HB 2016 Post Janus, MORE OR LESS?

Diana Moffat

From our Summer 2019 e-newsletter

On June 20, the Governor signed into law HB 2016.

The Freedom Foundation, a staunch support group for cases like Janus and limits on public employer union rights and privileges, called HB 2016 the “Unions’ Latest Love Note to Themselves.” And a love note, it is! The Freedom Foundation claims that “Post-Janus membership losses, not surprisingly, have been massive for Oregon public-sector unions. SEIU 503, for example, has seen 26 percent of its members defect, while OSEA has lost 31 percent.” I cannot confirm, nor deny those claims. But I can tell you that public sector unions are fighting hard to keep employees from being able to opt-out of union membership.

Let’s see what the legislature agreed to, and what is NOT (despite union opinion) contained in this new legislation.

Employee time to conduct union business:

The law requires public employers to:

“grant public employees who are designated representatives reasonable time to engage in the following activities during the public employee’s regularly scheduled work hours without loss of compensation, seniority, leave accrual or any other benefits:

(a) Investigate and process grievances and other workplace-related complaints on behalf of the exclusive representative;

(b) Attend investigatory meetings and due process hearings involving represented employees;

(c) Participate in or prepare for proceedings under ORS 243.650 to 243.782, or that arise from a dispute involving a collective bargaining agreement, including arbitration proceedings, administrative hearings and proceedings before the Employment Relations Board;

(d) Act as a representative of the exclusive representative for employees within the bargaining unit for purposes of collective bargaining;

(e) Attend labor-management meetings held by a committee composed of employers, employees and representatives of the labor organization to discuss employment relations matters;

(f) Provide information regarding a collective bargaining agreement to newly hired employees at employee orientations or at any other meetings that may be arranged for new employees;

(g) Testify in a legal proceeding in which the public employee has been subpoenaed as a witness; and

(h) Perform any other duties agreed upon by a public employer and an exclusive representative in a collective bargaining agreement or any other agreement.”

Well that is certainly a mouthful. What does it mean? It means that your employees, who are union representatives, WILL be given paid time to do union business. That business will include grievance work – all the way from investigation to the hearing; attend and likely to prepare for collective bargaining of your CBA; and, attend new employee orientation.

But, and this a big but, the statute does say that it is “reasonable” time. That term is not defined. The employer should be able to take into consideration things such as operational needs, etc.

Release Time:

The new legislation also allows for what is called “release time.” Release time is defined as: “the period of time when a public employee who is a designated representative takes a leave of absence from the employee’s

regular public employment to conduct labor organization business.” It provides that:

“a public employer and an exclusive representative may negotiate and enter into written agreements whereby:

(a) The public employer shall provide a reasonable term of release time for public employees to serve as designated representatives of the exclusive representative or an affiliated labor organization.

(b) The public employer and the exclusive representative may agree to…”

The statute then goes on to talk about the ins and outs of having an employee away from the work site while on release time, to serve union business.

Despite this part of the statute seeming to be negotiable, it does provide that any current CBA can now be reopened to negotiate this type of release time.

I have a handful of CBAs with this type of provision. In essence, the employee ceases to do their job and now just does union work, whether on site or away at some union training. It can be difficult to temporarily fill their position, and to coordinate the repayment to the employer, required by the union, for wages and benefits.

Union access to employees: The law now provides that a public employer shall provide the union with “reasonable” access to employees within the bargaining unit. This will include the right to meet with new employees, while on paid leave time, “within 30 calendar days from the date of hire for a period of at least 30 minutes but not more than 120 minutes, during new employee orientation or, if the public employer does not conduct new employee orientations, at individual or group meetings.” In addition, for current employees, the union must be given “reasonable access” to those employees to include: “the right to meet with employees during the employees’ regular work hours at the employees’ regular work location to investigate and discuss grievances, workplace-related complaints and other matters relating to employment relations”; and “the right to conduct meetings at the employees’ regular work location before or after the employees’ regular work hours, during meal periods and during any other break periods.”

Union Meetings:
Public employers must now permit the unions to “use the public employer’s facilities or property, whether owned or leased by the employer, for purposes of conducting meetings with the represented employees in the bargaining unit . . . at a time and place set by the exclusive representative, provided that the meetings do not interfere with the employer’s operations.”

Information disclosure:
The public employer “shall” provide to the union, “in an editable digital file format” the following information for each employee in an appropriate bargaining unit: “(A) The employee’s name and date of hire; (B) Contact information including: (i) Cellular, home and work telephone numbers; (ii) Any means of electronic communication, including work and personal electronic mail addresses; and (iii) Home address or personal mailing address; and (C) Employment information, including the employee’s job title, salary and work site location.” This information must be provided within “10 calendar days from the date of hire for newly hired employees” and “every 120 calendar days for employees in the bargaining unit who are not newly hired employees.”

Use of employer email:
The union representative “shall have the right to use the electronic mail systems or other similar communication systems of a public employer to communicate with the employees in the bargaining unit regarding: (a) Collective bargaining, including the administration of collective bargaining agreements; (b) The investigation of grievances or other disputes relating to employment relations; and (c) Matters involving the governance or business of the labor organization.”

Union Dues Deductions:
And now we get to Janus!

The new law provides that your employee “may enter into an agreement with a labor organization” to provide authorization for a public employer to make a deduction to pay dues, fees and any other assessments. It also provides that the public employer “shall deduct the dues, fees and any other deduction authorized by a public employee under this section and remit payment to the designated organization or entity.” The statute also provides that a “public employee’s authorization for a public employer to make a deduction under [this law] shall remain in effect until the public employee revokes the authorization in the manner provided by the terms of the agreement. If the terms of the agreement do not specify the manner in which a public employee may revoke the authorized deduction, a public employee may revoke authorization for the deduction by delivering an original signed, written statement of revocation to the headquarters of the labor organization.”

The unions have a deductions form which only allows employees to “opt-out” during a very small window of time – usually for about a 30-day period, once a year. If the employee signs the union’s authorization form with that limiting opt-out language, they will be stuck to those terms. Such forced union membership is not within the scope and vision of the Janus ruling. Already we have lawsuits being filed in Oregon, and elsewhere, regarding these union tactics. “Three Oregon school employees sued their union in federal court Tuesday, arguing it’s unfair that the union only lets members drop out and stop paying dues during the month of September.”


Alteration of mandatory bargaining?
Under the Public Employees Collective Bargaining Act (PECBA), “employment relations” are a mandatory subject of bargaining for public employers with their unions. This new law, however, changes the definition of “employment relations”: “Employment relations” includes, but is not limited to, matters concerning direct or indirect monetary benefits, hours, vacations, sick leave, labor organization access to and communication with represented employees, grievance procedures and other conditions of employment.” I am not sure that this really changes anything, as we have always bargained about such topics. But this new law definitely erases any doubt!

And, just to further erase any doubts, the new law adds that it is an Unfair Labor Practice for a public employer to “Attempt to influence an employee to resign from or decline to obtain membership in a labor organization” or to “Encourage an employee to revoke an authorization for . . . deductions.”

If you have any questions or concerns as to how to proceed, feel free to give one of us a call or send an email.