AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, COUNCIL 75, LOCAL 2043, Respondent,
CITY OF LEBANON, Petitioner
Argued and Submitted February 12, 2014
Employment Relations Board UP1411.
John E. Kennedy argued the cause for petitioner. With him on the brief was The Morley Thomas Law Firm.
Giles Gibson argued the cause and filed the brief for respondent.
Before Sercombe, Presiding Judge, and Hadlock, Judge, and Tookey, Judge.
[265 Or.App. 289] TOOKEY, J.
The City of Lebanon seeks judicial review of an order of the Employment Relations Board (the board) in which the board concluded that the city committed an unfair labor practice against respondent (the union), in violation of ORS 243.672(1)(a) and (b), when Margaret Campbell, a city councilor, wrote a letter criticizing unions and sent it to a local newspaper. We review the board's order for errors of law pursuant to ORS 183.482(8), and we reverse.
The following facts are either taken from the board's factual findings or stipulated to by the parties. According to the City of Lebanon Charter of 2004, the city is " a municipal corporation" that includes " all territory encompassed by its boundaries * * *." The city is also a public employer as defined by ORS 243.650(20). All powers of the city are vested in the city council, which is composed of a mayor and six councilors; the council delegates much of that power to the city administrator (manager), who is the " administrative head of the government of the City." Specifically, the city administrator (manager) is " responsible for the daily operation of the City's departments and implementation of Council policy."
The council is responsible for holding regular meetings, adopting " rules for the government of its members and proceedings[,]" and appointing certain city officers. The council is also responsible for passing ordinances and voting on questions before it, including whether to approve " a bond of a City officer or a bond for a license, contract or proposal[.]" Except as the city charter provides, " the concurrence of a majority of the members of the Council present and voting at a Council meeting shall be necessary to decide any question before the Council." Further, " [n]o action by [265 Or.App. 290] the council shall have legal effect unless the motion for the action and the vote by which it is disposed of take[ ] place at proceedings open to the public."
Campbell was appointed as a city councilor in 2010 and was a member of the budget committee. As a city councilor, she would " be asked to vote and ratify any collective bargaining agreement with the Union that [was] negotiated by the City negotiation team." However, Campbell was not a member of the city's labor negotiation team, and, "
[o]ver the last 10 years, no city councilor [had] been a member of the City's labor negotiation team."
At the time of the events giving rise to this case, the city was experiencing a budget crisis, and the city and the union were parties to a collective bargaining agreement that was set to expire. The president of the union, along with the president of another union that represents city employees, co-authored a letter to the city. In that letter, the union presidents stated that the city should consider eliminating the positions of assistant city manager/human resources manager and human resources assistant before cutting essential services or laying off union workers.
Shortly thereafter, Campbell sent a letter to the Lebanon Express , a local newspaper. The letter was addressed to " All Citizens of Lebanon[.]" Campbell began the letter by stating:
" I would like to inform all of you about some elements of my personal background before I get to the basis of my letter. Further I would like to clarify this letter is being written by me as an individual and not a reflection of a majority of the City Council, the City or my employer."
Campbell then described her and her family's involvement with unions, defended the city's human resources positions, and criticized unions in general. Campbell concluded the letter by stating:
" To employees of the City and other organizations imprisoned by the dictatorship of a union as a private citizen I advise you to seek out the Department of Labor website where you can find instructions on how to decertify your union captors. As an individual and former union member [265 Or.App. 291] I believe you can put your union dues to better use in ...