HB 2016 is the Oregon Legislature’s Response to the Janus Decision – and a Lot More

By Sharon Rudnick and Randy Geller

On behalf of our public sector clients, we have been monitoring Oregon House Bill 2016, which was signed by Governor Brown on June 20th. The changes to the law made by HB 2016 become effective January 1, 2020, but preparation should begin as soon as possible. This is a not complete description of all of the bill’s provisions, nor is this legal advice. For that, please contact us.

HB 2016 was advertised as the Legislative Assembly’s and Oregon public employees’ unions’ response to the U.S. Supreme Court’s Janus decision. But it does a great deal more, amending the Public Employee Collective Bargaining Act (PECBA) in many ways.

Designated Representative Receives Paid Time

Under the new law, an Oregon public employer must grant a “designated representative” paid time or release time (discussed below) to engage in the following activities:

    1. Investigate and process grievances or other work-place complaints;
    2. Attend investigatory meetings or due process hearings;
    3. Participate in or prepare for proceedings under PECBA, or that arise from a dispute involving a collective bargaining agreement (CBA), including arbitrations, administrative hearings and Employment Relations Board (ERB) proceedings;
    4. Act as a representative of the bargaining unit for purposes of collective bargaining;
    5. Attend labor-management committee meetings;
    6. Provide information regarding a CBA to new hires at orientations or “any other meetings that may be arranged for new hires;”
    7. Testify in a legal proceeding subject to a subpoena; and
    8. “Perform any other duties agreed upon by a public employer and an exclusive representative in a CBA or any other agreement.”

The bill defines a “designated representative” as a public employee who is designated by the union for whom paid time or release time is granted under HB 2016. This will likely be a shop steward, grievance chair, negotiating team member, or other individual with similar responsibilities.

A public employer must grant a designated representative “reasonable time” to engage in the activities described above during the representative’s regularly scheduled work hours without loss of compensation, seniority, leave accrual or other benefits. Reasonable time is not defined but is likely a mandatory subject of bargaining.

Designated Representative May Also Receive Release Time

A public employer and a union may negotiate an agreement whereby the employer provides a reasonable amount of release time for public employees to serve as designated representatives. Upon the union’s request, any existing provision in a CBA regarding release time must be reopened for renegotiation. ”Release time” is defined as the period of time when a designated employee takes leave of absence from the employee’s regular public employment to conduct union business. This in effect allows a designated employee to take a leave of absence without pay from his/her regular job to do union business and guarantees reinstatement at the end of the period of release time. It does not seem that the law makes paid time or release time mutually exclusive. That is, a designated employee has the statutory right to reasonable paid time to engage in union matters and may also have the negotiated right to release time.

Union Access to Bargaining Unit Employees

A public employer must provide the exclusive representative (union) with “reasonable access to employees within the bargaining unit.” For new hires, that includes (but is not limited to): the right to meet with new employees without the employee losing any pay or benefits and the right to meet with new employees within 30 calendar days of hire for at least 30 minutes but not more than 2 hours during new employee orientation, or, if there’s no orientation, at individual or group meetings.

For employees who are not new hires, reasonable access means the right to meet with employees during the employees’ regular work hours at the employee’s regular work location to investigate and discuss grievances, workplace-related complaints and other matters related to employee relations and the right to conduct meetings at the employees’ regular work location before or after the employees’ regular work hours or during meal or break periods. The exclusive representative may hold these meetings at a time and place set by the exclusive representative, so long as the meetings “do not interfere with the employer’s operations.” The public employer must allow the exclusive representative to hold meetings with employees or the bargaining unit at the employer’s facilities or property.  The exclusive representative “shall have the right to conduct meetings without undue interference and may establish reasonable rules regarding appropriate conduct for meeting attendees.”

If the public employer has the information in its records, it shall provide the exclusive representative, in an editable digital format agreed to by the exclusive representative, the following information for each bargaining unit employee:  name and date of hire, contact information (phone numbers, email addresses, mailing addresses) and job title, salary and work site.  The information must be provided within 10 calendar days from date of hire and every 120 calendar days thereafter.

The exclusive representative also has the right to use a public employer’s email and other similar communications systems to communicate with bargaining unit employees about collective bargaining, including the administration of an agreement, the investigation of grievances or other disputes related to employment relations, and matters “involving the governance or business of the labor organization.”

Deduction of Union Dues

A CBA may authorize a public employer to make a deduction from the wages of a public employee “who is a member of the labor organization” (i.e. union member) for union dues and fees. The authorization must remain in effect until the public employee revokes it in the manner provided in the deduction agreement between the union and the employee. The union must provide the employer with a list identifying the public employees who have authorized the deduction. The employer “shall rely on the list to make the authorized deductions and to remit payment to the labor organization.” An employer that makes deductions and payments in reliance on the list is not liable to the employee for actual damages resulting from an unauthorized deduction. A labor organization that receives payment from the employer shall defend and indemnify the employer for the amount of any unauthorized deduction resulting from its reliance on the list. An employer who makes an unauthorized deduction or a union that receives an unauthorized deduction is liable to the employee only for actual damages not to exceed the amount of the unauthorized deduction.

Unfair Labor Practice

It is an unfair labor practice for a public employer to “attempt to influence” an employee to resign from or decline to join a union, or to encourage an employee to revoke an authorization for dues deduction. This seems to be the provision in HB 2016 most directly responsive to the fears unions have expressed about membership declines.

As noted, this is a not complete description of all of the bill’s provisions, nor is this legal advice. For that, please contact us.

 


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