City of Roseburg v. Roseburg City Firefighters, Local No. 1489

639 P.2d 90, 292 Or. 266, 1981 Ore. LEXIS 1209, 111 L.R.R.M. (BNA) 2932
CourtOregon Supreme Court
DecidedDecember 29, 1981
DocketC-28-80, CA 18932, SC 27638
StatusPublished
Cited by93 cases

This text of 639 P.2d 90 (City of Roseburg v. Roseburg City Firefighters, Local No. 1489) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Roseburg v. Roseburg City Firefighters, Local No. 1489, 639 P.2d 90, 292 Or. 266, 1981 Ore. LEXIS 1209, 111 L.R.R.M. (BNA) 2932 (Or. 1981).

Opinions

[268]*268TANZER, J.

This is judicial review of an order of the Employment Relations Board (ERB) finding the City of Roseburg and its city manager (Roseburg), a public employer, to have engaged in an unfair labor practice contrary to ORS 243.672(l)(e) by its refusal to bargain collectively with the exclusive representative of its employee firemen (Local 1489) and ordering Roseburg to cease and desist from its refusal. Roseburg sought judicial review and the Court of Appeals affirmed, citing our decision in LaGrande/Astoria v. PERB, 281 Or 137, 576 P2d 1204, aff’d on rehearing 284 Or 173, 586 P2d 765 (1978), and its own decision in Medford Firefighters Assn. v. City of Medford, 40 Or App 519, 595 P2d 1268, rev den 287 Or 507 (1979). We allowed review to examine the applicability of Article XI, section 2, and Article IV, section 1(5), of the Oregon Constitution, the so-called “home rule” amendments, to conflicting state and municipal legislation regulating public employment collective bargaining. Those amendments provide:

“* * * The Legislative Assembly shall not enact, amend or repeal any charter or act of incorporation for any municipality, city or town. The legal voters of every city and town are hereby granted power to enact and amend their municipal charter, subject to the Constitution and criminal laws of the State of Oregon * * Or Const, Art XI, § 2.
“The initiative and referendum powers reserved to the people by subsections (2) and (3) of this section are further reserved to the qualified voters of each municipality and district as to all local, special and municipal legislation of every character in or for their municipality or district. The manner of exercising those powers shall be provided by general laws, but cities may provide the manner of exercising those powers as to their municipal legislation. * * *” Or Const, Art IV, § 1(5).

By enactment of ORS 243.650 through 243.782, commonly referred to as the Public Employe Collective Bargaining Act (PECBA), the legislature has provided a comprehensive statutory scheme authorizing and regulating collective bargaining between municipal and other public employers and employees, administered by ERB. Of particular significance in this case, firemen and certain other public safety employees are forbidden from striking, [269]*269ORS 243.736, and issues which are unresolved by bargaining and mediation are subject to compulsory binding arbitration administered by ERB. ORS 243.742.

Roseburg adopted its Ordinance No. 2074 which also purports to regulate its municipal employment relations. It is generally similar to the state’s PECBA, but there are differences both before and after impasse. Rather than set out both PECBA and the ordinance entirely, we quote the summary description of the differences as stated in ERB’s order:

“* * * This ordinance purports to ‘incorporate and follow’ the provisions of the PECBA, ‘with the exception of those areas which are believed to be strictly of local concern for the City of Roseburg.’
“In its pre-impasse collective bargaining provisions, the ordinance does bear a general resemblance to corresponding pre-impasse provisions of the PECBA. In fact, many of the ordinance’s pre-impasse provisions are the same as their PECBA counterparts, e.g.: the definitions of ‘collective bargaining,’ ‘appropriate unit,’ ‘confidential employee,’ ‘supervisory employee,’ ‘labor organization,’ ‘mediation,’ ‘public employee,’ and ‘strike,’ the section ‘Rights of City Employees,’ and the section ‘Certification and Recognition.’ There are, however, some notable differences, pre-impasse, between the ordinance and the PECBA, including a retained management rights section, a provision that provides the City with the discretion ‘to voluntarily confer with City employees in the process of developing policies to effectuate or implement’ retained management rights, a partially different unfair labor practice section, and a section which sets some specific times for the commencement and conclusion of negotiations.
“With the exception of mediation, the post-impasse provisions of the ordinance differ significantly from their PECBA counterparts. The ordinance’s factfinding procedure dictates the use of a three-member Board of Factfinders to select ‘the most reasonable’ of the final offers presented by the parties. In making its ‘final offer’ recommendation, the Board of Factfinders must consider factors which differ from those to be considered by factfinders operating under the Rules of this Board. Although the Board of Factfinders’ recommendation is not binding on the ‘loser,’ the ‘loser’ will be deemed to have accepted the recommendation if it has not formally rejected it within five days after its issuance.
[270]*270“If the recommendation of the Board of Factfinders is rejected, the two (2) ‘final offers’ are submitted to the City residents whose vote is final and binding upon the parties. Firefighters are prohibited from striking. Enforcement of the ordinance is obtained by resort to suits in equity brought in Circuit Court or actions filed in the Municipal Court of the City of Roseburg.”

From the inception of the bargaining process and consistently throughout it, Roseburg insisted that it was bargaining “under” its ordinance rather than under PECBA. The parties did not reach agreement and mediation was unsuccessful. Local 1489 requested initiation of factfinding by ERB under ORS 243.722. Roseburg instead initiated factfinding under its ordinances and requested ERB to defer to the municipal procedures. At that point, Local 1489 initiated this proceeding, complaining that Roseburg’s refusal to bargain in good faith under PECBA was an unfair labor practice.

ERB reasoned that state law was controlling, that Roseburg was subject to its requirements, that the ordinance affected the bargaining process, and that Roseburg’s insistence on bargaining under the ordinance instead of the statute was a refusal to bargain collectively in good faith.

I. JUDICIAL REVIEW

The most substantial difference between PECBA and the ordinance relates to post-impasse procedures: PECBA requires arbitration; the ordinance requires submission of the last offers of each party to the voters of Roseburg. This proceeding was brought before post-impasse procedures were activated. Therefore, the threshold question is whether the post-impasse difference in the state and municipal legislation has yet ripened into a material issue.

Roseburg contended before ERB that the post-impasse difference was not material because the collective bargaining obligations of the city under the pre-impasse procedures of the ordinance and of the statute were essentially similar. ERB rejected that contention. It found that the differences as to both pre- and post-impasse procedures affected Roseburg’s conduct during bargaining.

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Cite This Page — Counsel Stack

Bluebook (online)
639 P.2d 90, 292 Or. 266, 1981 Ore. LEXIS 1209, 111 L.R.R.M. (BNA) 2932, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-roseburg-v-roseburg-city-firefighters-local-no-1489-or-1981.