§20.7 Employer Unfair Labor Practices

• Library: Labor and Employment Law: Private Sector (OSBar) (2011 Ed.)

§20.7 EMPLOYER UNFAIR LABOR PRACTICES

It is an unfair labor practice (ULP) for an employer:

(1) "To interfere with, restrain, or coerce employees in the exercise of rights guaranteed in ORS 663.110" (ORS 663.120(1));

(2) "To dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it" (ORS 663.120(2));

(3) "To discharge or otherwise discriminate against an employee because the employee has filed charges or given testimony" under ORS 663.005-663.295 (ORS 663.120(3));

(4) "To refuse to bargain collectively with the employees' exclusive representative," (ORS 663.120(4)); or

(5) To discriminate "in regard to hire or tenure of employment or any term or condition of employment" for the purpose of encouraging or discouraging membership in a union (ORS 663.125).

NOTE: Unlike the Oregon Public Employee Collective Bargaining Act (ORS 243.650-243.782), ORS chapter 663 does not include a provision that prohibits violating a contract. Compare ORS 243.672(1)(g) with ORS chapter 663. Consequently, the Employment Relations Board has dismissed ULP charges by an employee that his employer violated his contractual seniority rights as lacking a statutory basis on which to issue a complaint. Cullinan v. Multnomah Kennel Club, ERB Case No PU-3-97 (1997).

§20.7-1 Interference, Restraint, and Coercion

The discipline or discharge of an employee because the employee has engaged in protected union or concerted activity constitutes interference, restraint, and coercion in violation of ORS 663.120(1). The Employment Relations Board (ERB) utilizes the "but for" test enunciated by the Oregon Supreme Court in Vaughn v. Pacific Northwest Bell Tel. Co., 289 Or 73, 92, 611 P2d 281 (1980), in determining whether an employer's action against an employee violates ORS 663.120(1). Vincent v. Wynwood and Wynwood Pub, dba Duke's Pub, ERB Case No UP-2-80 (1981); see Portland Ass'n of Teachers v. Multnomah Sch. Dist. No. 1, 171 Or App 616, 639-640, 16 P3d 1189 (2000).

A complainant may establish a prima facie case by producing evidence "sufficient to establish [a] protected activity and to support an inference that the protected activity played a role in the employer's decision." Langley v. Herb Shepard Rehabilitation Center (Goodwill), 8 PECBR 8393, 8403 (1986). The burden is then on the employer to prove a legitimate nondiscriminatory basis for the challenged activity. If such a reason is shown, the complainant prevails only if it shows that "more likely than not, the discharge would not have occurred 'but for' the Complainants' protected conduct." Langley, 8 PECBR at 8403. See Hotel, Motel, Restaurant Employees and Bartenders Union, Local No. 9 v. R & K Drive Inn, Inc., dba Top Burger Restaurant, L.C. Randall and K. Stansbury, 4 PECBR 2562, 2567 (1980).

Employer knowledge of union activity may be established by applying the "small plant" doctrine. Under this doctrine, knowledge of an employee's protected activity may be imputed to the employer in the absence of the proof of actual knowledge when the size of the employing entity is so small as to make the inference reasonable. National Paper Co., 102 NLRB 1569, 1572-1573 (1953), enforcement denied by 216 F2d 859 (5th Cir 1954). The ERB applied the small-plant doctrine to establish employer knowledge in Hotel, Motel, Restaurant Employees and Bartenders Union, Local No. 9, 4 PECBR at 2570 n 4, but in Luke v. R & K Drive-In, Inc., ERB Case No UP-13-75 (1976), the ERB reached a contrary conclusion.

Before the ERB issues a complaint charging an employer with a violation of ORS 663.120(1), the party alleging interference, restraint, or coercion must establish the following:

(1) The employee engaged in protected activity, for example, rights guaranteed by ORS 663.110;

(2) The employer imposed adverse action on the employee; and

(3) A connection existed between the protected activity and the adverse action. See Portland Ass'n of Teachers, 171 Or App at 624.

The employer charged with the unfair labor practice then has the opportunity to show that it had a legitimate business reason for taking the adverse action. Assuming a legitimate business reason is shown, the charging party has an opportunity to show that the employer's reason was a pretext or cover-up for the real reason—unlawful antiunion animus. In Shultz v. Rogue Ambulance Service, ERB Case No PU-1-93 (1993), and Cavin v. Rogue Ambulance Service, ERB Case No PU-2-93 (1992), the union failed to offer evidence of pretext after the employer proffered evidence of a legitimate business reason for the adverse employment action taken. Therefore, the ERB refused to issue complaints.

§20.7-2 Domination, Interference, Assistance, and Financial Support to Unions

The Employment Relations Board has not yet decided a case alleging a violation of the prohibitions against domination and assistance of unions. See ORS 663.120(2).

Under federal law, two degrees of violations are recognized. When an employer's practices are so extensive that they constitute actual domination of the union, the...