Demand to Bargain over SB 1049
Are you one of the lucky ones?

/in , /by

Diana Moffat

From our Summer 2019 e-newsletter

Since the 11th of June, 2019, when Governor Brown signed SB 1049 into law, numerous public employers have received Demands to Bargain (DTBs) filed by their unions over the impacts anticipated to employee benefits and compensation because of the new law. What should you do?

First, these DTBs are usually filed under ORS 243.698 – known as the midterm bargaining statute for public sector, unionized employees. Under that statute, a union has 14-days, from notice, to file a demand to bargain “anticipated changes” in “employment relations.” “Employment relations” includes, but is not limited to, matters concerning direct or indirect monetary benefits, hours, vacations, sick leave, grievance procedures and other conditions of employment. ORS 243.650 (7). However, it does not include what are known as permissive subjects of bargaining or prohibited subjects of bargaining. Also, “Employment relations” does not include subjects that have an insubstantial or de minimis effect on public employee wages, hours, and other terms and conditions of employment.

If you are in the midst of bargaining a successor Collective Bargaining Agreement (CBA) with one of your unions and they file a DTB over this PERS legislation, it would not go through ORS 243.698, but rather it would go under ORS 243.712, which requires the full 150-days of bargaining, rather than the 90-days expedited process of ORS 243.698.

But let’s just cut to the chase!
Do you have a duty to bargain over the likely financial impacts to your unionized employees because of the passage of SB 1049? The answer to that question is an unknown. But I can tell you a few things:

  1. The Local Government Law Group (LGLG) is hosting a state-wide management meeting for employer labor lawyers from all around the State in the next week to fully discuss the various approaches.
  2. If you receive a DTB from your union, you should acknowledge receipt of the DTB, and immediately send a copy to your management labor representative.
  3. Once received, we will send you a draft response that states that we don’t believe that we have any obligation to bargain over the impacts of a change to the PERs legislation, as that is not anything that the employer has initiated or has any control over.
  4. We will also look at your particular CBA language to be sure that you have not, somehow, promised to provide more in PERs benefits than the law requires.
  5. We will send any needed follow-up to the union to ask them to more specifically state why they think that you have an obligation to bargain

Now, to be sure, there is likely to be a lot of litigation in the near future over this new law. The unions, for the most part, are just trying to make sure that they don’t miss that 14-day DTB deadline under ORS 243.698. But, in the same vein, you should be sure not to miss the fact that you need to respond and determine your game plan.