Oregon Advisory Opinions October 31, 1967: OAG 67-159 (October 31, 1967)

Oregon Attorney General Opinions

1967.

OAG 67-159.

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The Public Employes' Collective Bargaining Act [ORS 243.710 et seq.] authorizes exclusive representation of employes by the elected bargaining agent. Employes who do not represent themselves at civil service hearings must be represented by an attorney.

You ask the following question:

"Does Article X, Section 4 of the agreement negotiated between Oregon State Hospital and the elected employee representative, OSEA, conflict with Civil Service Rule 96-005 (3)?"

Civil Service Rule 96-005 (3) provides:

"Employees shall have the right to have assistance by representatives of their choice in matters of grievance and appeal."

Article X, § 4, of the agreement in question, provides:

"An aggrieved employee may be represented by the Association, by himself, or by a friend, fellow employee, attorney or other individual, but not by another employee organization or a person speaking for or retained by another employee organization to represent the employee in the particular matter."

ORS 243.740, enacted by the 1963 legislature, provides that public employes have the authority to enter into collective bargaining agreements with labor organizations on matters concerning employment relations. Civil Service Rule 96-005 (3) was promulgated prior to this legislation. Subsequent to the collective bargaining Act of 1963 the legislature, in 1965, enacted ORS 243.780 providing for the promulgation of rules of procedure by civil service in order to provide for an election process to determine the bargaining representative and the appropriate bargaining unit for groups of public employes. Pursuant to this 1965 legislation the Civil Service

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Commission promulgated rules 98-005 through 98-900.

Rule 98-500 provides:

"When a candidate for representation receives a majority of the votes cast, the director shall certify and the appointing authority shall recognize that candidate as the representative for the unit. The certified representative shall serve without discrimination as to membership as representative for all employees in the negotiating unit. Such recognition will be in effect for at least 12 months except that the Civil Service Commission for proper cause may call for a new election."

Rule 98-005 (2) certainly qualifies rule 96-005 (3), where a bargaining representative has been certified, by providing:

"(2) Nothing in these rules shall preclude an individual employee from representing himself in individual personnel matters."

In other words where a bargaining representative has been chosen an employe in the unit represented must either present his grievance personally or appear through the elected bargaining representative in hearings before the Civil Service Commission. By "personally" we mean the employe must appear on his own behalf or through an attorney. As a collateral but pertinent point we question the legality of that portion of Article X, § 4, of the collective bargaining agreement in question, which provides that the aggrieved employe may be represented by a friend, fellow employe or other individual. It is our opinion that an employe must either appear personally on his own behalf or appear through an attorney. And this applies also where a collective bargaining organization represents him. Any appearance in hearings before the Civil Service Commission on behalf of the employe by a person who is not an attorney constitutes the unauthorized practice of law. ORS 9.160. This position has been most recently supported by an opinion in the Circuit Court of Marion County by Judge Val D. Sloper. Department of Employment v. Harwel Enterprises, Inc., No. 63061, September 20, 1967.

In conclusion, with the exception noted in the last paragraph, it is our opinion that the Oregon State Employees Association (hereinafter referred to as OSEA) contract validly provides for exclusive representation of employes in the unit involved and that Civil Service Rule 96-005 (3) has been qualified, not only by the 1963 and 1965 legislation on collective bargaining, but by the commission's own subsequent rule 98-005 (2). We note that your question was the result of an inquiry by another labor organization which apparently sought to represent an employe in the unit represented by OSEA in a grievance matter. We think the other labor organization would agree that to allow it to represent the employe would be tantamount to holding that an exclusive bargaining agent cannot exist in the public service which, of course, is contrary to the basic purpose of collective bargaining.