Submitted: December 11, 2013.
Employment Relations Board. UP06911.
Becky Gallagher and Fenrich & Gallagher, P. C., filed the briefs for petitioner.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Leigh A. Salmon, Assistant Attorney General, filed the brief for respondent.
Before Sercombe, Presiding Judge, and Hadlock, Judge, and Tookey, Judge.
[266 Or.App. 497] HADLOCK, J.
The Association of Oregon Corrections Employees petitions for judicial review of an order in which the Employment Relations Board determined that the Oregon Department of Corrections did not commit an unfair labor practice when it refused to negotiate, in 2011, over certain aspects of a new " Health Engagement Model" adopted by the Public Employees Benefit Board. After the Department of Corrections suggested that the case might have become moot, we requested and received supplemental briefing from the parties on that topic. We conclude that the case is moot because a decision by this court would not have any practical effect on the
rights of the parties. Accordingly, we dismiss the petition for judicial review.
A. The Public Employees Collective Bargaining Act
This dispute arises under the Public Employees Collective Bargaining Act (PECBA), which gives public employees the right to bargain collectively with their public employers " on matters concerning employment relations." ORS 243.662. PECBA requires bargaining over " mandatory subjects of bargaining," which are described in the definition of " employment relations" in ORS 243.650(7). PECBA allows, but does not require, parties to agree to discuss " matters other than mandatory subjects of bargaining that are not prohibited by law * * *, which are permissive subjects of bargaining." ORS 243.650(4).
" The statute thus breaks subjects of bargaining into two primary categories: mandatory and permissive. Any subject that is not mandatory is permissive, with two limitations: The parties must reach 'mutual agreement' in order to address the permissive subject in collective bargaining, and the permissive subject must not be 'prohibited by law.'"
Service Employees Int'l Union Local 503 v. DAS, 183 Or.App. 594, 598, 54 P.3d 1043 (2002).
As detailed below, this dispute involves the parties' disagreement about whether a certain union proposal was a subject of mandatory bargaining.
[266 Or.App. 498] B. Events leading to the challenged order
Employees represented by the Association of Oregon Corrections Employees (AOCE) and the Oregon Department of Corrections (DOC) were parties to a collective bargaining agreement that expired in June 2011. In late 2010, the parties began negotiations on a successive bargaining agreement. While negotiations were ongoing, the Public Employees Benefit Board (PEBB) adopted the Health Engagement Model (HEM), which it hoped would encourage public employees (including AOCE members) to improve their health. One aspect of the HEM, as then envisioned, is that employees would take steps to identify potential health risks and to address those issues. Employees who did not enroll in HEM or comply with certain HEM requirements would be subject to monthly surcharges ranging from $20 to $105.
During contract negotiations with the DOC, the AOCE demanded to bargain over certain aspects of the HEM. The parties reached a tentative agreement in August 2011 that left HEM issues open, and the DOC agreed not to implement the HEM while the parties attempted to resolve the issue. In mid-October, the DOC informed the AOCE that it " refuse[d] to bargain on the Association's bargaining demand," which, the DOC asserted, presented " a prohibited/permissive subject of bargaining." 
Later that month, the AOCE filed a petition with the Employment Relations Board (ERB) to initiate binding interest arbitration over the HEM model. The same day, the AOCE made a final offer about the HEM, which would have made employee participation in the HEM program voluntary. The DOC moved to hold the interest arbitration in abeyance on the ground that the parties had already asked ERB to decide whether the HEM was " mandatory for bargaining."
On October 27, 2011, the AOCE filed an amended unfair labor practice complaint with ERB alleging (among [266 Or.App. 499] other things) that the DOC had committed an unfair labor practice by refusing to bargain over the HEM. As pertinent here, the AOCE asked ERB to find that the DOC had committed an unfair labor practice and to order the DOC to bargain in good faith.
In an expedited hearing before ERB, the AOCE argued that its HEM proposal affected health-insurance benefits and direct monetary ...