Public Employee Rights and Benefits

ORS 243.676
Processing of unfair labor practice complaints

  • civil penalties


(1)

Whenever a written complaint is filed alleging that any person has engaged in or is engaging in any unfair labor practice listed in ORS 243.672 (Unfair labor practices) (1) to (4) and 243.752 (Arbitration decision final), the Employment Relations Board or its agent shall:

(a)

Cause to be served upon such person a copy of the complaint;

(b)

Investigate the complaint to determine if a hearing on the unfair labor practice charge is warranted. If the investigation reveals that no issue of fact or law exists, the board may dismiss the complaint; and

(c)

Set the matter for hearing if the board finds in its investigation made pursuant to paragraph (b) of this subsection that an issue of fact or law exists. The hearing shall be before the board or an agent of the board not more than 20 days after a copy of the complaint has been served on the person.

(2)

Where, as a result of the hearing required pursuant to subsection (1)(c) of this section, the board finds that any person named in the complaint has engaged in or is engaging in any unfair labor practice charged in the complaint, the board shall:

(a)

State its findings of fact;

(b)

Issue and cause to be served on such person an order that the person cease and desist from the unfair labor practice;

(c)

Take such affirmative action, including but not limited to the reinstatement of employees with or without back pay, as necessary to effectuate the purposes of ORS 240.060 (Employment Relations Board), 240.065 (Appointment), 240.080 (Chairperson appointed by Governor), 240.123 (Board personnel), 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) and 341.290 (General powers);

(d)

Designate the amount and award representation costs, if any, to the prevailing party; and

(e)

Designate the amount and award attorney fees, if any, to the prevailing party on appeal, including proceedings for Supreme Court review, of a board order.

(3)

Where the board finds that the person named in the complaint has not engaged in or is not engaging in an unfair labor practice, the board shall:

(a)

Issue an order dismissing the complaint; and

(b)

Designate the amount and award representation costs, if any, to the prevailing party.

(4)

(a) The board may award a civil penalty to any person as a result of an unfair labor practice complaint hearing, in the aggregate amount of up to $1,000 per case, without regard to attorney fees, if:

(A)

The complaint has been affirmed pursuant to subsection (2) of this section and the board finds that the person who has committed, or who is engaging, in an unfair labor practice has done so repetitively, knowing that the action taken was an unfair labor practice and took the action disregarding this knowledge, or that the action constituting the unfair labor practice was egregious; or

(B)

The complaint has been dismissed pursuant to subsection (3) of this section, and that the complaint was frivolously filed, or filed with the intent to harass the other person, or both.

(b)

Notwithstanding paragraph (a) of this subsection, if the board finds that a public employer named in the complaint violated ORS 243.670 (Prohibition of actions by public employer to assist, promote or deter union organizing) (2), the board shall impose a civil penalty equal to triple the amount of funds the public employer expended to assist, promote or deter union organizing.

(5)

As used in subsections (1) to (4) of this section, “person” includes but is not limited to individuals, labor organizations, associations and public employers. [1973 c.536 §5; 1979 c.219 §1; 1983 c.504 §1; 1983 c.559 §1; 2013 c.663 §7; 2019 c.429 §12; 2019 c.439 §2]

See also annotations under ORS 243.745 in permanent edition.

Notes of Decisions

The Employment Relations Board has a duty to determine whether a labor agreement requires that certain complaints be processed as grievances. Portland Assn. of Teachers v. School Dist. 1, 27 Or App 247, 555 P2d 943 (1976)

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

Employment Relations Board, not Court of Appeals, has initial authority to determine what costs and fees, if any, are awarded for proceedings both before ERB and on judicial review in an unfair labor practice case. Executive Department v. FOPPO, 94 Or App 754, 767 P2d 112 (1989)

This section does not prevent Employment Relations Board from exercising remedies other than penalty or imposing sanctions to achieve purposes of Public Employees Collective Bargaining Act. Elvin v. OPEU, 102 Or App 159, 793 P2d 338 (1990), aff'd 313 Or 165, 832 P2d 36 (1992)

Employment Relations Board must investigate complaint but if it finds no issue of fact or law, it may dismiss complaint without hearing. OSEA v. Salem-Keizer School Dist. 24J, 103 Or App 221, 797 P2d 375 (1990)

Employment Relations Board is required to interpret collective bargaining agreements and should do so in same manner and pursuant to same rules of construction as courts apply in construing contracts under common law. OSEA v. Rainier School Dist. No. 13, 311 Or 188, 808 P2d 83 (1991)

Employment Relations Board has discretion to impose civil penalty. Lane County Public Works Assn. v. Lane County, 118 Or App 46, 846 P2d 414 (1993)

Plaintiff cannot avoid exclusive jurisdiction of Employment Relations Board to determine existence of unfair labor practice by alleging unfair practice as element of tort claim. Ahern v. Oregon Public Employees Union, 329 Or 428, 988 P2d 364 (1999)

Atty. Gen. Opinions

Information concerning allegations of unfair labor practices of public record, (1976) Vol 38, p 467

§§ 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