applicants for such jobs. require either party to make a concession to the other. However, refusing to bargain collectively The PECBA defines items that can be discussed with the other is an unfair labor practice. If no in the collective bargaining process as agreement can be reached after sufficient good “employment relations,” which is defined under faith efforts are practiced, the employer can statute to include, but is not limited to “matters declare impasse and implement the last offer concerning direct or indirect monetary benefits, presented to the union. The union has the right hours, vacations, sick leave, grievance to disagree that true impasse has been reached, procedures, and other conditions of file an unfair labor practice charge for failing to employment.” Employment relations cannot bargain in good faith, and leave it to the NRLB include subjects that are determined to be to determine whether true impasse was reached. permissive, non-mandatory subjects of collective If the Board rules in favor of the union, the bargaining, subjects determined by the ERB to employer will be asked to return to the have a greater impact on management than on bargaining table, and has the right to seek a terms and conditions of employment, or wages federal court order to force bargaining. and hours, and subjects that have an insubstantial effect on these items. The PECBA includes a number of steps designed to help the parties reach agreement. Some groups of bargaining units have explicit The public employer and the employees’ labor items that are either required to be included or organization are initially required to meet and excluded from the agreement. For employees bargain directly with each other, and both parties covered in ORS 243.736, such as first are to participate in good faith negotiations for at responders, the “employment relations” least 150 calendar days before either party may definition includes safety issues that have an unilaterally request the assignment of a impact on the on-the-job safety of the employees mediator. For a new bargaining unit, the 150 or staffing levels that have a significant impact days begin when a labor organization is first on employees’ on-the-job safety. The definition recognized or certified; for negotiations over a of “employment relations” for school district successor agreement or a reopener in a current bargaining excludes items such as class size, the agreement, the 150 calendar days begin when

Background Brief - Legislative Committee Services Page 4 of 6 the parties meet for the first bargaining session bargaining obligation ceases 90 days after the and have exchanged their initial proposals. employer’s notice to the union. At that time, if no agreement has been reached, the employer Each party typically has a bargaining team that may implement its change. The parties may generally meets in face-to-face negotiation jointly request mediation during the 90-day sessions during this stage of the process. The period. Binding arbitration cannot be initiated parties may adopt bargaining ground rules, such during the 90-day period. as the traditional “position/proposal-based” process, in which the parties usually identify the Strike vs. Arbitration - PECBA issues for bargaining and then exchange and Under the PECBA, the final step in the discuss proposals in an attempt to reach collective bargaining process depends on the agreement on those issues. Some parties use a type of work done by the employees in the variety of other collaborative processes. bargaining unit. Most bargaining units are designated as strike-permitted. However, certain If the parties do not reach agreement in direct represented groups are expressly prohibited from bargaining, they move to mediation. The ERB’s striking. State Conciliation Service is responsible for providing the mediation services. Once the The final step for an employer of a strike- initial 150 calendar days of bargaining has permitted employee bargaining unit is the right expired, either party can initiate the mediation to implement its final offer, or to jointly agree process by written request. The parties may with the labor organization to resolve their labor mutually agree to go to mediation prior to the dispute through binding interest arbitration. The expiration of the 150-day period; under these employer of a strike-permitted bargaining unit circumstances, the request for mediation must be may implement its final offer after completing signed by both parties. the prior steps of the PECBA bargaining process. Under current ERB case law, the Once the request for mediation is made, a employer is required to provide the union mediator is appointed, the parties are notified of reasonable notice (five days) of its intent to the appointment, and a mediation session is implement. An employer may implement all or a scheduled as soon as a mediator and the portion of its final offer. members of both bargaining teams are available. If the first session is unsuccessful, additional A strike can take place only after completing the mediation sessions may be scheduled. The prior steps of the PECBA bargaining process in PECBA mandates that parties remain in good faith and giving 10 days notice of their mediation for a minimum of 15 calendar days, in intent to strike by certified mail to the ERB and which one or two sessions typically occur. After the public employer. The notice must specify the the 15 day time period, the parties may continue first day of the strike and the reasons for the in mediation or either party can initiate the next strike, including the list of unresolved issues. step in the process by declaring an impasse in The notice may be sent during the 30-day the negotiations. cooling off period, although a strike cannot occur until after the 30-day period. A lawful The PECBA provides for an expedited strike may only occur after the labor agreement bargaining process for employer proposals to has expired or pursuant to a reopener provision change in certain working conditions during the in a collective bargaining agreement, term of a collective bargaining contract. Under negotiations under the mid-term expedited this process, an employer must give the union bargaining process or the renegotiation of an notice of its intent to change a condition that invalid provision in the agreement. imposes a bargaining obligation, and the union Examples of bargaining units that are prohibited may file a demand to bargain within 14 days from striking include police officers, firefighters, after the employer’s notice. The required 911 dispatchers, parole officers, corrections

Background Brief - Legislative Committee Services Page 5 of 6 guards, deputy district attorneys, and employees A lawful strike falls under two classes: of mass transit districts, transportation districts, “economic strikers” if the strike’s object is to and municipal bus systems. As an alternative to obtain higher wages, shorter hours, or better a strike by the employees and final offer working conditions; and “unfair labor practice implementation by the employer, labor strikers” that are protesting an unfair labor organizations and employers of strike-prohibited practice committed by their employer. Economic units must use binding interest arbitration. The strikers cannot be discharged, but can be binding arbitration process is initiated by the replaced. If the employer has hired permanent petition filed with the ERB along with the final replacements, strikers are not entitled to offer. The Board then sends notice to the parties immediate reinstatement, but entitled to be that binding arbitration has been initiated. recalled to jobs as openings occur, if they offer unconditionally to return to work. Unfair labor Prior to the arbitration hearing, unresolved practice strikers cannot be discharged or mandatory subjects submitted to the arbitrator in permanently replaced. Absent serious the parties’ “last best offer” packages shall be misconduct on their part, unfair labor practice decided by the arbitrator, basing their findings strikers are entitled to have their jobs back even and opinions on the interest and welfare of the if employees hired to do their work have to be public; the reasonable financial ability of the discharged. government unit to meet the costs of the proposed contract giving due consideration and Strikes that violate a no-strike provision of a weight to the other services, provided by, and contract are not protected by the NLRA, and other priorities of, the unit of government as striking employees can be fired. Picketing can determined by the governing body; the ability of also be lawful or unlawful depending on its the government unit to attract and retain purpose, timing, or misconduct. At worksites qualified personnel at the wage and benefit with one than more employer, such as a levels provided; the overall compensation construction site, picking is only permitted if the presently received by the employees, including protest is clearly directed exclusively at the direct wage compensation, vacations, holidays primary employer. and other paid excused time, pensions, insurance, benefits, and all other direct or Staff and Agency Contacts indirect monetary benefits received; and the Theresa Van Winkle comparison of the overall compensation of other Legislative Committee Services employees performing similar services with the 503-986-1496 same or other employees in comparable communities (defined as those with the same or National Labor Relations Board near the same population within Oregon). An 866-667-NLRB interest arbitration award becomes the parties’ contract. Employment Relations Board 503-378-3807 Strikes - NLRA Labor union members covered under the NLRA have the right to “engage in other concerted Committee Services provides centralized, non- activities for the purpose of collective partisan research and issue analysis for the bargaining or other mutual aid or protection.” Legislative Branch. Committee Services does not This includes the right to strike, which is provide legal advice. Background Briefs are intended protected by the NLRA if they are determined to to give the reader a general understanding of a be lawful. The determination may depend on the subject, and are based on information which is purpose of the strike, its timing, or strikers’ current as of the date of publication. Legislative, executive, and judicial actions subsequent to conduct and such issues often have to be decided publication may affect the timeliness of the by the NLRB. information.

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