Oregon State Legislature Makes Sweeping Changes for Public Sector Unionized Employers
By J. Chris Duckworth & Jessica E. Wilcox - Bullard Law
June 20, 2019
Oregon public employers with unionized workforces (“Employers”) take note: last week, the Oregon State Legislature passed House Bill (“HB”) 2016, which will place numerous new restrictions and requirements on how government Employers do business with unions and unionized workforces. Both houses of the Oregon State Legislature have passed the bill, and Governor Kate Brown is expected to sign it into law. The law will go into effect January 1, 2020.
HB 2016 is in part the Oregon State Legislature’s response to the U.S. Supreme Court’s 2018 ruling in Janus v. AFSCME. In that case, the Court ruled that the First Amendment of the U.S Constitution prohibits mandatory payments to a public employee’s union, including “fair share” fees, as a condition of employment. Oregon, like many states, had laws concerning mandatory union payments; Janus essentially rendered those provisions of the law unconstitutional. HB 2016 is an attempt to bring Oregon law in compliance with Janus. However, the Oregon Legislature went much further than that. HB 2016 adds numerous new union and employee rights requirements Employers must meet that are currently addressed in collective bargaining negotiations.
Overview of HB 2016
HB 2016 changes the landscape for dues deductions, requires Employers to provide paid time to some employees for certain union activities, allows the renegotiation of prior agreements for union-related release time, proscribes permissive union access to employees, employee information and employer property, and codifies limitations on Employer communications to employees about their decision of whether or not to join or pay a union.
The new law updates the process for public employees to authorize dues deductions and the procedures Employers must follow to deduct dues and remit payments to the union. The following provisions are noteworthy:
• Unions must give Employers a list identifying employees who have provided authorizations to the union, and Employers must rely on the union’s list to make the authorized dues deductions and remit payment to the union;
• Employees may authorize dues deductions by notifying their union over the phone, in writing or electronically;
• If an employee wants to stop paying dues, they must use the method described in their dues deduction authorization agreement with their union. If no method is specified, employees must deliver an “original signed, written statement of revocation to the headquarters of the labor organization”;
• Employers must deduct and remit dues to a non-certified union if authorized by an employee; and
• Employers will be liable to the union for any failure to make authorized deductions without recourse to the employee.
Once effective, HB 2016 will also require Employers to provide reasonable paid time to designated union representatives in the bargaining unit to conduct union business in the workplace. This includes paid time to investigate grievances, attend investigatory meetings and due process hearings to prepare for and participate in collective bargaining, arbitrations, and administrative hearings; and to meet with new employees to provide information about the collective bargaining agreement.
Under this bill, unions will have the right to reopen and bargain over any current collective bargaining agreement language concerning “release time,” or leaves of absences for designated union representatives in the bargaining unit to conduct union business.
Furthermore, this bill will set into law the rights that unions will have concerning access to employees. Unions will have the right to meet with new employees without the employee suffering loss of pay or benefits. Unions will have the right to meet with current employees during non-working time to investigate grievances and other issues. Employers must allow unions to use their property for union meetings, provided they don’t interrupt operations. Unions will have the right to conduct meetings without undue interference from the employer, and the union has the right to establish the conduct rules at those meetings, not the Employer.
Additionally, the law will require Employers to provide employee information to the Union quarterly, including phone numbers, addresses and details about their job and pay. Employers must provide this information for newly hired employees within 10 calendar days after their date of hire.
Finally, HB 2016 makes it an unfair labor practice for Employers to attempt to influence an employee to not join a union or resign from the union, and to encourage an employee to revoke a dues deduction.
Impact on Public Sector Employers
Assuming the Governor signs it, the new law will take effect on January 1, 2020. We recommend Employers take action now to ensure they will be in compliance with its changes and new requirements. It is likely Employers will need to communicate with their unions on several issues addressed in the new law, and Employers should be prepared for unions to potentially demand to bargain over the changes resulting from the law and/or the impacts and effects of the law.
A number of this new law’s provisions are concerning from a constitutional perspective in light of the Janus case. For example, Janus prohibits deducting dues unless an employee has “clearly and affirmatively” consented. However, under HB 2016, employees may authorize dues deduction over the phone with their union, and employers must honor the union’s dues deduction list. Because it is unclear under Janus if a phone authorization constitutes adequate consent, employers in Oregon may be faced with the difficult task of complying with state law while possibly not honoring employees’ First Amendment rights under Janus.
It is likely that the constitutionality of the new law will be challenged in court based on the Janus decision. We will continue to track any developments related to HB 2016 and keep you updated. As always, our team at Bullard Law is glad to assist with any questions related to this legal development.