Bill Text: OR HB2847 | 2013 | Regular Session | Introduced

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Bill Title: Relating to the deadline for submission of a last best offer prior to an arbitration hearing in public employee collective bargaining.

Spectrum: Committee Bill

Status: (Failed) 2013-07-08 - In committee upon adjournment. [HB2847 Detail]

Download: Oregon-2013-HB2847-Introduced.html

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     77th OREGON LEGISLATIVE ASSEMBLY--2013 Regular Session

NOTE:  Matter within  { +  braces and plus signs + } in an
amended section is new. Matter within  { -  braces and minus
signs - } is existing law to be omitted. New sections are within
 { +  braces and plus signs + } .

LC 1405

                         House Bill 2847

Sponsored by COMMITTEE ON BUSINESS AND LABOR

                             SUMMARY

The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.

  Extends deadline for submission of last best offer in
arbitration hearing for public employee collective bargaining
from 14 calendar days prior to hearing to 35 calendar days prior
to hearing.

                        A BILL FOR AN ACT
Relating to the deadline for submission of a last best offer
  prior to an arbitration hearing in public employee collective
  bargaining; amending ORS 243.650 and 243.746.
Be It Enacted by the People of the State of Oregon:
  SECTION 1. ORS 243.746, as amended by section 1, chapter 878,
Oregon Laws 2009, is amended to read:
  243.746. (1) In carrying out the arbitration procedures
authorized in ORS 243.712 (2)(e), 243.726 (3)(c) and 243.742, the
public employer and the exclusive representative may select their
own arbitrator.
  (2) Where the parties have not selected their own arbitrator
within five days after notification by the Employment Relations
Board that arbitration is to be initiated, the board shall submit
to the parties a list of seven qualified, disinterested, unbiased
persons. A list of Oregon interest arbitrations and fact-findings
for which each person has issued an award shall be included. Each
party shall alternately strike three names from the list. The
order of striking shall be determined by lot. The remaining
individual shall be designated the 'arbitrator':
  (a) When the parties have not designated the arbitrator and
notified the board of their choice within five days after receipt
of the list, the board shall appoint the arbitrator from the
list.  However, if one of the parties strikes the names as
prescribed in this subsection and the other party fails to do so,
the board shall appoint the arbitrator only from the names
remaining on the list.
  (b) The concerns regarding the bias and qualifications of the
person designated by lot or by appointment may be challenged by a
petition filed directly with the board. A hearing shall be held
by the board within 10 days of filing of the petition and the
board shall issue a final and binding decision regarding the
person's neutrality within 10 days of the hearing.
  (3) The arbitrator shall establish dates and places of
hearings. Upon the request of either party or the arbitrator, the
board shall issue subpoenas. Not less than   { - 14 - }
 { + 35 + } calendar days prior to the date of the hearing, each
party shall submit to the other party a written last best offer
package on all unresolved mandatory subjects, and neither party
may change the last best offer package unless pursuant to
stipulation of the parties or as otherwise provided in this
subsection. The date set for the hearing may thereafter be
changed only for compelling reasons or by mutual consent of the
parties. If either party provides notice of a change in its
position within 24 hours of the   { - 14-day - }   { + 35-day + }
deadline, the other party will be allowed an additional 24 hours
to modify its position. The arbitrator may administer oaths and
shall afford all parties full opportunity to examine and
cross-examine all witnesses and to present any evidence pertinent
to the dispute.
  (4) Where there is no agreement between the parties, or where
there is an agreement but the parties have begun negotiations or
discussions looking to a new agreement or amendment of the
existing agreement, unresolved mandatory subjects submitted to
the arbitrator in the parties' last best offer packages shall be
decided by the arbitrator. Arbitrators shall base their findings
and opinions on these criteria giving first priority to paragraph
(a) of this subsection and secondary priority to paragraphs (b)
to (h) of this subsection as follows:
  (a) The interest and welfare of the public.
  (b) The reasonable financial ability of the unit of government
to meet the costs of the proposed contract giving due
consideration and weight to the other services, provided by, and
other priorities of, the unit of government as determined by the
governing body. A reasonable operating reserve against future
contingencies, which does not include funds in contemplation of
settlement of the labor dispute, shall not be considered as
available toward a settlement.
  (c) The ability of the unit of government to attract and retain
qualified personnel at the wage and benefit levels provided.
  (d) The overall compensation presently received by the
employees, including direct wage compensation, vacations,
holidays and other paid excused time, pensions, insurance,
benefits, and all other direct or indirect monetary benefits
received.
  (e) Comparison of the overall compensation of other employees
performing similar services with the same or other employees in
comparable communities. As used in this paragraph, 'comparable '
is limited to communities of the same or nearest population range
within Oregon. Notwithstanding the provisions of this paragraph,
the following additional definitions of 'comparable' apply in the
situations described as follows:
  (A) For any city with a population of more than 325,000, '
comparable' includes comparison to out-of-state cities of the
same or similar size;
  (B) For counties with a population of more than 400,000, '
comparable' includes comparison to out-of-state counties of the
same or similar size;
  (C) Except as otherwise provided in subparagraph (D) of this
paragraph, for the State of Oregon, 'comparable' includes
comparison to other states; and
  (D) For the Department of State Police troopers, ' comparable'
includes the base pay for city police officers employed by the
five most populous cities in this state.
  (f) The CPI-All Cities Index, commonly known as the cost of
living.
  (g) The stipulations of the parties.
  (h) Such other factors, consistent with paragraphs (a) to (g)
of this subsection as are traditionally taken into consideration
in the determination of wages, hours, and other terms and
conditions of employment. However, the arbitrator shall not use
such other factors, if in the judgment of the arbitrator, the
factors in paragraphs (a) to (g) of this subsection provide
sufficient evidence for an award.
  (5) Not more than 30 days after the conclusion of the hearings
or such further additional periods to which the parties may
agree, the arbitrator shall select only one of the last best
offer packages submitted by the parties and shall promulgate
written findings along with an opinion and order. The opinion and
order shall be served on the parties and the board. Service may
be personal or by registered or certified mail. The findings,
opinions and order shall be based on the criteria prescribed in
subsection (4) of this section.
  (6) The cost of arbitration shall be borne equally by the
parties involved in the dispute.
  SECTION 2. 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 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 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 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.
  (g) For all other employee bargaining except school 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
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 the agreement be rescinded, the board
shall take a secret ballot of the employees in 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 the union
security agreement, the board shall certify deauthorization 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 - }   { + 35 + } 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 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.
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