§20.4 Election of Union Representatives

LibraryLabor and Employment Law: Private Sector (OSBar) (2011 Ed.)
§20.4 ELECTION OF UNION REPRESENTATIVES

The representative designated for the purpose of collective bargaining by a majority of the employees in an appropriate bargaining unit is considered to be the exclusive representative of all employees in that bargaining unit for the purpose of collective bargaining with respect to wages, hours, and terms and conditions of employment. ORS 663.015.

§20.4-1 The Concept of an Appropriate Bargaining Unit

The Oregon Employment Relations Board (ERB) is authorized to determine whether a unit is appropriate for the purpose of collective bargaining. ORS 663.020(1). In considering whether a bargaining unit is appropriate, the ERB must consider factors such as "community of interest (e.g., similarity of duties, skills, benefits, interchange or transfer of employees, promotional ladders, common supervision, etc.), wages, hours and other working conditions of the employees involved[,] the history of collective bargaining and the desires of the employees." OAR 115-060-0045(2). The "extent to which the employees have organized is not controlling." ORS 663.020(2). The unit designated to be appropriate need not be the most appropriate unit. OAR 115-060-0045(2).

Although the ERB's authority in designating bargaining units is broad, it is not without limitation:

(1) Professional and other employees. A unit will not be considered appropriate if it includes both professional employees and other employees unless the majority of the professional employees, as defined in ORS 663.005(7), vote for inclusion in the unit. ORS 663.020(1)(a).

(2) Prior determination. A craft unit may not be declared inappropriate on the ground that a different unit has been established by prior determination "unless a majority of the employees in the proposed craft unit vote against separate representation." ORS 663.020(1)(b).

(3) Employees and guards. A unit may not be declared appropriate if it includes, together with other employees, any person employed as a guard to protect the property interests of the employer or the safety of persons on the employer's premises. ORS 663.020(1)(c).

(4) Excluded workers. A bargaining unit will not be considered appropriate if it includes persons who are excluded from the definition of employee in ORS 663.005(3). OAR 115-060-0045(3).

(5) One-person unit. The principles of collective bargaining presuppose that more than one eligible employee desires to bargain. Therefore, the ERB will not certify a one-person bargaining unit. The ERB has held elections in abeyance, however, until vacant positions are filled. Teamsters Local No. 962 v. Lakeview Creamery, ERB Case No R-14-77 (1978).

(6) Confidential employees. Although "confidentials" are not listed as persons excluded from the definition of employee in ORS 663.005(3), it is appropriate to exclude confidential employees from bargaining units on policy grounds. General Teamsters Local Union No. 324 v. Evergreen-Doe Humane Society, 15 PECBR 746, 752—753, amended, 15 PECBR 757, dismissed, 16 PECBR 175 (1995) (citing federal private sector and state public sector case law supporting exclusion, NLRB v. Hendricks County Rural Elec. Membership Corp., 454 US 170, 102 S Ct 216, 70 L Ed2d 323 (1981); OSEA v. Phoenix-Talent School Dist. #4, 14 PECBR 776, 780—783 (1993)).

To be excluded from a bargaining unit as a confidential employee, an employee must be a labor-relations confidential. The ERB determines (1) whether the employee in question assists in formulating, determining, and effectuating management labor-relations policy and (2) whether the employee necessarily provides assistance with respect to those labor relations duties. Evergreen-Doe Humane Society, 15 PECBR at 753. The following analysis applies in making this determination:

(a) Does the alleged confidential...

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