Court of Appeals Reverses ERB on SEIU Home Health Care Case

Today the Oregon Court of Appeals issued a decision overturning the Oregon Employment Relations Board's finding that the Oregon Home Care Comission (HCC) had committed an unfair labor practice. The ERB had found that the HCC, by and through the Department of Human Services, told employees pay would be affected because of "unionization." Under Oregon law, it is an unfair labor practice for an employer, or an employer's designated representative, to interfere with, restrain or coerce employees in or because of the exercise of their union rights. This statement was found to be interference because of union activity. The Court, on the other hand, found that even though DHS "administers a program . . . through which it authorizes payments to home care workers" employed by the Commission, DHS was not a designated representative. Because there was no dispute the DHS was not the employer, the Court found that DHS could not have committed an unfair labor practice under ORS 243.672(1)(a). The crux of the decision is that a third party, even one who is acting in concert with an employer, is not liable for unfair labor practices unless that third party is a "designated representative."

ERB Declares Oregon Trail Strike Lawful

The Employment Relations Board issued a decision today dismissing the Oregon Trail School District's petition to declare the current strike unlawful. The crux of the District's petition had been that the Association struck based upon permissive subjects. As support for that argument, the District pointed to two major facts: a recognition clause proposal that had been withdrawn by the Association prior to the strike and newspaper articles indicating that the reason for the strike was a failure to agree on teacher evaluation and prep-time. The ERB rejected both arguments. First, it held that where a party promptly withdraws a permissive proposal after objection from the other side and there is no evidence that the proposal was a cause of the strike, it does not render the strike unlawful. Second, it held that where there are no permissive proposals in the final offer or in the strike notice, newspaper reports of other permissive subjects being the "real" basis for the strike are not probative of strike unlawfulness. In sum, the ERB correctly rejected this petition for what it was: a last ditch attempt by the District to avoid having to bargain with its employees based upon ill conceived legal theories.