Public Employee Rights and Benefits

ORS 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 (Rights of public employees to join labor organizations).

(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 (Definitions for ORS 243.650 to 243.806) to 243.806 (Agreement authorizing public employer to make deductions from salary or wages of public employee).

(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 (Definitions for ORS 243.650 to 243.806) to 243.806 (Agreement authorizing public employer to make deductions from salary or wages of public employee).

(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 (Prohibition of actions by public employer to assist, promote or deter union organizing) (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 (Agreement authorizing public employer to make deductions from salary or wages of public employee).

(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 (Definitions for ORS 243.650 to 243.806) to 243.806 (Agreement authorizing public employer to make deductions from salary or wages of public employee).

(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 (Definitions for ORS 243.650 to 243.806) to 243.806 (Agreement authorizing public employer to make deductions from salary or wages of public employee).

(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.

(3)

It is an unfair labor practice for any labor organization to engage in unconventional strike activity not protected for private sector employees under the National Labor Relations Act on June 6, 1995. This provision applies to sitdown, slowdown, rolling, intermittent or on-and-off again strikes.

(4)

It is an unfair labor practice for a labor organization or its agents to picket or cause, induce, or encourage to be picketed, or threaten to engage in such activity, at the residence or business premises of any individual who is a member of the governing body of a public employer, with respect to a dispute over a collective bargaining agreement or negotiations over employment relations, if an objective or effect of such picketing is to induce another person to cease doing business with the governing body member’s business or to cease handling, transporting or dealing in goods or services produced at the governing body’s business. For purposes of this subsection, a member of the Legislative Assembly is a member of the governing body of a public employer when the collective bargaining negotiation or dispute is between the State of Oregon and a labor organization. The Governor and other statewide elected officials are not considered members of a governing body for purposes of this subsection. Nothing in this subsection may be interpreted or applied in a manner that violates the right of free speech and assembly as protected by the Constitution of the United States or the Constitution of the State of Oregon.

(5)

It is not an unfair labor practice or a violation of subsection (2)(a) of this section for the exclusive representative of an appropriate bargaining unit to charge the following employees in the unit reasonable fees and costs for representation that are unrelated to the negotiation of a collective bargaining agreement, provided that the employees are not members of the labor organization that is the exclusive representative and have not voluntarily entered into a fair-share agreement:

(a)

A police officer of a city or municipal police department;

(b)

A sheriff or deputy sheriff; or

(c)

A police officer commissioned by a university under ORS 352.121 (University police departments and officers) or 353.125 (Creation of police department and commission of police officers).

(6)

An injured party may file a written complaint with the Employment Relations Board not later than 180 days following the occurrence of an unfair labor practice. For each unfair labor practice complaint filed, a fee of $300 is imposed. For each answer to an unfair labor practice complaint filed with the board, a fee of $300 is imposed. The board may allow any other person to intervene in the proceeding and to present testimony. A person allowed to intervene shall pay a fee of $300 to the board. The board may, in its discretion, order fee reimbursement to the prevailing party in any case in which the complaint or answer is found to have been frivolous or filed in bad faith. The board shall deposit fees received under this section to the credit of the Employment Relations Board Administrative Account. [1973 c.536 §4; 1995 c.286 §2; 2007 c.296 §1; 2011 c.593 §2; 2013 c.663 §6; 2019 c.429 §11; 2019 c.439 §1]

Notes of Decisions

Appropriate test to be applied in determining whether proposed subject is "condition of employment" and therefore mandatory subject for bargaining is to balance educational policy involved against effect that subject has on teacher's employment. Sutherlin Educ. Assn. v. Sutherlin Sch. Dist., 25 Or App 85, 548 P2d 204 (1976)

Public employer's refusal to negotiate proposed "union shop" agreement was not unfair labor practice, for such agreements are prohibited subject of bargaining. OSEA v. Oregon State University, 30 Or App 757, 567 P2d 1085 (1977), Sup Ct review denied

Employment Relations Board has exclusive jurisdiction to enforce arbitration agreements arising out of public-sector labor relations, notwithstanding [former] ORS 33.230. Smith v. State of Oregon, 31 Or App 15, 569 P2d 677 (1977), Sup Ct review denied

Although university's increase in price of reduced-price-meals provided to cafeteria employes constituted mandatory subject for collective bargaining, local union's failure to request bargaining on meal price increase until after contract was signed constituted waiver of its right to complain that employer had refused to discuss mandatory subject for collective bargaining. AFSCME v. Board of Higher Education, 31 Or App 251, 570 P2d 388 (1977)

Evidence was sufficient to support Employment Relations Board finding that nonrenewal of teacher's contract by school district was caused by teacher's union activity and constituted unfair labor practice. Harrison v. Central Linn School District, 34 Or App 221, 578 P2d 460 (1978), Sup Ct review denied

It was unfair labor practice for school district to refuse to comply with arbitrator's award of reinstatement and back pay in grievance proceeding under collective bargaining agreement, which provided for "binding" arbitration of grievances and limited authority of arbitrator to "determining whether or not there has been violation of law, policy, rule, or regulation in question." Corvallis Sch. Dist. v. Corvallis Education Assn., 35 Or App 531, 581 P2d 972 (1978)

Although minority union could, pursuant to ORS 243.782, represent individual petitioners in suit against majority union alleging wrongful withholding of fair share payments, minority union failed to plead or prove that it had suffered any direct injury from conduct complained of, and thus lacked standing as "injured party" to proceed on its own behalf. Oregon City Federation of Teachers v. OCEA, 36 Or App 27, 584 P2d 303 (1978)

In suit against majority union alleging wrongful withholding of fair share payments, teacher had standing to challenge only portions of salary withheld within 180 days preceding filing of complaint. Oregon City Federation of Teachers v. OCEA, 36 Or App 27, 584 P2d 303 (1978)

Where conduct constituting unfair labor practice, if done with requisite intent, occurred within 180 days preceding filing of complaint under this section, evidence of events occurring outside that period was admissible to demonstrate intent. Smith v. Employment Div., 38 Or App 241, 589 P2d 1184 (1979)

Where no provision of collective bargaining agreement between school district and its teachers required arbitration of dismissals of probationary teachers, failure to arbitrate was not an unfair labor practice under this section. Ostrer v. Pine-Eagle School Dist., 40 Or App 265, 594 P2d 1296 (1979)

Where collective bargaining contract had expired and city had enacted ordinance designating fire captains as supervisory, city did not restrain exercise of union activity or interfere with administration of local firefighters' union by unilaterally removing fire captains from bargaining unit. Medford Firefighters Assn. v. City of Medford, 43 Or App 733, 605 P2d 289 (1979)

Where city did not fill vacant fire inspector position, it did not discriminate against union member by failing to promote him to position. Medford Firefighters Assn. v. City of Medford, 43 Or App 733, 605 P2d 289 (1979)

Where collective bargaining agreement contained "maintenance-of-membership" provision less restrictive than "fair share" provisions excepted under this section, employer enforcement of provision was not unfair labor practice. Stines v. OSEA, 287 Or 643, 601 P2d 799 (1979)

It was not abuse of discretion for Employment Relations Board to adopt and apply, in course of contested case, rule that it is "per se" violation of duty to bargain in good faith for employer to make unilateral change regarding mandatory bargaining subject while employer has duty to bargain. Wasco County v. AFSCME, 46 Or App 859, 613 P2d 1067 (1980)

Refusal to permit juvenile counselor appointed pursuant to [former] ORS 419.604 to pursue grievance procedure of county's collective bargaining agreement was not unfair labor practice under this section. Schmidt v. Jackson County Juv. Dept., 49 Or App 349, 619 P2d 1307 (1980)

Plaintiff's allegation that Oregon Public Employes Union breached its duty of fair representation constitutes unfair labor practice which is within exclusive jurisdiction of Employment Relations Board. Coleman v. Children's Services Division, 71 Or App 687, 694 P2d 555 (1984), Sup Ct review denied

Employment Relations Board may order public employer to enter binding arbitration with mixed unit of both employes allowed to strike and employes prohibited from striking as sanction for committing unfair labor practice after Board has separated mixed unit into two bargaining units. AFSCME Local 1246 v. Fairview Training Center, 81 Or App 165, 724 P2d 895 (1986)

Employer violated this section when it refused to sign agreement containing factfinder's precise language because both union and employer had accepted factfinder's recommendations and were unable to agree on other language. Cascade Bargaining Council v. Jefferson Cty. Sch. Dist., 83 Or App 418, 732 P2d 54 (1987)

Collective bargaining agreement is enforceable against employer where employer has given negotiator sufficient authority, notwithstanding school board failure to ratify agreement. South Benton Ed. Assn. v. Monroe Union High, 83 Or App 425, 732 P2d 58 (1987), Sup Ct review denied

Where city council decided to contract out custodial services and communicated directly with affected employe regarding impact of that decision, city committed unfair labor practice. AFSCME Local 2975 v. City of Corvallis, 90 Or App 372, 752 P2d 860 (1988)

Employment Relations Board's conclusion that "period of negotiations" began when city gave union notice of decision to contract out services was consistent with legislative policy and was correct. AFSCME Local 2975 v. City of Corvallis, 90 Or App 372, 752 P2d 860 (1988)

Employment Relations Board erred by applying objective "reasonable employer" test to determine whether employe's discharge complied with "just cause" provision of collective bargaining agreement without first determining whether procedures referred to in provisions were applicable and, if so, had been satisfactorily followed. OSEA v. Rainier School Dist. 13, 91 Or App 42, 754 P2d 9 (1988)

Employer's refusal to agree to same terms with successor union as it had previously agreed to with predecessor union in tentative agreement is not per se unlawful, however, such refusal may be evidence of bad faith bargaining, unlawful discrimination or improper assistance. AFSCME Council 75 v. Oregon Health Sciences Univ, 91 Or App 365, 755 P2d 141 (1988)

Employment Relations Board's jurisdiction over wage claims arising from public employees' arbitration award was primary, even if not exclusive, and issues of whether arbitration award was final and binding and whether employer refused or failed to comply with any provision of it were issues for board in first instance, so although not entirely without jurisdiction over dispute, circuit court should have abated claims until Employment Relations Board issued order for circuit court to enforce. Tracy v. Lane County, 305 Or 378, 752 P2d 300 (1988)

City of Salem's refusal to bargain collectively in good faith concerning its adoption of reserve police officer program was an unfair labor practice under this section. Salem Police Employees Union v. City of Salem, 308 Or 383, 781 P2d 335 (1989)

Records of employees not subject to same provisions as claimant are not relevant to case and do not support claim that district refused to bargain in good faith. OSEA v. Salem-Keizer School Dist. 24J, 103 Or App 221, 797 P2d 375 (1990)

Employment Relations Board Correctly Interpreted Provisions of Collective Bargaining Agreement and Substantial Evidence Supported Board's Conclusions That

1) employee's dismissal was based on course of conduct; 2) employee was given progressive discipline; and 3) disciplinary notices sent to employee complied with provisions of collective bargaining agreement. OSEA v. Rainier School Dist. No. 13, 311 Or 188, 808 P2d 83 (1991)

Where union committed unfair labor practice by collecting "fair share" payments from nonunion public employees without complying with safeguards instituted to protect employees' rights of free speech and association, restitution was appropriate remedy. Elvin v. OPEU, 313 Or 165, 832 P2d 36 (1992)

County did not violate this statute by refusing to turn over information about hiring process for particular position when complainant failed to show that information was relevant to any issue in grievance proceeding. Lane County Public Works Assn. v. Lane County, 118 Or App 46, 846 P2d 414 (1993)

Where annual assessment was payable in installments during year, 180-day filing period limitation was measured from assessment date for each installment payment. Blackburn v. Oregon Education Assn., 127 Or App 607, 873 P2d 485 (1994), Sup Ct review denied

Change required to comply with minimum requirements of law is not automatically exempt from duty to bargain. Washington Cty. Police Officers v. Washington Cty., 321 Or 430, 900 P2d 483 (1995)

Where ERB has issued order requiring specific act of compliance within definite time, action taken to comply with order is not subject to bargaining. Washington Cty. Police Officers v. Washington Cty., 321 Or 430, 900 P2d 483 (1995)

In cases involving alleged refusal to provide information, use of probable or potential relevance test is within discretion allowed to board. Olney School District 11 v. Olney Education Assn., 145 Or App 578, 931 P2d 804 (1997)

to Establish Prima Facie Case Based On Inference That Employment Action Is "Because Of" Protected Activity, Complainant Must Show

1) exercise of protected activity; 2) adverse employment action; and 3) sufficient causal connection between activity and adverse action. Portland Association of Teachers v. Multnomah School District No. 1, 171 Or App 616, 16 P3d 1189 (2000)

Prima facie showing that employment action was "because of" protected activity does not shift burden of proof to employer. Portland Association of Teachers v. Multnomah School District No. 1, 171 Or App 616, 16 P3d 1189 (2000)

Public employer can be injured party for purposes of unfair labor practice claim based on secondary picketing of public official's residence or business. Jefferson County v. Oregon Public Employees Union, 174 Or App 12, 23 P3d 401 (2001)

Employment Relations Board has authority to determine whether contractual provision of collective bargaining agreement conflicts with federal and state laws prohibiting unlawful employment discrimination. PSU Association of University Professors v. PSU, 240 Or App 108, 246 P3d 1162 (2010), aff'd 352 Or 697, 291 P3d 658 (2012)

Time limitation for filing written complaint with Employee Relations Board begins to run when public employee, labor organization or public employer knows or reasonably should know that unfair labor practice has occurred. Rogue River Education Association v. Rogue River School District No. 35, 244 Or App 181, 260 P3d 619 (2011)

Terms of contract asserted as defense to claim that employer refused to bargain collectively in good faith are subject to analysis of whether employee properly waived those terms. Association of Oregon Corrections Employees v. State of Oregon, 353 Or 170, 295 P3d 38 (2013)

"Reasonable belief" standard is proper standard for determining which individuals constitute "public employer representative" under ORS 243.650. Therefore, when employees of public employer reasonably believe that individual acted on behalf of public employer in committing unfair labor practice, that individual constitutes "public employer representative" under ORS 243.650 such that employer may be held liable for individual's conduct under this section. AFSCME Council 75 v. City of Lebanon, 360 Or 809, 388 P3d 1028 (2017)

University's obligation to bargain collectively in good faith with labor exclusive representative included obligation to promptly provide information relevant to grievance that could not be excused by invoking confidentiality of information under Family Educational Rights and Privacy Act, 20 U.S.C. 1232g, when Act requires accommodation of request and university made no effort toward such accommodation. Service Employees Int'l Union Local 503 v. University of Oregon, 291 Or App 109, 419 P3d 779 (2018)

Atty. Gen. Opinions

Authority of teachers to strike during contract year in absence of collective bargaining agreements, and to engage in picketing, (1975) Vol 37, p 732; harassment by employer of individuals organizing a union, (1977) Vol 38, p 919

Law Review Citations

19 WLR 75 (1983); 68 OLR 156 (1989); 28 WLR 259 (1992); 32 WLR 707 (1996)

§§ 243.650 to 243.782

See also annotations under ORS 243.711 to 243.760 in permanent edition.

Notes of Decisions

Savings clause in chapter 536, Oregon Laws 1973, did not prevent application of expanded bargaining rights to collective bargaining agreement then in force. Redmond Sch. Dist. No. 2J v. Pub. Employe Relations Bd., 19 Or App 212, 527 P2d 143 (1974)

The board had authority to review, section by section, a city ordinance governing labor relations between the city and its employes and to hold invalid those provisions purporting to govern matters of predominantly state-wide concern and which were in conflict with the 1973 Act. City of Beaverton v. Intl. Assn. of Fire Fighters, 20 Or App 293, 531 P2d 730 (1975), Sup Ct review denied

Board order, defining appropriate bargaining unit and ordering representation election, was interlocutory in nature and was not "final order" subject to judicial review within meaning of ORS 183.480. City of Hermiston v. Employment Relations Board, 280 Or 291, 570 P2d 663 (1977)

Employment Relations Board's policy of adhering to arbitration decisions in subsequent related proceedings advances legislative purpose, and is proper exercise of authority to administer this act. Siegel v. Gresham Grade Teachers Association, 32 Or App 541, 574 P2d 692 (1978)

Public Employes' Collective Bargaining Law did not bar state agency from using state time and funds to campaign against labor organization in representation election. OSEA v. Department of Commerce, 34 Or App 727, 579 P2d 872 (1978)

Juvenile counselor appointed pursuant to [former] ORS 419.604 did not acquire collective bargaining rights granted by these sections where there was no showing that juvenile court judge had expressly authorized employer representatives to bargain on counselor's behalf concerning terms and conditions of his employment. Schmidt v. Jackson County Juv. Dept., 49 Or App 349, 619 P2d 1307 (1980)

Employment Relations Board employed scope of review contrary to Public Employe Relations Act when it reviewed merits of arbitration award rather than only its repugnancy to Public Employe Relations Act. Willamina Ed. Assoc. v. Willamina Sch. Dist. 30J, 50 Or App 195, 623 P2d 658 (1981)

Since Public Employe Collective Bargaining Act is general law addressed primarily to substantive social, economic and other regulatory objectives of this state which do not affect freedom of local community to choose its own political form, it does not mandate structural and organizational arrangements of local governments contrary to Oregon Constitution, Article XI, section 2. City of Roseburg v. Roseburg City Firefighters, 292 Or 266, 639 P2d 90 (1981)

State's decision to enact Public Employe Collective Bargaining Act supersedes city's power to allow its voters to arbitrate unresolved labor disputes and grant of power by Oregon Constitution, Article IV, section 1 to legislate by popular vote does not affect state's power in this area. City of Roseburg v. Roseburg City Firefighters, 292 Or 266, 639 P2d 90 (1981)

Arbitrator's failure to conclude that school district violated collective bargaining agreement by violating statutory requirements incorporated into agreement was not sufficiently egregious to be reversible as being "repugnant" to act. Eugene Educ. Assoc. v. Eugene School Dist 4J, 58 Or App 140, 648 P2d 60 (1982)

Employment Relations Board formulation of test for review of arbitration awards in enforcement proceedings which would permit enforcement of arbitrator's award unless (1) parties did not, in a written contract, agree to accept such an award as final and binding or (2) enforcement of the award would be contrary to public policy, was consistent with policies of Public Employe Collective Bargaining Act. Willamina Sch. Dist. 30J v. Willamina Ed. Assn., 60 Or App 629, 655 P2d 189 (1982)

Public Employe Collective Bargaining Act requirement that juvenile court judge bargain in good faith with representatives of juvenile counselors and refrain from establishing terms and conditions of counselors' employment in violation of applicable contractual provisions did not constitute an undue burden or interference with his judicial functions under [former] ORS 419.604 or the separation of powers provision contained in Article III, section 1 of the Oregon Constitution. Circuit Court v. AFSCME, 61 Or App 311, 657 P2d 1237 (1983), aff'd 295 Or 542, 669 P2d 314 (1983)

Public Employe Collective Bargaining Act applies to the Judicial Department and is not inconsistent with ORS 1.002 or 1.008. Lent v. ERB, 63 Or App 400, 664 P2d 1110 (1983), Sup Ct review denied

Employment Relations Board did not exceed statutory authority under Public Employes Collective Bargaining Act in designating appropriate bargaining unit which consists of police dispatchers who are employes who can strike and police officers who are forbidden from striking. City of Canby v. Canby Police Association, 68 Or App 317, 680 P2d 1033 (1984), Sup Ct review denied

Statutory purpose to provide uniform basis for employe organizing and bargaining would be subverted by holding that statute authorizing county civil service system supersedes collective bargaining required by this Act. AFSCME v. Clackamas County, 69 Or App 488, 687 P2d 1102 (1984)

Board had authority to order restitution where union collected "fair share" payments from nonunion public employees without complying with safeguards instituted to protect employees' rights of free speech and association. Elvin v. OPEU, 313 Or 165, 832 P2d 36 (1992)

Where public employees brought action for negligent misrepresentation and unjust enrichment against county employer, claims were not within jurisdiction of Employment Relations Board because claims were common law issues rather than public labor dispute. Black v. Coos County, 288 Or App 25, 405 P3d 178 (2017)

Atty. Gen. Opinions

School law on mediation as an exclusive procedure, (1971) Vol 35, p 961; seniority as a related economic issue, (1972) Vol 35, p 1134; legality of binding arbitration in public employment collective bargaining, (1972) Vol 36, p 18; validity of collective bargaining agreements between county intermediate education district and local education association on transfer of sick leave, (1975) Vol 37, p 328; authority of teachers to strike during contract year in absence of collective bargaining agreements, and to engage in picketing, (1975) Vol 37, p 732

Law Review Citations

51 OLR 7-69 (1971); 54 OLR 337-371 (1975); 56 OLR 457 (1977); 21 WLR 454 (1985); 70 OLR 969 (1991); 28 WLR 259 (1992); 32 WLR 69, 707 (1996)

Chapter 243

Notes of Decisions

Effect of Public Employe Relations Act is to modify authority of Personnel Division so that, while division retains responsibility for establishing general job salary grades and classifications, specific salary within each range which is paid to employe in public employe bargaining unit is subject to negotiation or arbitration under terms of this chapter. AFSCME v. Executive Dept., 52 Or App 457, 628 P2d 1228 (1981), Sup Ct review denied

Provision of collective bargaining agreement giving present employes lateral transfer rights was valid under ORS 240.321 and fact that its implementation resulted in male succeeding female employe did not violate state affirmative action statutes. State Executive Dept. v. OPEU, 91 Or App 124, 754 P2d 582 (1988)

Atty. Gen. Opinions

State agencies paying carpooling employes' parking fees, (1974) Vol 36, p 1015

Law Review Citations

51 OLR 23, 44 (1971)


Source

Last accessed
Jun. 26, 2021