Argued and submitted on August 21, 2012.
Employment Relations Board UP05710, UP06410
Thomas K. Doyle argued the cause and filed the briefs for petitioner.
Jacqueline A. Weber argued the cause for respondent. With her on the brief was Jenny M. Moore, Acting County Attorney for Multnomah County.
Michael J. Tedesco filed the brief amicus curiae for Oregon State Fire Fighters Council, AFL-CIO, SEIU Local 503, AFSCME.
Before Armstrong, Presiding Judge, and Duncan, Judge, and Brewer, Judge pro tempore.
ARMSTRONG, P. J.
Petitioner Multnomah County Corrections Deputy Association seeks judicial review of a final order of the Employment Relations Board in which the board concluded that respondent Multnomah County did not violate its duty to bargain in good faith, ORS 243.672(1)(e), when it refused to bargain over the association's proposal for mandated training hours and, conversely, that the association violated its counterpart duty to bargain in good faith, ORS 243.672(2)(b), when it submitted that proposal, over the county's objections, as part of its final offer of settlement. We affirm, although, as explained below, our reasoning differs slightly from the board's.
The key question in the case is whether the association's proposal that all sworn county corrections employees be provided a minimum number of hours of approved annual training--half of which were to be "DPSST-approved"--presented a "safety issue" subject to mandatory collective bargaining. Under the Public Employees Collective Bargaining Act (PECBA), public employees have the right to bargain collectively "with their public employer on matters concerning employment relations." ORS 243.662. The definition of "employment relations" in ORS 243.650(7) circumscribes the matters that are "mandatory" for bargaining; matters that are excluded from the definition of employment relations are permissive subjects of bargaining. Portland Fire Fighters' Assoc. v. City of Portland, 245 Or.App. 255, 264, 263 P.3d 1040 (2011) (citing Salem Police Employees Union v. City of Salem, 308 Or 383, 390-91, 781 P.2d 335 (1989)). See also Assn. of Oregon Corrections Emp. v. State of Oregon, 353 Or 170, 176, 295 P.3d 38, (2013) ("[A] public employer commits an unfair labor practice under ORS 243.672(1)(e) if it refuses to bargain with respect to matters that are included within, and not excluded by, the definition of 'employment relations.' Those matters are referred to as 'mandatory' subjects of bargaining."). It is an unfair labor practice for a public employer or its designated representative, and, likewise, for a public employee or a labor organization or its designated representative, to "[r]efuse to bargain collectively in good faith" over mandatory subjects of bargaining. ORS 243.672(1)(e) (public employer); ORS 243.672(2)(b) (public employee/labor organization).
In 2007, the legislature amended the definition of employment relations in ORS 243.650(7) to provide that, for strike-prohibited employees, such as the corrections employees in this case,
"'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."
Or Laws 2007, ch 141, §1a; ORS 243.650(7)(f) (emphasis added). Under the previous version of the statute, only "safety issues" that had "a direct and substantial effect on the on-the-job safety of public employees" were included in the definition of "employment relations." See ORS 243.650(7)(f) (2005) (emphasis added).
Applying the amended statute for the first time, the board here concluded that the association's training proposal did not involve a "safety issue" because it did not, "directly and unambiguously address[ ] a matter related to strike-prohibited employees' workplace safety." The correctness of that conclusion is the central issue on judicial review. Based on our review of the text, context, and legislative history of the 2007 amendments to ORS 243.650(7), we agree with the board's conclusion that it must be apparent from the face of a proposal itself--that is, "directly" and without reference to extrinsic evidence--that the proposal involves a "safety issue." However, the board's introduction of a requirement of "unambiguousness" to the statute is not supported by its text, context, or history and, indeed, is contradicted by the expressed intention of the legislature. Thus, as we explain below, we conclude that the subject of a proposal is a "safety issue" for purposes of ORS 243.650(7)(f) if it would reasonably be understood, on its face, to directly address a matter related to the on-the-job safety of strike-prohibited employees. We further conclude that the proposal at issue here does not meet that standard; therefore, we affirm the decision of the board.
These facts are undisputed. The association, which is the exclusive representative for a bargaining unit of county corrections employees, and the county were parties to a collective bargaining agreement effective July 1, 2004, through June 30, 2010. In August 2008, the parties amended and extended that agreement; the amended agreement was effective August 14, 2008, and continues through June 30, 2014. In accordance with an addendum that allowed the parties to "reopen" certain articles of the 2008-2014 agreement--including two each of the parties' choosing--the parties began "limited reopener" bargaining on March 26, 2010.
The association identified Article 17, "Corrections Service and Training Achievement Program" as one of the articles that it wanted to modify, and it submitted a formal proposal, which, among other things, sought to add the following:
"5. Training. The Sheriff will establish training requirements for Corrections Deputies and Corrections Sergeants. Beginning in the second year of this agreement, all sworn employees shall receive a minimum of forty (40) hours of approved training per year, of which at least twenty (20) hours shall be DPSST-approved training. The employee shall participate in training, including firearms training, at times set by the Sheriff or his designees. Employees participating in any required training during off-duty hours shall be compensated at the overtime rate for time spent in training, or may be permitted to flex hours with the approval of their supervisor."
(Emphasis added; boldface and underscoring omitted.) The county declared that the proposal for a guaranteed 40 hours of training each year (set out in italics above) was a permissive subject of bargaining and refused to bargain over it. The association nonetheless included that proposal in its final offer submitted to the state conciliator under ORS 243.712(2)(b).
Each party filed an unfair labor practice complaint with the board. The association contended that the county had violated its duty to bargain in good faith under ORS 243.672(1)(e) by refusing to negotiate about the proposal. The county contended that it had no duty to bargain over the proposal, because it was "permissive" rather than "mandatory, " and, consequently, the association had violated its good-faith bargaining obligation under ORS 243.672(2)(b) by including the proposal in its final offer to the state conciliator. See Amalgamated Transit Union, Division 57 v. Rogue Valley Transportation District, 16 PECBR 559, 588, order on recons, 16 PEBCR 707 (1996) (a party violates duty to bargain in good faith by including a permissive subject in its final offer over the objections of the other party). The board ruled in favor of the county on both complaints.
The board first considered the meaning of "safety issues" as used in ORS 243.650(7)(f), which, again, provides, as pertinent:
"For employee bargaining involving employees covered by ORS 243.736,  'employment relations' includes safety issues that have an impact on the ...