§ 29.3 Mediation

LibraryADR in Oregon (OSBar) (2019 Ed.)
§ 29.3 MEDIATION

§ 29.3-1 Private-Sector Bargaining Disputes

Mediation of bargaining disputes for the private sector is generally handled by the FMCS. For the private-sector employment covered by the NLRA, federal law requires that parties satisfy certain notice requirements before terminating or modifying a collective-bargaining agreement. 29 USC § 158(d) (NLRA § 8(d)). First, the initiating party must serve written notice on the other party at least 60 days before the agreement expires. 29 USC § 158(d)(1) (NLRA § 8(d)(1)). In addition, the initiating party must notify the FMCS within 30 days "after such notice of the existence of a dispute" and "simultaneously" notify "any State or Territorial agency established to mediate and conciliate disputes within the State or Territory where the dispute occurred." 29 USC § 158(d)(3) (NLRA § 8(d)(3)). In Oregon, the State Conciliation Service is the state agency that must be noticed. See ORS 662.405-662.455.

For disputes involving employees of a "health care institution," the time periods are 90 days and 60 days, respectively. 29 USC § 158(d)(A) (NLRA § 8(d)(A)). In addition, a union must provide 10 days' written notice to the institution and notify the FMCS before engaging in a "strike, picketing, or other concerted refusal to work." 29 USC § 158(g) (NLRA § 8(g)). For initial contracts involving health-care institutions, the union must give 30 days' written notice "of the existence of a dispute" to the FMCS and the state agency. 29 USC § 158(d)(B) (NLRA § 8(d)(B)).

The FMCS has developed Form F-7 (Notice of Bargaining) for giving notice about a bargaining dispute to it and the applicable state agency. The form is available at the FMCS's website to be completed online or in an online fillable format to be printed and mailed. See < www.fmcs.gov/resources/forms-applications/notice-of-bargaining-f-7 >. The FMCS prefers that notice be completed online.

FMCS mediators (formally titled commissioners) will contact both labor parties and management parties to a collective-bargaining agreement before the start of negotiations on receipt of Form F-7. At the request of both parties, a mediator will provide assistance.

There is no cost for using the FMCS in mediating collective-bargaining disputes, whether used to mediate traditional bargaining or to facilitate alternative bargaining processes.

Although notice to the FMCS and the applicable state agency is required, the parties are under no express obligation to agree to mediation provided by either the FMCS or the state service or to engage in any mediation or conciliation efforts as part of their duty to bargain in good faith. However, under the duty to bargain in good faith, a party's actions are subject to a broad review of bargaining-related activities under a "totality-of-conduct" analysis, and refusal to mediate combined with other obstreperous conduct could be evidence of bad faith. See Labor and Employment Law: Private Sector § 11.2-2 (OSB Legal Pubs 2011) (discussing the totality-of-conduct analysis).

A few private employers do not meet the NLRB's jurisdictional requirements and are subject to Oregon's private-sector labor-relations law (ORS chapter 663), which is also administered by the ERB. The rights and obligations of private employers and unions under this state law generally track what is imposed under the NLRA. This includes the obligation of a party intending to terminate or modify a collective-bargaining agreement to give notice to the other party and the State Conciliation Service. ORS 663.165(1).

§ 29.3-2 Mediation in the Oregon Public Sector

Unlike mediation in the private sector (see § 29.3-1)...

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