Time To File Unfair Labor Practice Is Triggered By Implementation Of Change In Working Conditions, Not Notice Of Change

Most state collective bargaining laws have a relatively quick statute of limitations on the filing of an unfair labor practice. A recent Oregon case dealt with the question of whether the statute of limitations is triggered by an employer's notice that it intends to make a change in working conditions, or rather by the implementation of the decision itself.

The case involved Washington County and the Washington County Police Officers Association, which are parties to a collective bargaining agreement covering both enforcement and corrections deputies. The Association filed an unfair labor practice complaint with Oregon's Employment Relations Board alleging that the County unlawfully transferred work traditionally performed by the bargaining unit to employees outside the bargaining unit without first bargaining to completion with the Association. The complaint was filed on April 28, 2008. Under Oregon's 180-day statute of limitations, the complaint would only be timely for any unfair labor practices that occurred on or after November 1, 2007.

The County argued that October 19, 2007 was the critical date in the case. On that date, the County notified the Association that it considered bargaining complete and would implement its plan to reassign control room duties to civilian employees who were not in the Association's bargaining unit. The Association pointed to a date in March 2008, when the County actually began replacing bargaining unit members in the control room.

The Board agreed with the Association on the timeliness issue. As the Board analyzed it, “the unambiguous wording of the statute indicates that the timeline for filing a complaint begins to run on the 'occurrence of an unfair labor practice.' We long ago rejected the position that an unlawful change in working conditions occurs when the employer notifies the union that it intends to make the change. Our reasoning in such cases is that the 'occurrence' is not the announcement, but rather the effective date of the action, because until the announced action takes effect, the employer could change its decision or be persuaded not to take the action.”

On the merits of the case, the Board found that while the assignment of bargaining unit work to non-bargaining unit members was a mandatory subject for collective bargaining, the Association waived its right to bargain about the County's decision. The Board ruled “once an employer notifies the union about a proposed change, the union has the duty both to demand and to pursue negotiations; if it does not, we will hold that it waives its right to bargain.

“Here, the Association made a timely demand to bargain about the County's decision to change the staffing, and the impacts of the decision. The County agreed to bargain. The Association did not, however, diligently pursue bargaining about the decision. Instead, it decided to address the effects of the County's plan by participating in a subcommittee to consider bargaining unit member safety and security concerns. When the subcommittee process failed, the Association participated in one bargaining session. When those negotiations produced no agreement, the Association made no additional attempts to bargain about the County's planned change. We conclude that the Association waived its right to bargain about the County's decision to transfer bargaining unit work.”

Washington County, #UP-15-08 (Or. ERB 2009).

This article appears in the March 2010 issue