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Ore.: Labor Board Finds that Public Employer Not Required to Record Bargaining Session with Union

By Rita Zeidner  7/22/2014
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The Washington Dispatchers Association committed an unfair labor practice by insisting that its bargaining sessions with the Washington County Consolidated Communications Agency (WCCCA) be recorded, according to the Oregon State Employee Relations Board (OSER).

In the same June 16, 2014, ruling, OSER held that management did not violate state labor law by initially refusing to bargain with the dispatchers, so long as the union continued its unlawful insistence upon electronic recording.

The court noted that under state and federal law, parties are obligated to bargain about “mandatory” subjects of bargaining. However, they are not obligated to bargain about permissive subjects of bargaining. Further, as to the latter, a party may not insistent upon a permissive subject of bargaining over the objection of the other party.

In this case, management argued that electronic recording of bargaining sessions is a permissive subject. Thus the dispatchers’ insistence on that matter was unlawful. The dispatchers argued that electronic recording is a mandatory subject of bargaining and thus it was entitled to insist upon that matter.

The OSER agreed with management, citing prior National Labor Relations Board (NLRB) rulings upheld in federal appeals courts that deemed electronic recordings a permissive subject of bargaining, not a mandatory one. Prior rulings determined that electronic recording of bargaining sessions tends to impede bargaining by:

*Causing parties to talk for the record, rather than advance toward an agreement.

*Formalizing bargaining, thereby sapping the spontaneity and flexibility often necessary to successful negotiations.

*Commencing substantive bargaining on a discordant note.

*Giving notice that one party lacks confidence in the collective bargaining process and  anticipates litigation rather than agreement.

In addition, if electronic recording were a subject, the parties could get embroiled in this preliminary issue and never begin substantive bargaining.

Dismissing the dispatchers’ argument that the 35-year-old NLRB precedent was obsolete, OSER concluded that the principle withstood the test of time and should be honored.

OSER also disagreed with the dispatcher’s argument that the bargaining sessions were public meetings and thus subject to verbatim recording under Oregon law. A collective bargaining session is not a public meeting within the meaning of the Oregon “Public Meeting” law, the panel found.

Although the dispatchers violated state law, OSER declined to assess a civil penalty. It noted that because the recording issue was one of first impression, the union could not have known that its conduct was unlawful.

Washington County Dispatchers v. Washington County Consolidated Communications Agency, Employment Relations Board of the State of Oregon Case No. UP-015/27-13 (June 16, 2014).

Rita Zeidner is a freelance business writer and former senior writer for HR Magazine.
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