By Don McIntosh
Oregon law—passed by the Oregon Legislature—says state and local public employees have the right to unionize. On Dec. 8, the Legislature’s own staff exercised that right, and filed cards seeking to join IBEW Local 89. It would be the first state legislative union in the nation. The roughly 110 employees in the proposed unit work directly for Oregon’s 90 legislators.
Now the Oregon Attorney General’s office says they don’t have the right to unionize after all. On behalf of the Legislature, Oregon Attorney General Ellen Rosenblum submitted four separate legal objections in a Dec. 29 filing with the Oregon Employment Relations Board (ERB), the body that administers the state’s public employee collective bargaining law.
Rosenblum argues that for an executive branch agency (ERB) to recognize a bargaining unit in the legislative branch of government would violate the Oregon constitution’s separation of powers. A similar argument came up in 1983 when judicial branch employees sought to unionize; the Legislature passed a law making it clear they could unionize.
Rosenblum also points out that it’s a highly fluctuating group, laid off not just when the Legislature is not in session but when their employers lose election. And each of the 90 legislators independently select and hire their personal staff, and some or all of them could be considered supervisors, managerial, or confidential workers who don’t have the right to unionize.
In a letter to fellow legislators, House Speaker Tina Kotek called the objections “necessary technical and legal clarifications” and said they’re not an attempt to shut down the staff effort to form a union.
“This is part of the normal process and not in any way blocking the unionization effort,” Kotek wrote. “The objections address some very novel questions of law and fact. All objections were filed to inform the process as we learn more.”
IBEW Local 89 representative Tony Ruiz says when news got out about the state’s objection, labor organizations stepped forward to offer the union legal help and letters of support, some legislators reached out to ask if there’s legislation they could present that would be helpful, and the Democratic Party of Oregon offered whatever support is needed.
The case is being watched by union locals around the nation, Ruiz said.
ERB is set to hear arguments from both sides Jan. 14.
MORE: Read the objections here, and Speaker Kotek’s leader to colleagues about them below
Many of you have reached out with questions or sought clarifications about the staff unionization effort and recent Employment Relations Board (ERB) filings. First and most importantly, I want to say that I value the staff of the Legislature – they are truly amazing, and we are fortunate to have the benefit of their experience and knowledge as they serve our offices and Oregonians at large. I know, as do all of you, we simply couldn’t do our work without them.
As you might be aware, labor law is very technical and prescriptive with statutory timeframes. I want to share some additional facts and context about what the objections filed yesterday mean in the context of the unionization effort. DOJ filed them for the branch because DOJ provides legal services to the branch on employment issues.
To be absolutely clear, the objections filed yesterday are not an attempt to shut down the staffs’ effort to form a union.
Yesterday was the deadline for any objections to be included in the union recognition process that is administered by the state’s Employment Relations Board (ERB). The objections made to the ERB were necessary technical and legal clarifications. This is part of the normal process and not in any way blocking the unionization effort. The objections address some very novel questions of law and fact. All objections were filed to inform the process as we learn more. As it turned out, the statutory deadlines required the branch to file the objections on the same day we received the list of employees the IBEW intends to represent. The IBEW employee lists raised additional questions that we will need the assistance of the ERB to resolve. For example, we need to clarify which classifications are included, employees in the classifications, and the rationale for inclusion/exclusion of some LAs.
I hope this additional context is helpful. Our objective is to work with the ERB and IBEW to sort out these points while recognizing we are all working under time constraints and trying our best to understand the rationale being applied. The matter has been sent to the ERB Hearings Division. The OARs require a hearing to be held within 21 days. We will await a hearing to be scheduled and hope to get greater clarity on these complex questions and issues for all involved.
I want to reiterate that it is contrary to state collective bargaining laws for legislators, who are appointing authorities, to attempt to influence or interfere in any way – in support or opposition of this effort. That is why my public statements will be limited while this issue is pending before the ERB.
As always, legislators can and should continue to listen to the concerns, interests and needs of our staff, but in this circumstance, you should not engage in any discussion about the organizing activity. You may find that you have questions yourself or are asked for resources from your staff. The ERB has jurisdiction over certifying public employee labor organizations. Their website provides an overview of the process in Oregon and can be a place where you can direct staff who may ask you questions as the ERB is a neutral third party with factual information to offer.
Finally, some questions have been asked about the impact of the organizing effort on the implementation of the new compensation plan. This effort has no impact on the prior decision of the Presiding Officers to approve the new compensation plan which will be in effect on January 1, 2021 (paid February 1). No employee will have their pay reduced, and the majority of employees will see significant (and well-deserved) pay increases on their February 1 paychecks.
I hope this information is helpful.