Chapter 141
AN ACT
SB 400
Relating to employment relations in public collective bargaining;
creating new provisions; amending ORS 243.650; and repealing sections 3a and
6a, chapter 144, Oregon Laws 2007 (Enrolled House Bill 2372).
Be It Enacted by the People of
the State of
SECTION 1.
ORS 243.650 is amended to read:
243.650. As used in ORS
243.650 to 243.782, unless the context requires otherwise:
(1) “Appropriate
bargaining unit” means the unit designated by the Employment Relations Board or
voluntarily recognized by the public employer to be appropriate for collective
bargaining. However, an appropriate bargaining unit cannot include both
academically licensed and unlicensed or nonacademically licensed school
employees. Academically licensed units may include but are not limited to
teachers, nurses, counselors, therapists, psychologists, child development
specialists and similar positions. This limitation [shall] does not apply to any bargaining unit certified or
recognized prior to June 6, 1995, or to any school district with fewer than 50
employees.
(2) “Board” means the
Employment Relations Board.
(3) “Certification”
means official recognition by the board that a labor organization is the
exclusive representative for all of the employees in the appropriate bargaining
unit.
(4) “Collective
bargaining” means the performance of the mutual obligation of a public employer
and the representative of its employees to meet at reasonable times and confer
in good faith with respect to employment relations for the purpose of
negotiations concerning mandatory subjects of bargaining, to meet and confer in
good faith in accordance with law with respect to any dispute concerning the
interpretation or application of a collective bargaining agreement, and to
execute written contracts incorporating agreements that have been reached on
behalf of the public employer and the employees in the bargaining unit covered
by such negotiations. The obligation to meet and negotiate does not compel either
party to agree to a proposal or require the making of a concession. [Nothing in] This subsection [shall] may not be construed to
prohibit a public employer and a certified or recognized representative of its
employees from discussing or executing written agreements regarding matters
other than mandatory subjects of bargaining that are not prohibited by law[, so] as long as there is mutual
agreement of the parties to discuss these matters, which are permissive
subjects of bargaining.
(5) “Compulsory arbitration”
means the procedure whereby parties involved in a labor dispute are required by
law to submit their differences to a third party for a final and binding
decision.
(6) “Confidential
employee” means one who assists and acts in a confidential capacity to a person
who formulates, determines and effectuates management policies in the area of
collective bargaining.
(7)(a) “Employment
relations” includes, but is not limited to, matters concerning direct or
indirect monetary benefits, hours, vacations, sick leave, grievance procedures
and other conditions of employment.
(b) “Employment
relations” does not include subjects determined to be permissive, nonmandatory
subjects of bargaining by the Employment Relations Board prior to June 6, 1995.
(c) After June 6, 1995, “employment
relations” [shall] does not
include subjects [which] that
the Employment Relations Board determines to have a greater impact on
management’s prerogative than on employee wages, hours, or other terms and
conditions of employment.
(d) “Employment
relations” [shall] does not
include subjects that have an insubstantial or de minimis effect on public
employee wages, hours, and other terms and conditions of employment.
(e) For school district
bargaining, “employment relations” [shall
expressly exclude] does not include class size, the school or
educational calendar, standards of performance or criteria for evaluation of
teachers, the school curriculum, reasonable dress, grooming and at-work
personal conduct requirements respecting smoking, gum chewing and similar
matters of personal conduct, the standards and procedures for student
discipline, the time between student classes, the selection, agendas and
decisions of 21st Century Schools Councils established under ORS 329.704, and
any other subject proposed that is permissive under paragraphs (b), (c) and (d)
of this subsection.
(f) For employee
bargaining involving employees covered by ORS 243.736, “employment relations”
includes safety issues that have an impact on the on-the-job safety of the
employees or staffing levels that have a significant impact on the on-the-job
safety of the employees.
[(f)] (g) For all other employee bargaining except school [districts] district bargaining and
except as provided in paragraph (f) of this subsection, “employment
relations” [expressly excludes] does
not include staffing levels and safety issues (except those staffing levels
and safety issues [which] that
have a direct and substantial effect on the on-the-job safety of public
employees), scheduling of services provided to the public, determination of the
minimum qualifications necessary for any position, criteria for evaluation or
performance appraisal, assignment of duties, workload when the effect on duties
is insubstantial, reasonable dress, grooming, and at-work personal conduct
requirements respecting smoking, gum chewing, and similar matters of personal
conduct at work, and any other subject proposed that is permissive under
paragraphs (b), (c) and (d) of this subsection.
(8) “Exclusive representative”
means the labor organization that, as a result of certification by the board or
recognition by the employer, has the right to be the collective bargaining
agent of all employees in an appropriate bargaining unit.
(9) “Fact-finding” means
identification of the major issues in a particular labor dispute by one or more
impartial individuals who review the positions of the parties, resolve factual
differences and make recommendations for settlement of the dispute.
(10) “Fair-share
agreement” means an agreement between the public employer and the recognized or
certified bargaining representative of public employees whereby employees who
are not members of the employee organization are required to make an
in-lieu-of-dues payment to an employee organization except as provided in ORS
243.666. Upon the filing with the board of a petition by 30 percent or more of
the employees in an appropriate bargaining unit covered by such union security
agreement declaring they desire that [such]
the agreement be rescinded, the board shall take a secret ballot of the
employees in [such] the unit
and certify the results thereof to the recognized or certified bargaining
representative and to the public employer. Unless a majority of the votes cast
in an election favor [such] the
union security agreement, the board shall certify deauthorization [thereof] of the agreement. A
petition for deauthorization of a union security agreement must be filed not
more than 90 calendar days after the collective bargaining agreement is executed.
Only one such election shall be conducted in any appropriate bargaining unit
during the term of a collective bargaining agreement between a public employer
and the recognized or certified bargaining representative.
(11) “Final offer” means
the proposed contract language and cost summary submitted to the mediator
within seven days of the declaration of impasse.
(12) “Labor dispute”
means any controversy concerning employment relations or concerning the
association or representation of persons in negotiating, fixing, maintaining,
changing, or seeking to arrange terms or conditions of employment relations,
regardless of whether the disputants stand in the proximate relation of
employer and employee.
(13) “Labor organization”
means any organization that has as one of its purposes representing employees
in their employment relations with public employers.
(14) “Last best offer
package” means the offer exchanged by parties not less than 14 days prior to
the date scheduled for an interest arbitration hearing.
(15) “Legislative body”
means the Legislative Assembly, the city council, the county commission and any
other board or commission empowered to levy taxes.
(16) “Managerial
employee” means an employee of the State of Oregon who possesses authority to
formulate and carry out management decisions or who represents management’s
interest by taking or effectively recommending discretionary actions that
control or implement employer policy, and who has discretion in the performance
of these management responsibilities beyond the routine discharge of duties. A “managerial
employee” need not act in a supervisory capacity in relation to other
employees. Notwithstanding this subsection, “managerial employee” [shall] may not be construed to
include faculty members at a community college, college or university.
(17) “Mediation” means
assistance by an impartial third party in reconciling a labor dispute between
the public employer and the exclusive representative regarding employment
relations.
(18) “Payment-in-lieu-of-dues”
means an assessment to defray the cost for services by the exclusive
representative in negotiations and contract administration of all persons in an
appropriate bargaining unit who are not members of the organization serving as
exclusive representative of the employees. The payment shall be equivalent to
regular union dues and assessments, if any, or shall be an amount agreed upon
by the public employer and the exclusive representative of the employees.
(19) “Public employee”
means an employee of a public employer but does not include elected officials,
persons appointed to serve on boards or commissions, incarcerated persons
working under section 41, Article I of the Oregon Constitution, or persons who
are confidential employees, supervisory employees or managerial employees.
(20) “Public employer”
means the State of Oregon, and the following political subdivisions: Cities,
counties, community colleges, school districts, special districts, mass transit
districts, metropolitan service districts, public service corporations or
municipal corporations and public and quasi-public corporations.
(21) “Public employer
representative” includes any individual or individuals specifically designated
by the public employer to act in its interests in all matters dealing with
employee representation, collective bargaining and related issues.
(22) “Strike” means a
public employee’s refusal in concerted action with others to report for duty,
or his or her willful absence from his or her position, or his or her stoppage
of work, or his or her absence in whole or in part from the full, faithful or
proper performance of his or her duties of employment, for the purpose of
inducing, influencing or coercing a change in the conditions, compensation,
rights, privileges or obligations of public employment; however, nothing shall
limit or impair the right of any public employee to lawfully express or
communicate a complaint or opinion on any matter related to the conditions of
employment.
(23) “Supervisory
employee” means any individual having authority in the interest of the employer
to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward
or discipline other employees, or responsibly to direct them, or to adjust
their grievances, or effectively to recommend such action, if in connection
therewith, the exercise of [such] the
authority is not of a merely routine or clerical nature but requires the use of
independent judgment. Failure to assert supervisory status in any Employment
Relations Board proceeding or in negotiations for any collective bargaining
agreement [shall] does not
thereafter prevent assertion of supervisory status in any subsequent board
proceeding or contract negotiation. Notwithstanding the provisions of this
subsection, no nurse, charge nurse or similar nursing position shall be deemed
to be supervisory unless [such] the
position has traditionally been classified as supervisory.
(24) “Unfair labor
practice” means the commission of an act designated an unfair labor practice in
ORS 243.672.
(25) “Voluntary
arbitration” means the procedure whereby parties involved in a labor dispute
mutually agree to submit their differences to a third party for a final and
binding decision.
SECTION 1a. If
House Bill 2372 becomes law, sections 3a (amending ORS 243.650) and 6a, chapter
144,
243.650. As used in ORS
243.650 to 243.782, unless the context requires otherwise:
(1) “Appropriate
bargaining unit” means the unit designated by the Employment Relations Board or
voluntarily recognized by the public employer to be appropriate for collective
bargaining. However, an appropriate bargaining unit may not include both
academically licensed and unlicensed or nonacademically licensed school
employees. Academically licensed units may include but are not limited to
teachers, nurses, counselors, therapists, psychologists, child development
specialists and similar positions. This limitation does not apply to any
bargaining unit certified or recognized prior to June 6, 1995, or to any school
district with fewer than 50 employees.
(2) “Board” means the
Employment Relations Board.
(3) “Certification”
means official recognition by the board that a labor organization is the
exclusive representative for all of the employees in the appropriate bargaining
unit.
(4) “Collective
bargaining” means the performance of the mutual obligation of a public employer
and the representative of its employees to meet at reasonable times and confer
in good faith with respect to employment relations for the purpose of
negotiations concerning mandatory subjects of bargaining, to meet and confer in
good faith in accordance with law with respect to any dispute concerning the
interpretation or application of a collective bargaining agreement, and to
execute written contracts incorporating agreements that have been reached on
behalf of the public employer and the employees in the bargaining unit covered
by such negotiations. The obligation to meet and negotiate does not compel
either party to agree to a proposal or require the making of a concession. This
subsection may not be construed to prohibit a public employer and a certified
or recognized representative of its employees from discussing or executing
written agreements regarding matters other than mandatory subjects of
bargaining that are not prohibited by law[,
so] as long as there is mutual agreement of the parties to discuss
these matters, which are permissive subjects of bargaining.
(5) “Compulsory
arbitration” means the procedure whereby parties involved in a labor dispute
are required by law to submit their differences to a third party for a final
and binding decision.
(6) “Confidential
employee” means one who assists and acts in a confidential capacity to a person
who formulates, determines and effectuates management policies in the area of
collective bargaining.
(7)(a) “Employment
relations” includes, but is not limited to, matters concerning direct or
indirect monetary benefits, hours, vacations, sick leave, grievance procedures
and other conditions of employment.
(b) “Employment
relations” does not include subjects determined to be permissive, nonmandatory
subjects of bargaining by the Employment Relations Board prior to June 6, 1995.
(c) After June 6, 1995, “employment
relations” does not include subjects [which]
that the Employment Relations Board determines to have a greater impact on
management’s prerogative than on employee wages, hours, or other terms and
conditions of employment.
(d) “Employment
relations” does not include subjects that have an insubstantial or de minimis
effect on public employee wages, hours, and other terms and conditions of
employment.
(e) For school district
bargaining, “employment relations” excludes class size, the school or
educational calendar, standards of performance or criteria for evaluation of
teachers, the school curriculum, reasonable dress, grooming and at-work
personal conduct requirements respecting smoking, gum chewing and similar
matters of personal conduct, the standards and procedures for student
discipline, the time between student classes, the selection, agendas and
decisions of 21st Century Schools Councils established under ORS 329.704,
requirements for expressing milk under ORS 653.077, and any other subject
proposed that is permissive under paragraphs (b), (c) and (d) of this
subsection.
(f) For employee
bargaining involving employees covered by ORS 243.736, “employment relations”
includes safety issues that have an impact on the on-the-job safety of the
employees or staffing levels that have a significant impact on the on-the-job
safety of the employees.
[(f)] (g) For all other employee bargaining except school [districts] district bargaining and
except as provided in paragraph (f) of this subsection, “employment
relations” excludes staffing levels and safety issues (except those staffing
levels and safety issues [which]
that have a direct and substantial effect on the on-the-job safety of
public employees), scheduling of services provided to the public, determination
of the minimum qualifications necessary for any position, criteria for
evaluation or performance appraisal, assignment of duties, workload when the
effect on duties is insubstantial, reasonable dress, grooming, and at-work
personal conduct requirements respecting smoking, gum chewing, and similar
matters of personal conduct at work, and any other subject proposed that is
permissive under paragraphs (b), (c) and (d) of this subsection.
(8) “Exclusive
representative” means the labor organization that, as a result of certification
by the board or recognition by the employer, has the right to be the collective
bargaining agent of all employees in an appropriate bargaining unit.
(9) “Fact-finding” means
identification of the major issues in a particular labor dispute by one or more
impartial individuals who review the positions of the parties, resolve factual
differences and make recommendations for settlement of the dispute.
(10) “Fair-share
agreement” means an agreement between the public employer and the recognized or
certified bargaining representative of public employees whereby employees who
are not members of the employee organization are required to make an
in-lieu-of-dues payment to an employee organization except as provided in ORS
243.666. Upon the filing with the board of a petition by 30 percent or more of
the employees in an appropriate bargaining unit covered by such union security
agreement declaring they desire that [such]
the agreement be rescinded, the board shall take a secret ballot of the
employees in [such] the unit
and certify the results thereof to the recognized or certified bargaining
representative and to the public employer. Unless a majority of the votes cast
in an election favor [such] the
union security agreement, the board shall certify deauthorization [thereof] of the agreement. A
petition for deauthorization of a union security agreement must be filed not
more than 90 calendar days after the collective bargaining agreement is
executed. Only one such election may be conducted in any appropriate bargaining
unit during the term of a collective bargaining agreement between a public
employer and the recognized or certified bargaining representative.
(11) “Final offer” means
the proposed contract language and cost summary submitted to the mediator
within seven days of the declaration of impasse.
(12) “Labor dispute” means
any controversy concerning employment relations or concerning the association
or representation of persons in negotiating, fixing, maintaining, changing, or
seeking to arrange terms or conditions of employment relations, regardless of
whether the disputants stand in the proximate relation of employer and
employee.
(13) “Labor organization”
means any organization that has as one of its purposes representing employees
in their employment relations with public employers.
(14) “Last best offer
package” means the offer exchanged by parties not less than 14 days prior to
the date scheduled for an interest arbitration hearing.
(15) “Legislative body”
means the Legislative Assembly, the city council, the county commission and any
other board or commission empowered to levy taxes.
(16) “Managerial
employee” means an employee of the State of Oregon who possesses authority to
formulate and carry out management decisions or who represents management’s
interest by taking or effectively recommending discretionary actions that
control or implement employer policy, and who has discretion in the performance
of these management responsibilities beyond the routine discharge of duties. A “managerial
employee” need not act in a supervisory capacity in relation to other employees.
Notwithstanding this subsection, “managerial employee” does not include faculty
members at a community college, college or university.
(17) “Mediation” means
assistance by an impartial third party in reconciling a labor dispute between
the public employer and the exclusive representative regarding employment
relations.
(18) “Payment-in-lieu-of-dues”
means an assessment to defray the cost for services by the exclusive
representative in negotiations and contract administration of all persons in an
appropriate bargaining unit who are not members of the organization serving as
exclusive representative of the employees. The payment must be equivalent to
regular union dues and assessments, if any, or must be an amount agreed upon by
the public employer and the exclusive representative of the employees.
(19) “Public employee”
means an employee of a public employer but does not include elected officials,
persons appointed to serve on boards or commissions, incarcerated persons
working under section 41, Article I of the Oregon Constitution, or persons who
are confidential employees, supervisory employees or managerial employees.
(20) “Public employer”
means the State of Oregon, and the following political subdivisions: Cities,
counties, community colleges, school districts, special districts, mass transit
districts, metropolitan service districts, public service corporations or
municipal corporations and public and quasi-public corporations.
(21) “Public employer
representative” includes any individual or individuals specifically designated
by the public employer to act in its interests in all matters dealing with
employee representation, collective bargaining and related issues.
(22) “Strike” means a
public employee’s refusal in concerted action with others to report for duty,
or his or her willful absence from his or her position, or his or her stoppage
of work, or his or her absence in whole or in part from the full, faithful or
proper performance of his or her duties of employment, for the purpose of inducing,
influencing or coercing a change in the conditions, compensation, rights,
privileges or obligations of public employment; however, nothing shall limit or
impair the right of any public employee to lawfully express or communicate a
complaint or opinion on any matter related to the conditions of employment.
(23) “Supervisory
employee” means any individual having authority in the interest of the employer
to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward
or discipline other employees, or responsibly to direct them, or to adjust
their grievances, or effectively to recommend such action, if in connection
therewith, the exercise of [such]
the authority is not of a merely routine or clerical nature but requires
the use of independent judgment. Failure to assert supervisory status in any
Employment Relations Board proceeding or in negotiations for any collective
bargaining agreement does not thereafter prevent assertion of supervisory
status in any subsequent board proceeding or contract negotiation.
Notwithstanding the provisions of this subsection, a nurse, charge nurse or
similar nursing position may not be deemed to be supervisory unless that
position has traditionally been classified as supervisory.
(24) “Unfair labor
practice” means the commission of an act designated an unfair labor practice in
ORS 243.672.
(25) “Voluntary
arbitration” means the procedure whereby parties involved in a labor dispute
mutually agree to submit their differences to a third party for a final and binding
decision.
SECTION 2. The
amendments to ORS 243.650 by section 1 of this 2007 Act apply only to
collective bargaining agreements entered into on or after the effective date of
this 2007 Act.
SECTION 2a.
If House Bill 2372 becomes law, section 2 of this 2007 Act is amended to read:
Sec. 2. The
amendments to ORS 243.650 by section [1]
1a of this 2007 Act apply only to collective bargaining agreements entered
into on or after the effective date of this 2007 Act.
Approved by the Governor May 16, 2007
Filed in the office of Secretary of State May 16, 2007
Effective date January 1, 2008
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