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Union Unlawfully Recorded Bargaining Sessions Over Objections of Oregon Public Employer

June 17, 2014

By Daniel L. Rowan

PUBLIC SECTOR LABOR NOTEBOOK

On June 16, 2014 the Oregon Employment Relations Board (ERB) held that the Washington County Dispatchers Association violated the duty to bargain in good faith when its bargaining team demanded to record collective bargaining negotiations with the Washington County Consolidated Communications Agency (WCCCA). Because recording is a permissive subject of bargaining, ERB concluded that neither side may record negotiations over the opposing party’s objections. ERB also dismissed the union’s claim that WCCCA committed an unfair labor practice when it refused to continue bargaining so long as the union insisted upon recording bargaining sessions. (Bullard Law represented WCCCA before the ERB.)

Underlying Dispute

The dispute arose at the outset of negotiations between WCCCA and the union. During the first session the union had proposed electronic recording as part of the ground rules. At the second session, WCCCA’s bargaining team rejected this proposal and the parties substituted alternative language. However, later in the second session, the union’s bargaining team stated that the union intended to record all future bargaining despite the parties’ ground rules. The union argued that under Oregon law it had a right to record bargaining sessions without employer consent. WCCCA’s bargaining team stated that it needed time to consider the union’s position, which resulted in the end of the second bargaining session.


Subsequent communications between the parties made it clear that they had very different opinions with respect to the union’s contention that it had a right to record bargaining sessions without employer consent. The union filed an unfair labor practice charge based on WCCCA’s refusal to bargain if the sessions were recorded. After the filing of the ULP, WCCCA decided to resume bargaining under protest while the ULP was still pending. As a result, bargaining sessions resumed and the union recorded sessions over WCCCA’s objections. Further, WCCCA filed its own charge against the union.

ERB Decision for WCCCA

The competing ULPs proceeded to hearing before an administrative law judge. The ALJ issued a proposed order finding that the union had violated the ground rules and the duty to bargaining in good faith. The union filed objections to the proposed order and the ERB heard oral argument from the parties. After oral argument, ERB gave interested parties the opportunity to file amicus curiae briefs on the issues raised by the case. Several different public-employer organizations filed briefs supporting WCCCA’s position. 

ERB issued a Final Order in favor of WCCCA. Relying on long-settled precedent from the private sector, ERB concluded that a party demanding to record bargaining sessions is conditioning bargaining on a permissive subject. ERB previously has held that ground rules, which cover the mechanics of bargaining and other threshold issues, are permissive. Since recording bargaining involved a permissive subject and a party cannot be forced to bargain over permissive subjects, the union’s insistence on recording was unlawful.

Private sector precedent, cited by ERB, reasoned that unilateral recording undermines productive bargaining and tends to inhibit full and frank discussion. Parties would be tempted to “talk for the record” rather than work towards an agreement. Accepting this reasoning, ERB saw little benefit in recording bargaining sessions and found that the harm to the bargaining process would outweigh any potential advantage.

ERB also rejected the union’s claim that it had an independent and unilateral right to record bargaining sessions. Regarding the Oregon Public Meeting Law, ERB stated that negotiations conducted using a private negotiator are not public meetings under Oregon law. Further, regarding Oregon’s criminal statutes, ERB stated that they do not affect the union’s duty under the Public Employee Collective Bargaining Act to bargain in good faith.

Practical Considerations

Although ERB’s Final Order is less than fourteen pages, it contains some interesting points that extend beyond the issue of recording or even bargaining mechanics. First, this case reflects a recent pattern of ERB adopting precedent from the private sector. Private sector precedent has always had some sway given that the PECBA is modeled on the National Labor Relations Act. However, prior Boards were quicker to distinguish or discount private sector decisions. In this case, ERB cited the fact that the private sector precedent is long-standing as an indication of its validity. “[T]hat such precedent has withstood the changes of time, the workplace, and labor-management practices speaks to its soundness and validity.”

Second, again mirroring private sector precedent, the majority concluded that the duty to bargain is suspended where the opposing party conditions bargaining upon a permissive subject or engages in other ongoing unfair labor practices. A word of caution, however—not all unlawful conduct by the opposing bargaining team will suspend the duty to bargain.

Third, ERB’s decision is consistent with the policy goals of PECBA that parties should reach agreement through robust negotiations. Regardless of the actor, ERB will have little patience for conduct that interferes with the bargaining process. In this case, WCCCA’s bargaining team proceeded appropriately. It examined the issue when it arose at the table, considered the union’s position, and attempted to resolve the issue informally. This conduct at the table helped to convince ERB that WCCCA had acted in good faith. This was in stark contrast to the union’s insistence upon recording, which caused negotiations to break down before they began and lead to ERB’s finding that the union had committed an unfair labor practice.

Bullard Law will continue to monitor these and other developments affecting public employers. Please also feel free to contact us anytime with any questions about these matters or any other labor, employment, or benefits issues.

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