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American Federation of State County and Municipal Employees, Local 2043 v. City of Lebanon

Supreme Court of Oregon, En Banc

February 2, 2017

AMERICAN FEDERATION OF STATE COUNTY AND MUNICIPAL EMPLOYEES, COUNCIL 75, LOCAL 2043, Petitioner on Review,
v.
CITY OF LEBANON, Respondent on Review.

          Argued and submitted June 16, 2015

         On review from the Court of Appeals ERB UP1411; CA A152059.[*]

          Giles Gibson, Legal Counsel, Oregon AFSCME, Council 75, Portland, argued the cause and fled the brief for petitioner on review.

          John E. Kennedy, The Morely Thomas Law Firm, Lebanon, argued the cause and fled the brief for respondent on review.

          Elizabeth A. Joffe, McKanna Bishop Joffe, LLP, Portland, fled the brief on behalf of amici curiae Oregon AFL-CIO, Oregon Education Association, Oregon Public Employees Union, Oregon State Firefghters Council, and Service Employees International Union Local 503.

          Landau, J., dissented and fled an opinion, in which Balmer, C.J., and Brewer, J., joined.

         Case Summary:

         Petitioner brought this unfair labor practice action against the City of Lebanon after a city councilor published in a local newspaper a letter disparaging labor unions and calling on the city's employees to decertify their existing union. The Employment Relations Board concluded that the city had engaged in an unfair labor practice based on the councilor's conduct, but the Court of Appeals reversed, concluding that the councilor was neither a public employer nor a public employer representative within the meaning of Oregon's Public Employee Collective Bargaining Act (PECBA). Held: Under PECBA, it is an unfair labor practice for a public employer to interfere with employees in their exercise of rights to participate in labor organizations, or to interfere with the formation, existence or administration of any labor organization. "Public employer representative" should be construed broadly in this context, in order to further the legislature's intent in enacting PECBA. Whether an individual acts as a public employer representative is determined based on whether employees of a public employer would reasonably believe that the individual acted on behalf of the public employer in committing the unfair labor practice. In applying that standard, adjudicators should consider factors such as whether the individual occupied a high-ranking position, whether the individual had policy-making authority, whether the person acted in an official capacity when committing the unfair labor practice, whether the individual had the power to hire and fire employees, and whether the public employer disavowed the actions of the individual.

         The decision of the Court of Appeals is reversed. The case is remanded to the Employment Relations Board for further proceedings.

          BALDWIN, J.

         This case requires us to consider whether the City of Lebanon (city) committed an unfair labor practice under Oregon's Public Employee Collective Bargaining Act (PECBA), ORS 243.650 - 243.782, when one of its council members, Campbell, wrote a letter to a local newspaper disparaging labor unions in general and calling for city employees to decertify their existing union. The Employment Relations Board (ERB or board) concluded that the city had engaged in an unfair labor practice based on Campbell's conduct. The Court of Appeals reversed, concluding that the city was not liable because Campbell had not acted as a "public employer or its designated representative" within the meaning of PECBA. AFSCME Council 75 v. City of Lebanon, 265 Or.App. 288, 336 P.3d 519 (2014). For the reasons explained below, we reverse the decision of the Court of Appeals, and remand to ERB for further proceedings.

         I. BACKGROUND

         The undisputed facts, as summarized by the Court of Appeals, are:

"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 denned 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 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:
"T 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 de-certify your union captors. As an individual and former union member I believe you can put your union dues to better use in your own household budget and in supporting causes that truly express your own values.'
"'Sincerely, '
"'Margaret A. Campbell'
"'City Councilor'
"'Ward IF'
"The newspaper published an article that summarized Campbell's letter. That article noted that the letter could be found on the newspaper's website and stated that Campbell planned to read the letter at a city council meeting. The parties later stipulated that Campbell did not read the letter at the meeting."

City of Lebanon, 265 Or.App. at 289-91 (alterations in original).

         As a result of Campbell's conduct, AFSCME Council 75 (union) filed an unfair labor practice complaint against the city, alleging that Campbell's comments were made in her official capacity as a council member. The parties submitted the case on stipulated facts directly to ERB. The board concluded that the city violated PECBA when Campbell, in her letter, advised city employees "to seek out the Department of Labor website where you can find instructions on how to de-certify your union captors."[1] The board issued a cease-and-desist order and required the city to post an official notice of its wrongdoing. See ORS 243.676 (authorizing such remedy when unfair labor practice established). The board reasoned that a "public employer [under the PECBA] is liable for the actions of its officials" and that, because Campbell "spoke as the City's representative, liability for her remarks is ascribed to the City." The board observed that Campbell was "a member of a six-person Council in which the City Charter vests all powers. The Council is the public employer[, ] and Campbell shares that status because she is a member of the Council." (Emphasis in original.) The board further noted that Campbell, "as a member of the council that is responsible for formulating all City policies and overseeing all City operations, is a public employer."[2]

         In the Court of Appeals, the city assigned error to ERB's conclusion that Campbell acted as a public employer or its designated representative under PECBA when she submitted her letter to the newspaper.[3] The Court of Appeals agreed with the city and reversed. The court concluded that Campbell was not the city's "designated representative" within the meaning of PECBA, because the record lacked any evidence that the city had "specifically designated" Campbell to act as its representative. City of Lebanon, 265 Or.App. at 295-96. Further, the court concluded that Campbell could not be a "public employer" under PECBA, because she was not acting as an agent when she submitted her letter to the local newspaper:

"The union raises an interesting question by asserting that we should apply agency principles in this case: whether a public employer can be liable for an unfair labor practice committed by an agent other than its designated representative. However, we need not resolve that question because, even assuming without deciding that it is appropriate to apply agency principles in this context, we conclude that Campbell was not acting as the city's agent when she wrote and sent her letter."

Id. at 297 (footnote omitted).

         We accepted the union's petition for review to determine whether Campbell was either a "public employer" or a "designated representative" of the city under PECBA when she submitted her letter to the newspaper. On review, the city does not challenge ERB's conclusion that the portion of Campbell's letter urging city employees to decertify their union would constitute an unfair labor practice under ORS 243.672(1)(a) and (b) if committed by "a public employer or its designated representative." The only issue for us to resolve, therefore, is whether the city may be held liable for Campbell's actions because she was either a "public employer" or its "designated representative" within the meaning of PECBA.

         II. ANALYSIS

         A. Purposes of PECBA and the NLRA

         We begin our analysis by briefly examining the legislature's purpose in enacting PECBA. This court has observed that, by enacting PECBA, first passed in 1973, "the legislature has provided a comprehensive statutory scheme authorizing and regulating collective bargaining between municipal and other public employers and employees, administered by ERB." City of Roseburg v. Roseburg City Firefighters, 292 Or 266, 268, 639 P.2d 90 (1981). This court noted that PECBA was designed to improve relations between public employers and their employees:

"*** PECBA is intended to protect [public employees'] economic welfare during their employment and to provide a means for them to affect certain negotiable working conditions. Another policy served by PECBA is to protect public safety by the substantive device of prohibiting strikes of public safety employees. The substantive goal of that ban is prevention of interruption in the provision of essential government services. The class of persons to be benefited by this policy extends beyond the population of any city. PECBA is expressly premised upon a legislative determination that the people of the state have an interest in public employment relations at both the state and local levels of government."

Id. at 276.

         Basically, in enacting PECBA, the legislature extended to public employees in Oregon the same benefits and protections that federal law had long afforded to employees in the private sector under the National Labor Relations Act (NLRA).[4] Congress enacted the NLRA, a sweeping piece of labor legislation, in 1935. The overarching purpose of the NLRA, also known as the Wagner Act, was to protect employees against employer interference with their organizational rights. See John E. Higgins ed., 1 The Developing Labor Law 29 (6th ed 2012) ("The prime function of the Act was to protect employees against employer tactics designed either to obstruct organizational efforts or to withhold the fruits of those efforts."); see also Radio Officers' Union of Commercial Telegraphers Union, A.F.L. v. NLRB, 347 U.S. 17, 40, 74 S.Ct. 323, 98 L.Ed. 455 (1954) ("The policy of the Act is to insulate employees' jobs from their organizational rights."). Senator Wagner, the sponsor of the bill, emphasized that purpose in his statements on the Senate floor. He argued that employees' ability to join the labor organizations of their choosing, free from employer interference, had become a necessity in the modern industrial era: "Caught in the labyrinth of modern industrialism and dwarfed by the size of corporate enterprise, [the employee] can attain freedom and dignity only by cooperation with [other employees]." 79 Cong Rec 7565 (May 15, 1935) (statement by Senator Wagner). He insisted that bill's purpose was to ensure employees' freedom of choice with regard to their organizational rights: "[The bill] does not force or even counsel any employee to join any union if he prefers to deal directly or indirectly with his employers. It seeks merely to make the worker a free man in the economic as well as the political field." Id.

         To accomplish its broad purpose of protecting against interference with labor rights, the NLRA conferred on employees a "triad of rights": (1) the right to organize; (2) the right to bargain collectively; and (3) the right to engage in strikes, picketing, and other concerted activities. Higgins, The Developing Labor Law, at 28. The NLRA further assured the enjoyment of those rights by declaring it an unfair labor practice for an employer to, among other things, interfere with, restrain, or coerce employees in the exercise of their rights under the Act. 29 USC § 158(1).

         In many respects, PECBA was patterned after the NLRA. See Elvin v. OPEU, 313 Or 165, 175, 832 P.2d 36 (1992) (noting that PECBA was "modeled" after federal act); Donald W. Brodie, Public Sector Collective Bargaining in Oregon, 54 Or L Rev 337, 337-38 (1975) (same).[5] Similar to the protections that the NLRA provides for private employees, PECBA provides public employees the right to form and join labor organizations, ORS 243.662; requires good faith in collective bargaining, ORS 243.672(e); and prohibits unfair labor practices, ORS 243.672(c). See Carlton J. Snow, The Steelworkers Trilogy in Oregon's Public Sector, 21 Willamette L Rev 445, 455 (1985) (identifying similar provisions in PECBA and NLRA). Indeed, PECBA and the NLRA define what constitutes an "unfair labor practice" in nearly identical ways. The NLRA provides, among other things, that it is an unfair labor practice for an employer:

"(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title;
"(2) to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it[.]"

29 USC § 158(a). Likewise, under PECBA, it is an unfair labor practice for "a public employer or its designated representative" to, among other things:

"(a) Interfere with, restrain or coerce employees in or because of the exercise of rights guaranteed in ORS 243.662.
"(b) Dominate, interfere with or assist in the formation, existence or administration of any employee organization."

ORS 243.672(1).

         In addition to their nearly identical provisions relating to unfair labor practices, PECBA and the NLRA both express policies of promoting collective bargaining and protecting employees' organizational rights. The NLRA, for example, declares that it is the policy of the United States to reduce the causes of industrial strife by encouraging collective bargaining and protecting employees' exercise of "full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection." 29 USC § 151. Similarly, the 1973 Legislative Assembly declared it to be the policy of Oregon that "[t]he people of this state have a fundamental interest in the development of harmonious and cooperative relationships between government and its employees." ORS 243.656(1). The Oregon legislature also declared that the purposes of PECBA are to "obligate public employers, public employees and their representatives to enter into collective negotiations with willingness to resolve grievances and disputes relating to employment relations" and to promote improved employer-employee relations "by providing a uniform basis for recognizing the right of public employees to join organizations of their own choice, and to be represented by such organizations in their employment relations with public employers." ORS 243.656(5).

         B. Whether Campbell's Statements May Be ...


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