EMPLOYMENT RELATIONS BOARD OF THE STATE OF OREGON ) ) ) ) ) ) ) ) ) ) ) ) Complainant, Respondent

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1 EMPLOYMENT RELATIONS BOARD OF THE STATE OF OREGON WASHINGTON COUNTY DISPATCHERS ASSOCIATION, v. Complainant, WASHINGTON COUNTY CONSOLIDATED COMMUNICATIONS AGENCY, Respondent Case Nos. UP-15-13/27-13 BRIEF OF THE OREGON PUBLIC EMPLOYER LABOR RELATIONS ASSOCIATION, NATIONAL PUBLIC EMPLOYER LABOR RELATIONS ASSOCIATION, OREGON SCHOOL BOARD ASSOCIATION, LEAGUE OF OREGON CITIES, ASSOCIATION OF OREGON COUNTIES and OREGON ASSOCIATION OF CHIEFS Of POLICE AS AMICI CURIAE ON THE MERITS IN SUPPORT OF WASHINGTON COUNTY CONSOLIDATED COMMUNICATIONS AGENCY AND IN FAVOR OF AFFIRMANCE Appeal from the Decision of Administrative Law Judge Larry L. Witherell dated February 13, 2014 Todd A. Lyon, OSB No Tyler Volm, OSB No Barran Liebman LLP 601 S.W. Second Avenue, Suite 2300 Portland, Oregon Telephone: ( Lisa Freiley, OSB No Oregon School Boards Association 1201 Court St NE PO Box 1068 Salem OR Telephone: ( April 25, 2014

2 STATEMENT OF THE CASE On or about February 13, 2014, Oregon Employment Relations Board ( ERB or Board Administrative Law Judge ( ALJ, Larry L. Witherell, issued his Recommended Rulings, Findings of Fact, Conclusions of Law, and Proposed Order in Washington County Dispatchers Association, Case Nos. UP-015/27-13 (2014. On or about April 4, 2014, the Board issued a Notice and Invitation to File Briefs for interested parties to file amicus briefs because this case raises substantial questions (both policy and legal under the Public Employee Collective Bargaining Act ( PECBA. STATEMENT OF INTEREST OF AMICI CURIAE The Oregon Public Employer Labor Relations Association, National Public Employer Labor Relations Association, Oregon School Boards Association, League of Oregon Cities, Association of Oregon Counties, and the Oregon Association of Chiefs of Police (collectively Amici offer amici curiae support in cases where they can provide useful input and perspective on issues that will significantly affect public sector management rights and labor relations. The Oregon Public Employer Labor Relations Association and its national affiliate, National Public Employer Labor Relations Association, provide advocacy so as to improve labor relations in the public sector by representing members in municipal, county, and state governments, school districts, university systems, and special purpose districts. The Oregon School Boards Association assists public school boards, public charter school boards, education service district boards, and community college boards through advocacy. The League of Oregon Cities advocates on behalf of all of Oregon s 242 incorporated cities to improve municipal services through technical assistance, research, and education. The Association of Oregon Counties advocates and coordinates advocacy on behalf of county governments to serve Oregonians. The Oregon Association of Chiefs of Police promotes the highest ethical and professional standards in law enforcement at all levels throughout Oregon and advocates for legal issues that help police departments better protect citizens. 1

3 The Amici wish to assist ERB in deciding the present case and hereby submits this brief providing information on the following questions. QUESTIONS PRESENTED ON REVIEW 1. If one party insists on audio-recording bargaining sessions and the other party opposes such recording, how should the Board treat competing complaints from both parties alleging that the other party is conditioning bargaining on a permissive subject of bargaining? 2. Should the Board begin with a presumption that the bargaining sessions are not to be audio-recorded, and that in the absence of mutual agreement, a party may not insist on audio-recording bargaining sessions and may not record such sessions without the other party s consent? 3. Should the Board treat the subject of audio recording a bargaining session differently from other forms of bargaining-session note taking? 4. Should audio and video recording of bargaining sessions be treated differently? 5. With respect to other ground rule subjects, how should the Board analyze a situation where there is no agreement on those subjects, but one party engages in bargainingsession conduct consistent with its own ground-rule proposal, yet at odds with the other party s ground-rule proposal? 6. If there are no discussions or proposals on bargaining ground rules, what should the Board do if one party shows up at the first bargaining session and announces that it will electronically record bargaining sessions and the other side opposes that action, and both parties file unfair labor practice complaints alleging that the other party is conditioning bargaining on a permissive subject? Should the Board respond differently if the announced bargaining-session conduct is something other than audio recording bargaining sessions? 7. If the parties have contractually agreed to ground rules and one party breaches that contract, may the other party refrain from bargaining until the breaching party brings 2

4 itself into compliance with the contractually-agreed-to ground rules? Does the answer depend on the nature of the breach? 8. What PECBA policies should the Board be guided by in resolving any of the scenarios outlined above? ARGUMENT I. The Board should treat competing complaints concerning conditioning bargaining on audio recordings by finding against the party insisting on audio-recording and dismissing the complaint against the party opposing such recording. ERB has long ago established that requiring agreement on permissive subjects as a condition to negotiations constitutes bad faith bargaining. See e.g., Teamsters Local 57 v. City of Bandon, 13 PECBR 551, (1992 (conditioning bargaining on agreement over confidential employee s status; Washington County v. Washington County Police Officers Ass n, 5 PECBR 4411, (1981 (conditioning bargaining on withdrawal of a request for mediation; City of Salem v. International Association of Fire Fighters, Local 314, 5 PECBR 4237, 4242 (1980 (conditioning bargaining on agreement to ground rules. In the private sector, the National Labor Relations Board ( NLRB already determined that the use of audio recordings in negotiations is a permissive subject. Bartlett- Collins Co., 237 NLRB 770, 772 (1978, enf d, 639 F.2d 652 (10 th Cir. 1981; Water Association, 290 NLRB 838 (1988; Pennsylvania Telephone Guild (Bell Tel. Co. of Pa., 277 NLRB 501 (1985 enf d 799 F.2d 84 (3rd Cir In following the NLRB s line of authority, when a party insists on audio recordings, ERB must find the party in violation of the duty to bargain in good faith. Thus, the Washington County Dispatcher s Association engaged in bad faith bargaining by insisting upon audio recordings. As for the party who suffered illegal conduct during collective bargaining, that party is entitled to temporarily suspend bargaining. Lyman Steel Co., 249 NLRB 296 ( ERB looks to private sector case law for guidance in interpreting the PECBA. Elvin v. OPEU, 313 Or 165, 177 (

5 (obligation to bargain is suspended due to union s illegal strike. This is especially true where one party engages in bad faith bargaining by insisting to impasse on a permissive subject. Nassau Ins. Co., 280 NLRB 878 (1986. In Nassau, the Union, like the Association in the present case, insisted on a stenographer because of a lack of trust between the parties. Nassau, 280 NLRB 887. In Nassau, the Board adopted the ALJ s decision, finding the Union s insistence on a stenographer during negotiations was an insistence on a nonmandatory subject of bargaining under the principle announced in Bartlett-Collins. Id. at 887. Accordingly, the NLRB allowed the Employer to temporarily suspend bargaining. However, the duty to bargain is only suspended for so long as the period of the breach or unlawful action continues. Arundel Corp., 210 NLRB 525 (1974; Dorsey Trailers, Inc., 80 NLRB 478 (1948 (suspending the employer s obligation to bargain pending the Union s illegal conduct. Therefore, in this case, ERB must dismiss any complaint against the party who does not insist upon audio recordings. As to the procedural handling of such cases, the Board should process such competing complaints under its expedited unfair labor practice rules. According to OAR (2, expedited consideration may be given only to complaints which are limited to allegations under ORS (1(e or (2(b. In so doing, the Board order generally shall be issued within 45 days of the date on which the expedited complaint is filed. This will ensure a timely resolution to the violation without delaying the bargaining period. However, regardless of how the matter is processed, ERB should consider tolling the 150 day period under ORS (1. II. The Board should begin with a presumption that the bargaining sessions are not to be audio-recorded. The NLRB has already determined that the use of audio recordings in negotiations is a permissive subject. Bartlett-Collins Co., 237 NLRB 770, 772 (1978, enf d, 639 F.2d 652 (10 th Cir. 1981; Water Association, 290 NLRB 838 (1988; Pennsylvania Telephone Guild 4

6 (Bell Tel. Co. of Pa., 277 NLRB 501 (1985 enf d 799 F.2d 84 (3rd Cir. 1986; Local No. 455, Bakery, Confectionary and Tobacco Workers International Union (Nabisco Brands, 272 NLRB 1362 (1984. Thus, ERB must follow this same line of authority by beginning any analysis with a presumption that bargaining sessions are not to be audio-recorded. Absent mutual agreement, a party may not insist on audio-recording bargaining sessions and may not record such sessions without the other party s consent because to do so would be to act unilaterally on a permissive subject. III. The Board should treat the subject of audio recording of a bargaining session differently from other forms of bargaining-session note taking because of the chilling effect associated with verbatim audio recording. There are significant differences between the uses, and potential misuses, to which traditional note taking and audio recordings may be put. Traditional note taking allows each party to make a historical record of the discussions; memorializing statements of intent and how a certain provision is to be implemented, both for ease of administration and to assist in clarifying any ambiguities that may arise when administering the negotiated agreement. Importantly, what to record through traditional note taking is left to the discretion of each party. Audio recording, however, does not provide the parties with that discretion and, more importantly, is likely to change their behavior during the negotiation, impeding meaningful collective bargaining. 2 Further, audio recordings may be more widely disseminated or may be manipulated to change the intent, nature, or even content of the conversation (for example, if only a certain portion of the audio recording is released, which takes the intent, nature, or content of the conversation out of context. In NLRB and American Flint Glass Workers Union v. Bartlett-Collins Company, 639 F.2d 652, (1981, the Court recounted that numerous experts in the field of labor 2 Undoubtedly, the civil court rules recognize that audio and video recordings change the intensity of depositions when, under FRCP 30(b(3, parties must provide notice of an intent to depose using audio or video recording devices. 5

7 relations have concluded that the presence of a court reporter has the tendency to inhibit free and open discussion necessary for conducting successful collective bargaining. It may cause parties to talk for the record rather than to advance toward an agreement. The proceedings may become formalized, sapping the spontaneity and flexibility often necessary to successful negotiations. Id., citing Bartlett-Collins Co., 99 LRRM 1034, 1036 n. 9. Additionally, demanding court reporting may give notice that one party lacks confidence in the collective bargaining process, anticipating litigation rather than agreement and informed persuasion may be supplanted by the concern for being a careful litigation. Id., citing St. Louis Typographical Union, 57 LRRM at 1372 (Fanning and Brown, concurring. See also Pennsylvania Telephone Guild (Bell Telephone Company, 277 NLRB 501 (1985, enf d, 799 F2d 84 (3rd Cir (NLRB held it to be bad faith bargaining to insist on the presence of a recording device during a grievance meeting, concluding that the device may have a tendency to inhibit free and open discussions. For these reasons, audio recording must be treated differently than traditional note taking, and should only be enforced against an unwilling party in the most extreme circumstances or where there is an overriding public policy concern that is satisfied by the imposition of audio recording requirements. PECBA s policy of facilitating cooperative and harmonious relationships between labor and management would be severely undercut if one side was allowed to audio record a bargaining session without the other party s consent. IV. The Board should treat the subject of video recording of a bargaining session differently from an audio recording because of the increased chilling effect associated with video recording which, in addition to recording the verbatim discussion, also records the demeanor of the negotiating parties. Video recording has an even greater likelihood to inhibit free and open discussion necessary for conducting successful collective bargaining, pushing the parties even further out along this spectrum of inhibitions. Where there appears to be little to no impediments to free and open discussions when each party employs traditional note taking, when video recordings are introduced, the concerns discussed in the previous section are amplified. This 6

8 amplification is even greater when not just the words, but the conduct and demeanor of the speakers are also recorded. Where audio recordings may cause parties to talk for the record rather than to advance toward an agreement, video recordings may cause the parties to go one step further and act for the record. Spontaneity and flexibility are almost entirely eliminated when a party s words and actions are being recorded. For these reasons, video recording must be treated differently than traditional note taking and even audio recording, and should only be enforced against an unwilling party in the most extreme circumstances. V. Where one party engages in bargaining session conduct consistent with its own ground rule proposal, yet at odds with the other party s ground rule proposal, the Board should presume the party advancing a permissive subject to be engaged in bad faith bargaining. Where the parties have engaged in discussions over bargaining ground rules, but with no agreement, and the parties act in conformity with their proposals, the Board must first determine whether the subject matter is a mandatory or permissive subject. If the subject is a mandatory subject, then the party advancing the matter is entitled to insist upon its proposal. If, however, the subject is a permissive subject, the party advancing the subject must be presumed to be bargaining in bad faith. Either party may agree to negotiate about a permissive subject but is not required to do so. Therefore, the party advancing a permissive subject must be presumed to be acting in bad faith. This is consistent with the NLRB s approach where it determines whether the proposed condition being advanced is so onerous or unreasonable as to indicate bad faith. Higgins, The Developing Labor Law, Sixth Ed., p. 956 (2012. VI. Where one party shows up at the first bargaining session and announces that it will electronically record bargaining sessions and the parties have dueling unfair labor practice complaints, the Board should presume the party advancing the audio recording conduct to be engaged in bad faith bargaining. In the situation where the parties have not even had a discussion about ground rules (unlike Question #5 above and one party advances the audio recording, the Board is compelled to presume the party advancing the audio recording is engaged in bad faith 7

9 bargaining. This is especially true because there was no notice to prepare the other party for the potential of audio recordings. With no notice, the conduct of advancing a permissive subject is that much worse. There is no need for the Board to handle things differently if the subject matter is something other than audio recordings. VII. Where one party breaches any provision of the ground rules, the other party may refrain from bargaining until the breaching party brings itself into compliance with the contractually-agreed to ground rules. The Board has held that executed ground rules are enforceable under PECBA, and that a violation of ground rules constitutes an unfair labor practice. Salem v. IAFF, Local 314, 5 PECBR In that case, the Board concluded that to allow a party to abrogate such an agreement, upon which another party is reasonably relying in developing and implementing its bargaining strategy, could only harm the development of harmonious and cooperative relationships which the PECBA was enacted to foster. Id. at See also Beaverton Substitute Teachers Ass n v. Beaverton School Dist. 48, 15 PECBR 229, 244 (1994 (union s failure to respond in a timely manner to the employer s request to open negotiations under a mutually-agreed-to funding clause constituted a violation of the parties agreement and under ORS (2(d. A party may lawfully suspend negotiations when the other party is engaged in unlawful action, Lyman Steel Co., 249 NLRB 296 (1980, and this is especially true when one party insists to impasse on a permissive subject. Nassau Ins. Co., 280 NLRB 878 (1986. The duty to bargain is only suspended for so long as the period of the breach or unlawful action continues. Arundel Corp., 210 NLRB 525 (1974; Dorsey Trailers, Inc., 80 NLRB 478 (1948. Therefore, if one party breaches any of the ground rules, the other party may refrain from bargaining until the breach is fully remedied. This analysis should not change based on the nature or severity of the breach because the parties had an opportunity to negotiate the ground rule, and properly tailor its scope to their needs, such that even a minor breach of those rules should constitute bargaining in bad faith. Furthermore, if the breach is minor in 8

10 nature, the breaching party will not have to take extensive steps to remedy the breach, limiting the amount of time the parties are away from the bargaining table. VIII. The PECBA policies should guide the Board in resolving the scenarios above. The Board should be guided by PECBA s legislative policy which states that a structured bargaining law encourages practices fundamental to the peaceful adjustment of disputes. ORS (3. Establishing ground rules is the first step in the process of peaceful adjustment of disputes, and proper enforcement of these ground rules in the manners discussed above will increase the effectiveness and efficiency of the collective bargaining process, satisfying many of the legislative policies outlined in ORS If a party were free to breach agreed-upon ground rules without the possibility of sanctions, the consequence would vitiate the development of harmonious and cooperative negotiations at the critical stage of the bargaining process. By allowing this development, we would fail in our statutory responsibility to foster and encourage meaningful collective bargaining by permitt[ing] a party to stifle negotiations in their inception over such a threshold issue. Washington County Dispatchers Association v. Washington County Consolidated Communications Agency, Case Nos. UP-015/27-13 page 13, citing Bartlett Collins, 237 NLRB at 770, 773 (1978, enf d, 639 F.2d 652 (10th Cir Additionally, any processes that may inhibit the free and open discussion necessary for conducting successful collective bargaining must be carefully reviewed by the Board, and any such process that falls into the category of a permissive subject should be saddled with a presumption that the advancing party is negotiating in bad faith. // // // // // 9

11 CONCLUSION For the foregoing reasons, amici curiae join with Washington County Consolidated Communications Agency to respectfully request ERB affirm the ALJ s decision in this matter. Dated this 25 th day of April, Respectfully submitted, BARRAN LIEBMAN LLP By Todd A. Lyon, OSB No Tyler Volm, OSB No Attorneys for Amici Curiae ORPELRA, NPELRA, League of Oregon Cities, Association of Oregon Counties, Oregon Association Chiefs of Police OREGON SCHOOL BOARD ASSOCIATION By Lisa M. Freiley, OSB No Attorney for Amici Curiae Oregon School Boards Association 10

12 CERTIFICATE OF FILING AND SERVICE I hereby certify that on the date below I filed by fax the foregoing Brief of the ORPELRA, NPELRA, Oregon School Board Association, the League of Oregon Cities, Association of Oregon Counties and Oregon Chiefs of Police Association as Amici Curiae on the following: Oregon Employment Relations Board 528 Cottage Street NE Suite 400 Salem, OR Fax: ( At the same time, I served this document, via certified first-class U.S. mail, postage prepaid, to the following: Daniel Rowan Bullard Law 200 SW Market, Suite 1900 Portland, OR Attorney for the Agency Elizabeth Lemoine Makler, Lemoine & Goldberg, P.C. 515 NW Saltzman Road, Ste 811 Portland, OR Attorney for the Association Dated this 25th day of April, BARRAN LIEBMAN LLP By Todd A. Lyon, OSB No