Police Union Has Obligation To Discover Potential Unfair Labor Practices

The Oregon State Police Officers Association represents both troopers and a number of support staff working for the Oregon State Police (OSP). In September 2006, members of the Oregon Department of Transportation and OSP employees began implementing a work-sharing program dealing with wireless communications. Under the terms of the OSP/ODOT agreement, its provisions retroactively applied to the work done between September 2006 and January 8, 2007.

Meanwhile, in October 2006, OSP and the Association began negotiations regarding the renewal of their collective bargaining agreement. The first bargaining session was held January 16, 2007. On May 30, 2007, while negotiations between OSP and the Association were ongoing, an OSP wireless group employee and an Association member approached the Association president, Jeff Leighty, regarding the OSP/ODOT agreement and the fact that it included pay discrepancies between OSP and ODOT employees, even though they were doing the same work. Leighty immediately made an oral demand to the State to cease and desist the OSP/ODOT agreement and to bargain. On June 29, 2007, Leighty repeated his demand to bargain, and informed the State that the Association would file an unfair labor practice complaint if OSP did not respond to its demand to bargain by July 25, 2007. On that date, the State told Leighty that OSP would continue the plan without bargaining.

On July 31, 2007, the Association filed an unfair labor practice complaint with the Employment Relations Board against the state and OSP regarding the OSP/ODOT agreement, alleging that the unilateral implementation of the agreement violated the State’s obligation to bargain.

The Oregon Court of Appeals dismissed the case on timeliness grounds, finding that the Association had not filed the complaint within the requisite 180 days. The Court found that it did not matter whether the “clock started ticking” when the OSP/ODOT agreement was entered into or when the Association learned or should have learned of the agreement. In the Court’s judgment:

“In this case, ERB concluded that, because the transfer of work had been implemented by September 2006 and its effects were ‘fully apparent’ at that time, the Association should have discovered those effects in the exercise of reasonable diligence. Given ERB’s finding that the change was fully implemented and the effects were fully apparent, we cannot say that ERB erred in concluding that the Association should have been aware of them upon the exercise of reasonable diligence. The Association does not advance any argument to the contrary.”

Oregon State Police Officers’ Ass’n v. State, 2011 WL 93830 (Or. App. 2011).

This article appears in the March 2011 issue.