[5-01-00] Association of Oregon Correction Employees, Complainant v. State of Oregon, Department of Corrections, Respondent and AFSCME, Council 75, Intervenor. ORS 243.672(1)(a), (b), (c), and (f), Case No. UP-23-98

Oral argument before the Board on September 8, 1999, upon objections by all three parties to a proposed order issued by Administrative Law Judge (ALJ) William Greer following a hearing on January 22, 1999, in Salem, Oregon. The hearing closed on February 16, 1999, upon receipt of the parties' post-hearing briefs.

John Hoag, Attorney at Law, Goodpasture Plaza, 323 Goodpasture Island Road, Eugene, Oregon 97401, represented Complainant.

Rudolph S. Westerband, Attorney-in-Charge, Department of Justice, Labor and Employment Section, 1162 Court Street N.E., Salem, Oregon 97310, represented Respondent.

Monica Smith, Attorney at Law, Smith, Gamson, Diamond &, Olney, Jefferson Office Park, 2110 S.W. Jefferson, Suite 200, Portland, Oregon 97201-7712, represented Intervenor.

Association of Oregon Correction Employees (AOCE) filed this complaint on June 4, 1998, and amended it on October 6, 1998. As amended, the complaint alleged that the State of Oregon (State), Department of Corrections (DOC) violated ORS 243.672(1)(a), (b), (c), and (f) by recognizing American Federation of State, County, and Municipal Employees (AFSCME) as exclusive representative of public employees employed at Two Rivers Correctional Institution (TRCI), a new facility.

Both the State and AFSCME filed answers to the amended complaint on January 19, 1999, in which they admitted and denied certain allegations. At hearing, the parties examined witnesses and offered exhibits.

The issue is: Did the State's recognition of AFSCME as exclusive representative of a bargaining unit that includes public employees employed at TRCI violate ORS 243.672(l)(a), (b), (c), and (f)? More specifically, did the State not have objective indications of AFSCME majority status when the State recognized AFSCME as exclusive representative of a bargaining unit that included TRCI personnel?

The ALJ concluded that the State violated ORS 243.672(1)(b), (c), and (f) by voluntarily recognizing AFSCME as the exclusive representative for the employees at TRCI. We conclude that the State did not violate ORS 243.672(1)(a), (b), (c), and (f) and dismiss the complaint for the reasons discussed below.

Having the full record before it, this Board makes the following:

RULINGS

1. The State filed a motion to dismiss the complaint. The complaint contained allegations which were sufficient to warrant a hearing on whether AOCE could prove that the State had a good faith doubt about AFSCME's majority status. The motion to dismiss was correctly denied by the ALJ.

2. On August 13, 1999, the State filed a motion to reopen the record for the limited purpose of supplementing the record with an affidavit and one page concerning payroll records. On August 31, 1999, we issued an order granting the motion, and we received the offered evidence. AOCE was offered an opportunity to rebut the information entered by the State, but did not.

3. The ALJ's remaining rulings have been reviewed and are correct.

FINDINGS OF FACT

1. AOCE and AFSCME are labor organizations. The State is a public employer, and DOC is a State agency.

2. TRCI, a new correctional institution in Umatilla, is being phased into operation.

Representation of DOC personnel

3. In addition to TRCI, DOC operates correctional institutions throughout the State. Public employees at those institutions are organized into six bargaining units that are represented by three labor organizations: AFSCME, AOCE, and Oregon Public Employees Union (OPEU):

Columbia River Correctional Institution in Portland (CRCI) AFSCME

Eastern Oregon Correctional Institution in Pendleton (EOCI) AFSCME

Mill Creek Correctional Facility in Salem (MCCF) AOCE

Oregon Correctional Intake Center in Oregon City (OCIC) AFSCME

Oregon State Correctional Institution in Salem (OSCI) AOCE; OPEU

Oregon State Penitentiary in Salem (OSP) AOCE

Oregon Women's Correctional Center in Salem (OWCC) AFSCME Powder River Correctional Institution in Baker City (PRCI) AFSCME

Santiam Correctional Institution in Salem (SCI) AFSCME

Shutter Creek Correctional Institution in North Bend (SCCI) AFSCME

Snake River Correctional Institution in Ontario (SRCI) AFSCME

South Fork Forest Camp in Tillamook (SFFC) AOCE

4. AFSCME represents approximately 1,516 employees in four DOC bargaining units: (1) a statewide "security unit" that includes strike-prohibited employees at all institutions, other than those represented by AOCE; (2) a statewide "non-security unit" of strike-permitted employees at all institutions, other than those represented by AOCE or OPEU; (3) a "mixed unit" of all strike-prohibited and strike-permitted employees at OWCC; and (4) a "craft unit" of all dentists employed by DOC.

5. AOCE represents a "mixed unit" of DOC employees, including personnel at OSP, MCCF, and SFFC, and a unit of strike-prohibited employees at OSCI.

6. OPEU represents the strike-permitted employees at OSCI.

Recognition provisions in State-Afscme collective bargaining agreements

7. In 1990, AFSCME and the State agreed to redefine AFSCME's existing bargaining units (except for a unit that included OSP and OWCC personnel) into one strike-prohibited unit and one strike-permitted unit. They also agreed: "[A]s new institutions come on line, they will be added to the redefined units as appropriate and the parties shall bargain separate working conditions."

8. Based on the 1990 agreement, the State recognized AFSCME as the exclusive representative of a bargaining unit of personnel employed at other institutions that were being prepared for operation. OPEU challenged that recognition and filed a complaint. This Board dismissed the complaint, and the court of appeals affirmed. OPEU v. State of Oregon, Corrections Department and Executive Department and AFSCME, 115 Or App 593, 839 P2d 276 (1992), affirming 12 PECBR 876 (1991) (hereafter cited as OPEU).

AFSCME recognition as representative of TRCI personnel

9. On June 3, 1998, Department of Administrative Services (DAS) Labor Relations Manager Mark Hunt wrote AFSCME that the State would recognize AFSCME as the exclusive representative of public employees employed at TRCI.⁽¹⁾ (DAS is the State's designated representative for collective bargaining; ORS 240.321(1).)

10. When the State recognized AFSCME as the exclusive representative at TRCI, the State believed that AFSCME had majority support among its statewide, strike-prohibited and strike-permitted bargaining units.⁽²⁾

11. On September 1, Hunt wrote AFSCME that AOCE had filed a challenge to AFSCME's representation of TRCI personnel⁽³⁾ and that the employer would "maintain a position of neutrality." AFSCME understood from that letter that the State was refusing to bargain TRCI issues. On September 29, the State agreed to bargain with AFSCME over TRCI issues.

12. After the State extended its recognition of AFSCME to include personnel being hired to open and operate TRCI, the State and AFSCME agreed to apply to TRCI employees, all terms of the current collective bargaining agreement, except Article 25. As of the hearing date, the State and AFSCME were bargaining over the terms of Article 25, as applicable to TRCI personnel.

Phase-in of TRCI

13. DOC is phasing in the operation of TRCI. DOC plans to hire personnel incrementally from July 1998 into the 2001-2003 biennium and to house 1,632 inmates by November 2001. DOC is first seeking transfers from other institutions. TRCI expects to employ approximately the following numbers of security (strike-prohibited) and nonsecurity (strike-permitted) employees by the dates noted: June 30, 1999--20; December 31, 1999--226; June 30, 2000--371; December 31, 2000--456; June 30, 2001--460; June 30, 2003, when fully operational--495.

14. As of January 12, 1999, TRCI employed 23 represented personnel. (The hearing of this complaint occurred on January 22, 1999.)

15. At the time of the hearing all of the 23 represented employees had transferred from other institutions. A majority of those employees transferred from the AFSCME represented unit at EOCI in Pendleton, which is 35 miles from the new facility. All but one of the remaining employees transferred from the AFSCME unit at PRCI, which is 120 miles away in Baker. Only one employee has transferred from an AOCE represented unit.⁽⁴⁾

16. AOCE has not filed a petition to represent employees at Two Rivers.

CONCLUSIONS OF LAW

1. This Board has jurisdiction over the parties and subject matter of this dispute.

2. The State's recognition of AFSCME as exclusive representative of DOC bargaining units, as expanded to include TRCI public employees, did not violate ORS 243.672(l)(a), (b), (c), and (f).

The State voluntarily extended its recognition of AFSCME to include personnel employed at TRCI, while the new institution was being phased in to operation. AOCE alleges that a question concerning AFSCME's representation existed at that time and, therefore, the State's recognition amounted to a favoring of AFSCME that violated the Public Employee Collective Bargaining Act (PECBA). We find the State had no reasonably objective basis to doubt AFSCME's majority support and that there is no evidence in this record showing that the recognition of AFSCME at TRCI favored AFSCME or discriminated against employees in violation of the PECBA.

The PECBA Statutes and OPEU

This Board has previously considered whether the State's voluntary recognition of an exclusive representative at new corrections institutions violates provisions of the PECBA. We determined in OPEU that "new prison facilities are part of an integrated prison system" and "that employees at each new institution will not constitute an appropriate bargaining unit." OPEU at 889.

The court of appeals, in affirming this Board's decision in OPEU, expressed caution about the question of whether a new institution can be the site of a separate appropriate bargaining unit but also decided that there is no way to determine this until all the employees who might be members are employed and the place is in operation. The court wrote that this issue was "unnecessary to the disposition of the complaint and is probably premature." OPEU v. State of Oregon, DOC and AFSCME, 115 Or App 593, at 597(1992).

In the case at hand the issue of whether new institutions may be recognized by this Board as site specific bargaining units is also premature and not an issue for our determination because AOCE has not filed a petition to represent the employees at TRCI.⁽⁵⁾

AFSCME argues that there could be circumstances where the contract recognition language may not apply but that those circumstances have not been presented by AOCE in this case. We agree. AOCE has not filed a representation petition, and the evidence fails to establish that the State had a good faith doubt, based upon reasonable objective standards, of AFSCME's continued majority status. It was not unlawful, therefore, for the State to recognize AFSCME as per the agreement and to bargain the local working conditions so that as employees are hired they are protected by site specific contract language.⁽⁶⁾

ORS 243.666(3) provides that: "Nothing in this section prevents a public employer from recognizing a labor organization which represents at least a majority of employees as the exclusive representative of the employees * * *." In OPEU, this Board said "an employer must have a good faith belief that the recognized union represents a majority of the employees in the new unit." This Board also found the agreement negotiated between the State and AFSCME to be "analogous to, and effective as, voluntary recognition by the employer." Citing an earlier case, we wrote:

"'The Public Employee Collective Bargaining Act (PECBA) allows employers and labor organizations to enter into agreements for voluntary recognition. ORS 243.666(3). Such agreements usually are memorialized in resolutions approved by the public employer's governing board or, as here, in collective bargaining agreements. Voluntary recognition, as an alternative to the statutory election and certification procedures, accomplishes three purposes: (1) it establishes the bargaining unit; (2) it designates an exclusive representative as defined in ORS 243.650(8); and (3) it witnesses the majority support of the labor organization among the employees in the described unit. * * *' OSEA v. Reynolds School Dist., 6 PECBR 4543, 4550(1981); affirmed sub nom Reynolds School Dist. v. OSEA, 58 Or App 609, 650 P2d 119 (1982)." 12 PECBR at 885.

This Board concluded that OPEU "did not prove that the State had or should have had a good faith doubt, based on reasonable objective standards, about AFSCME's continued majority status in the recognized units at the time of hearing or in the future." 12 PECBR at 888. ORS 243.666(3) permits voluntary recognition of a union that represents a majority of employees in a bargaining unit. To make that determination, an employer can require a card check, review employee dues payroll deduction records, or utilize other objective means to determine whether a majority of bargaining unit members actually support the union.⁽⁷⁾

The record here shows several things regarding AFSCME's majority status: (1) because of the location of the facility in Umatilla, 22 of the 23 employees who transferred to TRCI are from the AFSCME units at Baker and Pendleton; (2) AOCE has not petitioned to represent the employees who have transferred to TRCI; and (3) the State had reasonable objective evidence (payroll records) of AFSCME's majority support in its statewide bargaining units.

(1)(a) Claim

AOCE alleged a violation of ORS 243.672(1)(a)⁽⁸⁾ claiming that the voluntary recognition of AFSCME violated the "in" element of (1)(a). To prove an "in" section (1)(a) claim we consider whether the "natural and probable effect of the employer's conduct would tend to interfere with, restrain and coerce employees in the exercise of their PECBA rights." ATU v. Tri-Met, Case No. UP-48-97, 17 PECBR 780, 789 (1998). There is no evidence in this record that there has been an interference with, restraint, or coercion of DOC employees' rights to be represented at TRCI. AOCE failed to produce evidence to support the alleged (1)(a) violation and we dismiss this element of the complaint.

(1)(b) Claim

The State and AFSCME assert that the TRCI employees accreted into the existing AFSCME bargaining units. The State-AFSCME recognition agreement provides: "[A]s new institutions come on line, they will be added to the redefined [AFSCME bargaining] units as appropriate and the parties shall bargain separate working conditions."

AOCE alleges that the State's recognition of AFSCME as exclusive representative of the bargaining units, as expanded to include TRCI public employees, violated the PECBA, including ORS 243.672(1)(b). That statute provides that it is an unfair labor practice for a public employer to "[d]ominate, interfere with or assist in the formation, existence or administration of any employee organization."

This Board has concluded that an employer violated section (1)(b) by engaging in conduct that unduly favored or disfavored a labor organization. For instance, this Board has held that an employer violated section (1)(b) by requiring bargaining unit employees to sign a union dues and election membership form;⁽⁹⁾ granting release time to bargaining unit employees to participate in labor organization activities;⁽¹⁰⁾ and encouraging bargaining unit personnel to attempt to remove themselves from a bargaining unit.⁽¹¹⁾ Further, this Board has commented that an employer's involvement in circulating a decertification petition among employees could violate section (1)(b)⁽¹²⁾ and that an employer would violate section (1)(b) by agreeing to pay salary to a bargaining unit employee who took a full-time position as a union officer⁽¹³⁾ or to pay for a union representative for time spent at a labor convention.⁽¹⁴⁾

To prove its section (1)(b) complaint, AOCE must establish that the State, when it granted recognition, had a good faith doubt, based on reasonable objective standards, that AFSCME had majority support in the expanded bargaining unit.⁽¹⁵⁾

The record indicates that the State granted recognition based on a reasonable objective belief that AFSCME represented a majority of public employees in the bargaining units, as expanded by the addition of the TRCI public employees.

The State's recognition of AFSCME as exclusive representative of the expanded bargaining unit was based on objective indications that AFSCME has majority support in the expanded bargaining unit. AOCE has failed to show that the State did not have reason to believe that AFSCME had less than majority status both before and after adding TRCI employees to the AFSCME bargaining units. This element of the complaint will be dismissed because the State's recognition of AFSCME did not amount to domination, interference with, or assistance of AFSCME, in violation of ORS 243.672(l)(b).

(1)(c) and (1)(f) Claims

AOCE also alleges that the State's recognition of AFSCME as exclusive representative of the expanded bargaining unit violated ORS 243.672(1)(c) and (f). AOCE has not presented evidence in this case to show that the State's conduct in recognizing AFSCME was discriminatory in regard to the terms and conditions of employment of TRCI public employees, nor is there evidence to show that the conduct encourages or discourages employees from membership in an employee organization. AOCE failed to prove that the State has made any hiring decisions based on the rights that employees did or might assert under the PECBA.⁽¹⁶⁾

For the State to be in violation of ORS 243.672(1)(f), we must find that there has been a violation of a specific provision of the PECBA.⁽¹⁷⁾ AOCE failed to prove a violation of any provisions of the PECBA from the facts presented in this case. We will dismiss these elements of the complaint.

ORDER

AOCE's complaint is dismissed.

DATED this 1st day of May 2000.

Board Member Thomas Concurring in part and Dissenting in part:

I concur with this Order but dissent from Ruling No. 1. AOCE's purpose in filing this complaint was to have us overturn our prior OPEU decision regarding AFSCME contract language. There is nothing in the complaint to indicate that AOCE would prove that the State had a good faith doubt about AFSCME's majority status. More importantly, in order for this complaint to move to hearing, AOCE needed to indicate that it was an injured party with standing to have this complaint heard. (ORS 243.672(3)). AOCE never filed a petition to represent the TRCI employees but rather came here complaining about the State/AFSCME contract language that voluntarily recognizes employees AOCE made no attempt to organize. The complaint does not allege or show how AOCE is an injured party and therefore it should have been dismissed after the investigation and prior to hearing.

1. At the time AFSCME represented 1,334 members at DOC and had 175 fair share payors.

2. Mark Hunt testified that the State assumes majority support unless there is some evidence, such as a Board petition, to suggest otherwise. He said: "Until we have a change in certification or recognition we have to assume that the...respective organization represents its members." Two Rivers Superintendent Robert Schielder also testified that he had no reason to believe that AFSCME would not or did not have majority support at TRCI. AFSCME represents over one-half of the approximately 3,000 Correction Department employees. When TRCI is fully operational it is expected to have 495 employees, which will not affect AFSCME's continued majority status with respect to its statewide units of 1,516 DOC employees.

3. Hunt was referring to AOCE's filing of this complaint on June 4, 1998.

4. AOCE does not represent any units in eastern Oregon.

5. We recognize that, although the issue of the appropriateness of stand-alone bargaining units for Two Rivers employees is not squarely presented by this dispute, dismissal of the complaint at least implicitly acknowledges that Two Rivers employees are appropriately included in AFSCME's broad strike-permitted and strike-prohibited units. While making such a determination in the context of a unit determination petition might be premature given the relatively few employees hired by the time of hearing, it is nonetheless unavoidable in the context of this unfair labor practice complaint.