Bill Text: OR HB3342 | 2013 | Regular Session | Enrolled

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Bill Title: Relating to union organizing; and declaring an emergency.

Spectrum: Partisan Bill (Democrat 5-0)

Status: (Passed) 2013-07-25 - Chapter 663, (2013 Laws): Effective date July 1, 2013. [HB3342 Detail]

Download: Oregon-2013-HB3342-Enrolled.html

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     77th OREGON LEGISLATIVE ASSEMBLY--2013 Regular Session

                            Enrolled

                         House Bill 3342

Sponsored by Representative DEMBROW; Representatives BARKER,
  MATTHEWS, Senators EDWARDS, ROBLAN

                     CHAPTER ................

                             AN ACT

Relating to union organizing; creating new provisions; amending
  ORS 243.672, 243.676 and 243.682; and declaring an emergency.

Be It Enacted by the People of the State of Oregon:

  SECTION 1.  { + Sections 3 and 4 of this 2013 Act may be cited
as the Public Employer Accountability Act. + }
  SECTION 2.  { + Section 4 of this 2013 Act is added to and made
a part of ORS 243.650 to 243.782. + }
  SECTION 3.  { + (1) The Legislative Assembly finds that:
  (a) It is the policy of this state that public funds may not be
used to subsidize interference with an employee's choice to join
or to be represented by a labor union.
  (b) Some public employers use public funds to aid or subsidize
efforts to deter union organizing.
  (c) Use of public funds to deter union organizing is contrary
to the purposes for which the funds were appropriated and is
wasteful of scarce public resources.
  (2) The purpose of section 4 of this 2013 Act is to maintain
the neutrality of public bodies in labor organizing by forbidding
the use of public funds for unintended purposes and to conserve
public resources by ensuring that public funds are used as
intended. + }
  SECTION 4.  { + (1) As used in this section:
  (a) 'Assist, promote or deter union organizing' means any
attempt by a public employer to influence the decision of any or
all of its employees or the employees of its subcontractors
regarding:
  (A) Whether to support or oppose a labor organization that
represents or seeks to represent those employees; or
  (B) Whether to become a member of any labor organization.
  (b) 'Public funds' means moneys drawn from the State Treasury
or any special or trust fund of the state government, including
any moneys appropriated by the state government and transferred
to any public body, as defined in ORS 174.109, and any other
moneys under the control of a public official by virtue of
office.
  (c) 'Public property' means any real property or facility owned
or leased by a public employer.
  (2) A public employer may not:
  (a) Use public funds to support actions to assist, promote or
deter union organizing; or

Enrolled House Bill 3342 (HB 3342-A)                       Page 1

  (b) Discharge, demote, harass or otherwise take adverse action
against any individual because the individual seeks to enforce
this section or testifies, assists or participates in any manner
in an investigation, hearing or other proceeding to enforce this
section.
  (3) If an employee requests the opinion of the employee's
employer or supervisor about union organizing, nothing in this
section prohibits the employer or supervisor from responding to
the request of the employee.
  (4) This section does not apply to an activity performed, or to
an expense incurred, in connection with:
  (a) Addressing a grievance or negotiating or administering a
collective bargaining agreement.
  (b) Allowing a labor organization or its representatives access
to the public employer's facilities or property.
  (c) Performing an activity required by federal or state law or
by a collective bargaining agreement.
  (d) Negotiating, entering into or carrying out an agreement
with a labor organization.
  (e) Paying wages to a represented employee while the employee
is performing duties if the payment is permitted under a
collective bargaining agreement.
  (5)(a) This section shall be enforced by the Employment
Relations Board, which shall adopt rules necessary to implement
and administer compliance. A resident of this state may intervene
as a plaintiff in any action brought under this section.
  (b) Nothing in this section prohibits a public employer from
spending public funds for the purpose of representing the public
employer in a proceeding before the board or in a judicial review
of that proceeding. + }
  SECTION 5.  { + A petition for representation filed under ORS
243.682 (2) alleging that a majority of employees in the unit
appropriate for the purpose of collective bargaining wish to be
represented by a labor organization for that purpose must include
a statement of a desire by the employees to be represented for
the purpose of collective bargaining and must be signed and dated
by 30 percent of the employees in the unit during the 180 days
prior to the filing of the petition with the Employment Relations
Board. + }
  SECTION 6. ORS 243.672 is amended to read:
  243.672. (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.
  (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

Enrolled House Bill 3342 (HB 3342-A)                       Page 2

or complaint or has given information or testimony under ORS
243.650 to 243.782.
  (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
to 243.782.
  (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 section 4 (2) of this 2013 Act. + }
  (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
to 243.782.
  (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
to 243.782.
  (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.
  (f) 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.
  (g) 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 paragraph, 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 paragraph. Nothing in this
paragraph 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.

Enrolled House Bill 3342 (HB 3342-A)                       Page 3

  (3) 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.
  SECTION 7. ORS 243.676 is amended to read:
  243.676. (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 (1) and (2) and 243.752, 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, 240.065,
240.080, 240.123, 243.650 to 243.782, 292.055 and 341.290;
  (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) - }   { + (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

Enrolled House Bill 3342 (HB 3342-A)                       Page 4

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) - }   { + (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 section 4 (2) of this 2013 Act, 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.
  SECTION 8. ORS 243.682 is amended to read:
  243.682. (1) If a question of representation exists, the
Employment Relations Board shall:
  (a) Upon application of a public employer, public employee or a
labor organization, designate the appropriate bargaining unit,
and in making its determination shall consider such factors as
community of interest, wages, hours and other working conditions
of the employees involved, the history of collective bargaining,
and the desires of the employees. The board may determine a unit
to be the appropriate unit in a particular case even though some
other unit might also be appropriate.
  (b) Investigate and conduct a hearing on a petition that has
been filed by:
  (A) A labor organization alleging that 30 percent of the
employees in an appropriate bargaining unit desire to be
represented for collective bargaining by an exclusive
representative;
  (B) A labor organization alleging that 30 percent of the
employees in an appropriate bargaining unit assert that the
designated exclusive representative is no longer the
representative of the majority of the employees in the unit;
  (C) A public employer alleging that one or more labor
organizations has presented a claim to the public employer
requesting recognition as the exclusive representative in an
appropriate bargaining unit; or
  (D) An employee or group of employees alleging that 30 percent
of the employees assert that the designated exclusive
representative is no longer the representative of the majority of
employees in the unit.
  (2)(a) Notwithstanding subsection (1) of this section, when an
employee, group of employees or labor organization acting on
behalf of the employees files a petition alleging that a majority
of employees in a unit appropriate for the purpose of collective
bargaining wish to be represented by a labor organization for
that purpose, { +  or when a group of unrepresented employees
files a petition stating that the unrepresented employees seek to
be included in an existing bargaining unit, + } the board shall
investigate the petition. If the board finds that a majority of
the employees in a unit appropriate for bargaining  { + or in a
group of unrepresented employees seeking to be included in an
existing bargaining unit + } have signed authorizations
designating the labor organization specified in the petition as
the employees' bargaining representative and that no other labor
organization is currently certified or recognized as the

Enrolled House Bill 3342 (HB 3342-A)                       Page 5

exclusive representative of any of the employees in the unit { +
or in the group of unrepresented employees seeking to be included
in an existing bargaining unit + }, the board may not conduct an
election but shall certify the labor organization as the
exclusive representative unless a petition for a representation
election is filed as provided in subsection (3) of this section.
  (b) The board by rule shall develop guidelines and procedures
for the designation by employees of a bargaining representative
in the manner described in paragraph (a) of this subsection. The
guidelines and procedures must include:
  (A) Model collective bargaining authorization language that may
be used for purposes of making the designations described in
paragraph (a) of this subsection;
  (B) Procedures to be used by the board to establish the
authenticity of signed authorizations designating bargaining
representatives;
  (C) Procedures to be used by the board to notify affected
employees of the filing of a petition requesting certification
under subsection (3) of this section;
  (D) Procedures for filing a petition to request a
representation election, including a timeline of not more than 14
days after notice has been delivered to the affected employees of
a petition filed under paragraph (a) of this subsection; and
  (E) Procedures for expedited resolution of any dispute about
the scope of the appropriate bargaining unit. The resolution of
the dispute may occur after an election is conducted.
  (c) Solicitation and rescission of a signed authorization
designating bargaining representatives are subject to the
provisions of ORS 243.672.
  (3)(a) Notwithstanding subsection (2) of this section, when a
petition requesting certification has been filed under subsection
(2) of this section, an employee or a group of employees in the
unit designated by the petition { + , or one or more of the
unrepresented employees seeking to be included in an existing
bargaining unit, + } may file a petition with the board to
request that a representation election be conducted.
  (b) The petition requesting a representation election must be
supported by at least 30 percent of the employees in the
bargaining unit designated by the petition { + , or 30 percent of
the unrepresented employees seeking to be included in an existing
bargaining unit + }.
  (c) The representation election shall be conducted on-site or
by mail not later than 45 days after the date on which the
petition was filed.
  (4) Except as provided in ORS 243.692, if the board finds in a
hearing conducted pursuant to subsection (1)(b) of this section
that a question of representation exists, the board shall conduct
an election by secret ballot, at a time and place convenient for
the employees of the jurisdiction and also within a reasonable
period of time after the filing has taken place, and certify the
results of the election.
  SECTION 9.  { + The amendments to ORS 243.682 by section 8 of
this 2013 Act apply to petitions filed with the Employment
Relations Board on or after the effective date of this 2013
Act. + }
  SECTION 10.  { + This 2013 Act being necessary for the
immediate preservation of the public peace, health and safety, an
emergency is declared to exist, and this 2013 Act takes effect
July 1, 2013. + }
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Enrolled House Bill 3342 (HB 3342-A)                       Page 6

Passed by House April 25, 2013

Repassed by House July 7, 2013

    .............................................................
                             Ramona J. Line, Chief Clerk of House

    .............................................................
                                     Tina Kotek, Speaker of House

Passed by Senate July 7, 2013

    .............................................................
                              Peter Courtney, President of Senate

Enrolled House Bill 3342 (HB 3342-A)                       Page 7

Received by Governor:

......M.,............., 2013

Approved:

......M.,............., 2013

    .............................................................
                                         John Kitzhaber, Governor

Filed in Office of Secretary of State:

......M.,............., 2013

    .............................................................
                                   Kate Brown, Secretary of State

Enrolled House Bill 3342 (HB 3342-A)                       Page 8