Oregon Advisory Opinions September 18, 1969: OAG 69-72 (September 18, 1969)

OAG 69-72.

Section 2(5) of Senate Bill 55 (Ch. 671 [1969]

Oregon Laws) hereinafter referred to as "the Act", defines a "public employer" as:

"* * * the state and any of its agencies and institutions, and includes a city, county or other political subdivision that has requested the Public Employe Relations Board under section 4 of this 1969 Act to make its services and facilities available for the purpose of establishing public employe representation."

The definition of "public employer" clearly excludes a local governmental body from the jurisdiction of the Public Employe Relations Board unless such body requests the services of the board for the purposes of establishing public employe representation. Any doubts that might exist as to the interpretation of this provision are quickly dispelled upon examination of the legislative history. The minutes of the hearing on Senate Bill 55 before the Senate Committee on State and Federal Affairs on April 22, 1969, reveals that the bill was designed to provide:

(1) A system for resolving employe disputes at the state level.

(2) A capability to assist local government units in resolving employe disputes at the local level on a voluntary basis .

The Act appears to present local government with three choices in case of a labor dispute:

1. Make no request to the Public Employe Relations Board;

2. Request the Public Employe Relations Board to assist it in settling a dispute pursuant to Section 4(3) of the Act;

3. Request the Public Employe Relations Board to assist it in establishing public employe representation, pursuant to Section 4(1) of the Act.

It is obvious that the Act only allows the local governmental body, not the labor organization involved, to initially request the services of the Public Employe Relations Board. If such a request is made by local government to assist the parties in settling a labor dispute under Section 4(3) of the Act, the jurisdiction of the Public Employe Relations Board is not enlarged to encompass an exercise of its authority under other provisions of the Act. For instance, a request to intervene under Section 4(3) does not subject a local governmental body to findings by the board under Section 6 of the Act that the public employer is not bargaining in good faith. This is because a local governmental body is not a "public employer" under Section 6, unless it has requested the Public Employe Relations Board to establish public employe representation under Section 4(1).

"[E]stablishing public employe representation" as

used in Section 2(5) of the Act, is interpreted by this office to mean holding public hearings and conducting secret ballot elections to determine a bargaining unit and certifying a labor organization as the exclusive bargaining representative. If these services are provided to local government upon request, then it seems clear that the local governmental body then becomes a "public employer" under the Act.

With respect to the authority of the State Conciliation Service, it can be observed that the office of the conciliator existed for a number of years as a separate division of the Bureau of Labor. The conciliation service was transferred to the Public Employe Relations Board by Section 13 of the Act.

Under the Bureau of Labor, the conciliator's jurisdiction extended, as it still does, to mediation of disputes in the private as well as the public sector. Under ORS 662.425 the conciliator has authority to initiate an offer of the mediation services of that office to the parties to a labor dispute.

While the Act places the conciliator within the Public Employe Relations Board, the authority of the conciliator to initiate an offer of mediation services seems in no way to have been diminished. It is therefore con

cluded that the conciliator need not wait until a party to a labor dispute requests the services of that office before making such service available. In any event, the mediation services provided by the conciliator are voluntary and may be declined by either party.