Lead Opinion
The decision of the Court of Appeals is reversed. The case is remanded to the Employment Relations Board for further proceedings.
This case requires us to consider whether the City of Lebanon (city) committed an unfair labor practice under Oregon’s Public Employee Collective Bargaining Act (PECBA), ORS 243.650 - 243.782, when one of its council members, Campbell, wrote a letter to a local newspaper disparaging labor unions in general and calling for city employees to decertify their existing union. The Employment Relations Board (ERB or board) concluded that the city had engaged in an unfair labor practice based on Campbell’s conduct. The Court of Appeals reversed, concluding that the city was not liable because Campbell had not acted as a “public employer or its designated representative” within the meaning of PECBA. AFSCME Council 75 v. City of Lebanon,
I. BACKGROUND
The undisputed facts, as summarized by the Court of Appeals, are:
“According to the City of Lebanon Charter of 2004, the city is ‘a municipal corporation’ that includes ‘all territory encompassed by its boundaries * * *.’ The city is also a public employer as defined by ORS 243.650(20). All powers of the city are vested in the city council, which is composed of a mayor and six councilors; the council delegates much of that power to the city administrator (manager), who is the ‘administrative head of the government of the City.’ Specifically, the city administrator (manager) is ‘responsible for the daily operation of the City’s departments and implementation of Council policy.’
“The council is responsible for holding regular meetings, adopting ‘rules for the government of its members and proceedings!,]’ and appointing certain city officers. The council is also responsible for passing ordinances and voting on questions before it, including whether to approve ‘a bond of a City officer or a bond for a license, contract or proposal!.]’ Except as the city charter provides, ‘the concurrence of a majority of the members of the Council present and voting at a Council meeting shall be necessary to decide any question before the Council.’ Further, ‘[n]o action by the council*812 shall have legal effect unless the motion for the action and the vote by which it is disposed of take[] place at proceedings open to the public.’
“Campbell was appointed as a city councilor in 2010 and was a member of the budget committee. As a city councilor, she would 'be asked to vote and ratify any collective bargaining agreement with the Union that [was] negotiated by the City negotiation team.’ However, Campbell was not a member of the city’s labor negotiation team, and, [o]ver the last 10 years, no city councilor [had] been a member of the City’s labor negotiation team.
“At the time of the events giving rise to this case, the city was experiencing a budget crisis, and the city and the union were parties to a collective bargaining agreement that was set to expire. The president of the union, along with the president of another union that represents city employees, co-authored a letter to the city. In that letter, the union presidents stated that the city should consider eliminating the positions of assistant city manager/human resources manager and human resources assistant before cutting essential services or laying off union workers.
“Shortly thereafter, Campbell sent a letter to the Lebanon Express, a local newspaper. The letter was addressed to All Citizens of Lebanon].]’ Campbell began the letter by stating:
“T would like to inform all of you about some elements of my personal background before I get to the basis of my letter. Further I would like to clarify this letter is being written by me as an individual and not a reflection of a majority of the City Council, the City or my employer.’
“Campbell then described her and her family’s involvement with unions, defended the city’s human resources positions, and criticized unions in general. Campbell concluded the letter by stating:
“‘To employees of the City and other organizations imprisoned by the dictatorship of a union as a private citizen I advise you to seek out the Department of Labor website where you can find instructions on how to de-certify your union captors. As an individual and former union member I believe you can put your union dues to better use in your own household budget and in supporting causes that truly express your own values.’
*813 “‘Sincerely/
“‘Margaret A. Campbell’
“‘City Councilor’
“‘Ward II’
“The newspaper published an article that summarized Campbell’s letter. That article noted that the letter could be found on the newspaper’s website and stated that Campbell planned to read the letter at a city council meeting. The parties later stipulated that Campbell did not read the letter at the meeting.”
City of Lebanon,
As a result of Campbell’s conduct, AFSCME Council 75 (union) filed an unfair labor practice complaint against the city, alleging that Campbell’s comments were made in her official capacity as a council member. The parties submitted the case on stipulated facts directly to ERB. The board concluded that the city violated PECBA when Campbell, in her letter, advised city employees “to seek out the Department of Labor website where you can find instructions on how to de-certify your union captors.”
In the Court of Appeals, the city assigned error to ERB’s conclusion that Campbell acted as a public employer or its designated representative under PECBA when she submitted her letter to the newspaper.
“The union raises an interesting question by asserting that we should apply agency principles in this case: whether a public employer can be liable for an unfair labor practice committed by an agent other than its designated representative. However, we need not resolve that question because, even assuming without deciding that it is appropriate to apply agency principles in this context, we conclude that Campbell was not acting as the city’s agent when she wrote and sent her letter.”
Id. at 297 (footnote omitted).
II. ANALYSIS
A. Purposes of PECBA and the NLRA
We begin our analysis by briefly examining the legislature’s purpose in enacting PECBA. This court has observed that, by enacting PECBA, first passed in 1973, “the legislature has provided a comprehensive statutory scheme authorizing and regulating collective bargaining between municipal and other public employers and employees, administered by ERB.” City of Roseburg v. Roseburg City Firefighters,
“* * * PECBA is intended to protect [public employees’] economic welfare during their employment and to provide a means for them to affect certain negotiable working conditions. Another policy served by PECBA is to protect public safety by the substantive device of prohibiting strikes of public safety employees. The substantive goal of that ban is prevention of interruption in the provision of essential government services. The class of persons to be benefited by this policy extends beyond the population of any city. PECBA is expressly premised upon a legislative determination that the people of the state have an interest in public employment relations at both the state and local levels of government.”
Id. at 276.
To accomplish its broad purpose of protecting against interference with labor rights, the NLRA conferred on employees a “triad of rights”: (1) the right to organize; (2) the right to bargain collectively; and (3) the right to engage in strikes, picketing, and other concerted activities. Higgins, The Developing Labor Law at 28. The NLRA
In many respects, PECBA was patterned after the NLRA. See Elvin v. OPEU,
“(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title;
“(2) to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it[.]”
29 USC § 158(a). Likewise, under PECBA, it is an unfair labor practice for “a public employer or its designated representative” to, among other things:
*818 “(a) Interfere with, restrain or coerce employees in or because of the exercise of rights guaranteed in ORS 243.662.
“(b) Dominate, interfere with or assist in the formation, existence or administration of any employee organization.”
ORS 243.672(1).
In addition to their nearly identical provisions relating to unfair labor practices, PECBA and the NLRA both express policies of promoting collective bargaining and protecting employees’ organizational rights. The NLRA, for example, declares that it is the policy of the United States to reduce the causes of industrial strife by encouraging collective bargaining and protecting employees’ exercise of “full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.” 29 USC § 151. Similarly, the 1973 Legislative Assembly declared it to be the policy of Oregon that “[t]he people of this state have a fundamental interest in the development of harmonious and cooperative relationships between government and its employees.” ORS 243.656(1). The Oregon legislature also declared that the purposes of PECBA are to “obligate public employers, public employees and their representatives to enter into collective negotiations with willingness to resolve grievances and disputes relating to employment relations” and to promote improved employer-employee relations “by providing a uniform basis for recognizing the right of public employees to join organizations of their own choice, and to be represented by such organizations in their employment relations with public employers.” ORS 243.656(5).
B. Whether Campbell’s Statements May Be Imputed to the City
Having briefly described the purposes of PECBA and its similarities to the NLRA, we now turn to the question on review: Was Campbell’s conduct that of a “public employer or its designated representative” within the meaning of PECBA when she submitted her letter to the newspaper encouraging city employees to decertify their union?
We review ERB’s order holding the city liable for an unfair labor practice for legal error. ORS 183.482(8). To resolve this interpretive dispute as to whether Campbell acted as a “public employer or its designated representative” under ORS 243.672(1), we examine the text of the statute in context together with any relevant legislative history to determine legislative intent. State v. Gaines,
As noted, ORS 243.672(1) provides, in part:
“(1) It is an unfair labor practice for a public employer or its designated representative to do any of the following:
“(a) Interfere with, restrain or coerce employees in or because of the exercise of rights guaranteed in ORS 243.662.
“(b) Dominate, interfere with or assist in the formation, existence or administration of any employee organization.”
(Emphasis added.)
We begin by analyzing whether Campbell acted as a “public employer” within the meaning of ORS 243.672(1) when she wrote her letter. PECBA defines a “public employer” as
“the State of Oregon, and the following political subdivisions: Cities, counties, community colleges, school districts, special districts, mass transit districts, metropolitan service districts, public service corporations or municipal corporations and public and quasi-public corporations.”
ORS 243.650(20) (emphasis added). Thus, under the plain terms of the statute, the city in this case is a “public employer.”
As a corporate entity, a city can act in either of two ways. It can take official action in accordance with its governing documents, or it can act through its agents. In this case, we need not decide whether the term “public employer” extends to the city’s agents, because another provision of ORS 243.650 specifically prohibits at least some city agents from engaging in unfair labor practices. As noted, ORS 243.672(1) makes it an unfair labor practice for a public employer or its designated representative to engage in specified conduct. Subsection (21) of ORS 243.650 defines the term “public employer representative” as “includ[ing] any individual or individuals specifically designated by the public employer to act in its interests in all matters dealing with employee representation, collective bargaining and related issues.” Thus, if Campbell was acting as the city’s “designated representative” when she wrote her letter, the city may be held liable for her conduct.
2. “Designated representative”
Before determining whether Campbell was a “designated representative” of the city, we first address a somewhat curious discrepancy in the terminology that the legislature used to describe the individuals whom a public employer designates to act in its interests. As noted, ORS 243.672(1) prohibits a “public employer or its designated representative” from engaging in an unfair labor practice. The statute does not define what constitutes a “designated representative” of
Given the textual similarity between a “public employer representative,” which is defined as an individual whom a public employer designates to act in its interests, and a “designated representative [of a public employer],” we find it likely that the legislature intended those terms to be used interchangeably. Indeed, that is a more harmonious reading of the statute than one that would read ORS 243.650(21) out of PECBA. See ORS 174.010 (when construing statutes, court may not omit text that legislature inserted). We therefore construe a “public employer representative” and a “designated representative [of a public employer]” under PECBA to be synonymous. Accordingly, we use those terms interchangeably in this opinion.
We now consider whether Campbell acted as a “designated representative” of the city in writing her letter, such that the city may be held liable for her conduct under ORS 243.672(1). As noted, ORS 243.650(21) provides that a public employer representative “includes any individual or individuals specifically designated by the public employer to act in its interests in all matters dealing with employee representation, collective bargaining and related issues.” (Emphasis added.) The legislature’s use of the term “includes” indicates that a “public employer representative” is not limited to those individuals whom a public employer specifically
Our task in determining whether Campbell is a “public employer representative,” therefore, is twofold. First, we must determine whether the city “specifically designated” her to act in its interests in “all” matters dealing with employee representation. Second, if not, we must determine which other individuals may constitute “public employer representatives” and whether Campbell was such an individual.
With regard to the first inquiry, the record does not show that the city “specifically designated” Campbell “to act in its interests in all matters dealing with employee representation, collective bargaining and related issues.” ORS 243.650(21). Nor does the union offer any evidence or argument to support such a proposition. We therefore conclude that Campbell was not the type of representative whom a public employer “specifically designates” to act in its interests in all labor matters.
Turning to the second inquiry, we must determine which other individual representatives of a public employer the legislature intended the term “public employer representative” to include. The dictionary defines a “representative” as “one that represents another as agent, deputy, substitute, or delegate usu. being invested with the authority of the principal.” Webster’s Third New Int’l Dictionary 1926-27 (unabridged ed 2002). Similarly, it defines the verb “represent” as
“to supply the place, perform the duties, exercise the rights, or receive the share of: take the place of in some respect : fill the place of for some purpose: substitute in some capacity for: act the part of, in the place of, or for (as another person) usu. by legal right.”
Because ORS 243.650(21) does not exhaustively define a “public employer representative,” we look to the statutory context for guidance. One contextual clue is the legislature’s statement of policy. See US National Bank v. Boge,
The statutory context thus indicates that the term “public employer representative” should be construed broadly. Neither the text of ORS 243.650(21) nor other, related provisions of PECBA, however, conclusively identify which individual agents of a public employer are “include [d] ” within the definition of a “public employer representative.” We therefore seek guidance on that point from relevant federal case law that has developed under the NLRA. Specifically, we consider federal cases interpreting the NLRA that were in existence at the time that the legislature enacted PECBA. Those cases, although not binding on this court, provide persuasive authority for this court’s interpretation of PECBA, because, as noted, the legislature largely modeled Oregon’s statute after the federal one. Elvin,
Federal courts interpreting the NLRA have often been confronted with the question of which individual agents’ conduct may be imputed to an employer for purposes of unfair-labor-practice liability. As with a public employer, an employer in the private sector is capable of acting only through its individual officers and agents. See, e.g., Corporations, 18B Am Jur 2d § 1139 at 182 (2015) (“A corporation can act only through the authorized acts of its corporate directors, officers, and other employees and agents.”); 1 Corporations, 8 CJS § 7 at 314 (2007) (“A corporation can only act through natural persons who are in charge of its affairs.”). The NLRA takes that reality into account by defining an “employer” to include the individuals through whom a company acts. As originally enacted, the NLRA defined an “employer” to include “any person acting in the interest of an employer, directly or indirectly.” National Labor Relations Act, ch 372, § 2, 49 Stat 450 (1935). As we will discuss, Congress later amended that definition to include “any person acting as an agent of an employer, directly or indirectly.” 29 USC § 152(2) (emphasis added). Under either version, however, federal courts have determined an employer’s liability for an individual agent’s unfair labor practice by considering the nature of the individual’s position within the company and whether other employees would reasonably
With regard to the conduct of individuals at the highest levels of authority, federal courts generally have assumed, without explicit analysis, that an employer may be held responsible. In particular, federal courts have held that an employer is responsible for the conduct of its executive officers — i.e., officers who have the authority to determine the company’s general business and labor policies. E. H. Schopflocher, Annotation, Unfair Labor Practice, within National Labor Relations Act or Similar State Statute, Predicated upon Statements or Acts by Employees Not Expressly Authorized by Employer,
The more challenging question for federal courts has been whether an employer may be held responsible for the actions of individuals who hold a position of authority that is less than an executive officer but greater than a rank-and-file employee. Such an employee generally occupies
In International Association of Machinists, the Court upheld a determination by the National Labor Relations Board (NLRB) that an employer was responsible for the organizational efforts of several low-level employees, despite the fact that the employer had not expressly authorized or ratified the employees’ actions. Rejecting the notion that strict principles of agency law applied when determining employer responsibility under the NLRA, the Court concluded that an employer could be held responsible for the actions of its “so-called agents” even though those acts “were not expressly authorized or might not be attributable to [the employer] on strict application of the rules of respondeat superior” Id. at 80. The Court explained:
“We are dealing here not with private rights * * * nor with technical concepts pertinent to an employer’s legal responsibility to third persons for acts of his servants, but with a clear legislative policy to free the collective bargaining process from all taint of an employer’s compulsion, domination, or influence. The existence of that interference must be determined by careful scrutiny of all the factors, often subtle, which restrain the employees’ choice and for which the employer may fairly be said to be responsible.”
Id. Ultimately, the Court announced the following rule for determining when an employer “may fairly be said to be responsible” for an agent’s unfair labor practice: “[W]here the employees would have just cause to believe that [the agents] were acting for and on behalf of the management, the Board would be justified in concluding that they did not have the complete and unhampered freedom of choice which the Act contemplates.” Id.
“The question is not one of legal liability of the employer in damages or for penalties on principles of agency or respon-deat superior, but only whether the Act condemns such activities as unfair labor practices so far as the employer may gain from them any advantage in the bargaining process of a kind which the Act proscribes.”
After the Supreme Court decided International Association of Machinists and Heinz, Congress enacted the Labor Management Relations Act of 1947, also known as the Taft-Hartley Act. Labor Management Relation Act of 1647, ch 120, 61 stat 136 (1947). That Act amended various provisions of the NLRA, including the definition of an “employer.” The Taft-Hartley amendments changed the definition to its current text: “any person acting as an agent of an employer, directly or indirectly.” 29 USC § 152(2). Despite the narrowing of the definition of an employer from any “person” acting in the interest of an employer to any person acting as an “agent” of an employer, however, federal courts have repeatedly affirmed the liberal principles of employer responsibility originally announced in International Association of Machinists and Heinz. See, e.g., Ingress-Plastene, Inc. v. NLRB, 430 F2d 542, 545 n 3 (7th Cir 1970) (whether person who committed unfair labor practice was supervisor “is irrelevant so long as she gave the appearance of acting on behalf of management”; citing International Association of Machinists)', Amalgamated Clothing Workers of America, AFL-CIO v. NLRB, 371 F2d 740, 744 (DC Cir 1966) (employer responsibility under NLRA “is not controlled by refinements of the law of agency”); NLRB v. Houston Chronicle Pub. Co., 300 F2d 273, 280 (5th Cir 1962) (because supervisor was in position to give his subordinates cause to believe that he
Thus, even after the Taft-Hartley amendments, federal courts have continued to determine employer responsibility for unauthorized actions of an individual by analyzing whether employees would reasonably believe that the individual was acting for and on behalf of the employer. See, e.g., American Door Co., Inc.,
In applying that “reasonable belief’ standard, federal courts have considered “all factors, often subtle, which
Having summarized the relevant federal case law, we now consider what guidance, if any, that case law provides in determining the limits of a public employer’s liability under PECBA for the unfair labor practices of its “designated representative.” We note, initially, that the two statutes define an employer somewhat differently. That is understandable, given that one statute defines an employer in the public sector and the other defines an employer in the private sector. Despite that difference, however, the acts are otherwise remarkably similar. PECBA and the NLRA are driven by the same policy of preventing employer
For those reasons, we adopt the “reasonable belief’ standard under PECBA for determining which individuals constitute a “public employer representative,” such that a public employer may be held responsible for the unfair labor practices committed by such individuals. Specifically, when employees of a public employer would reasonably believe that a given individual acted on behalf of the public employer in committing an unfair labor practice, that individual is a “public employer representative” under ORS 243.650(21), and the public employer may be held liable for the conduct of that individual under ORS 243.672(1).
In applying the “reasonable belief’ standard, adjudicators should consider “all factors, often subtle, which restrain the employees’ choice and for which the employer may fairly be said to be responsible.” International Association of Machinists,
In adopting the “reasonable belief’ standard, we reject the argument of the city and dissent that the statements of an individual city councilor cannot be imputed to the city. They argue, however, that an action by a city council member without the concurrence of a majority of the council has no legal effect and that, therefore, the city cannot be liable for the unfair labor practices of an individual council member. The dissent argues that the acts of individuals generally do not bind public entities.
Moreover, under the view of the city and dissent, voting members of a public employer would be allowed to violate PECBA with impunity. Indeed, multiple members of a voting body could interfere with protected union activity as long as less than a majority of the body acted. That circumstance would contravene the legislature’s express declaration that “[t]he people of this state have a fundamental interest in the development of harmonious and cooperative relationships between government and its employees.” ORS 243.656(1). It would also be at odds with the legislative recognition that public employees “have the right to form, join
We now apply the rule that we announce today to the facts of this case. The ERB did not address whether Campbell was a “designated representative” of the city within the meaning of ORS 243.672(1), such that the city nevertheless may be held liable for her conduct. We therefore remand to ERB to make that determination in the first instance. ORS 183.482(8). On remand, ERB must determine whether city employees would reasonably believe that Campbell was acting on behalf of the city when she wrote her letter urging city employees to decertify the union. In making that determination, ERB should consider all relevant factors, including, but not limited to, whether Campbell occupied a high-ranking position within the city, whether Campbell
Because we conclude that Campbell may have been a “designated representative” of the city, depending on whether city employees would have reasonably believed that she acted on behalf of the city in urging those employees to decertify the union, we reverse the Court of Appeals decision that Campbell could not be a “designated representative” under PECBA.
The decision of the Court of Appeals is reversed. The case is remanded to the Employment Relations Board for further proceedings.
Notes
Specifically, the board concluded that the city had violated ORS 243.672(l)(a) and (b), which provide:
“It is an unfair labor practice for a public employer or its designated representative to do any of the following:
“(a) Interfere with, restrain or coerce employees in or because of the exercise of rights guaranteed in ORS 243.662.
“(b) Dominate, interfere with or assist in the formation, existence or administration of any employee organization.”
The board relied on its prior decision in OPEU v. Jefferson County, 18 PECBR 310 (1999), in which a county commissioner unlawfully refused to directly bargain with a union because bargaining unit members picketed his personal business. The commissioner told the president of the union that “he wanted to get rid of [the union]” and that he did not want to talk with the union’s staff members. ERB concluded that the commissioner’s statements interfered with the administration and existence of the union:
“Ahern’s comments, directed to OPEU’s local president and almost certain to be relayed to other members of the bargaining unit, strike at the core of the relationship between the employees and OPEU. When one of the three main decision-makers for the County says he wants the employees to get rid of OPEU and not let OPEU staff members participate in bargaining, that directly impacts OPEU by undermining bargaining unit members’ confidence in OPEU as exclusive representative.”
Id. at 318 (footnote omitted).
The city did not assign error to ERB’s conclusions that Campbell’s conduct otherwise amounted to an unfair labor practice or that holding the city liable for her comments did not violate the free speech guarantees of Article I, section 8, of the Oregon Constitution.
The NLRA applies only to private sector employment and expressly excludes public entities from the definition of “employer.” See 29 USC § 152(2) (noting that an “employer” under the NLRA “shall not include the United States or * * * any State or political subdivision thereof”).
The legislative history of PECBA makes little mention of the NLRA. That history indicates, however, that the legislature drew from other states’ public sector bargaining acts, which — in turn — had been modeled after the federal act. See, e.g., Tape Recording, Senate Committee on Labor, HB 2263, May 31, 1973, Tape 19, Side 2 (statement of Jim Redden, chairman of Governor’s Task Force on Collective Bargaining in the Public Sector) (noting that PECBA was based on public bargaining statutes in other states — namely, New York, Hawaii, and California); Marcus R. Widenor, Public Sector Bargaining in Oregon: The Enactment of the PECBA, University of Oregon, LERC Monograph Series No. 8 (1989) (other states’ bargaining laws in existence at time of PECBA’s enactment “drew on the model for labor-management relations outlined for private sector workers in the National Labor Relations Act”).
We do not give deference to ERB’s interpretation of “public employer” under the statute, because such deference is not given when a term is inexact. Blachana, LLC v. Bureau of Labor and Industries,
The dissent argues that there is “no textual connection” between the PECBA and the NLRA that would provide a basis for concluding that the Oregon legislature intended the PECBA to incorporate the federal case law that existed under the NLRA.
The dissent acknowledges that the definition of “public employer representative” leaves open “the possibility that others not specifically designated [in the definition] may also be included” but argues that that definition “reflects an obvious parallel to common-law principles of agency with which we presume the legislature was familiar,” citing State v. Ramos,
That is so despite legislative history indicating an intent for the new definition of employer to incorporate traditional agency principles. See, e.g., NLRB v. International Longshoremen’s and W'arehousemen’s Union Local 10, 283 F2d 558, 563 (9th Cir 1960) (noting that “Senator Taft, the life-force behind the bill as enacted, repeatedly remarked on the floor of the Senate that common law rules of agency were to govern the question of who acted for whom for purposes of determining culpability under the Act”). Indeed, some federal decisions have applied strict principles of agency law when determining employer liability under the NLRA. For the reasons that we explain, however, we find those federal cases that have applied the broader “reasonable belief” standard to be more consistent with the statutory purpose of protecting employees’ labor rights and, therefore, more persuasive.
Relatedly, the dissent argues that NLRA decisions imposing liability on private employers for the acts of executive or management personnel have no application to the Lebanon City Council because employees in the private sector have individual authority to act and city council members do not.
Dissenting Opinion
dissenting.
The majority holds that the City of Lebanon may have committed an unfair labor practice because a single one of its City Council members, Margaret Campbell, wrote a letter to the editor of a local newspaper expressing her personal opinion about labor unions. The majority reaches that conclusion despite the fact that Campbell wrote the letter “as an individual and not a reflection of a majority of the City Council, the City or [her] employer.” The majority ignores the fact that she was not authorized to speak for the city; that she was not designated as the city’s representative in collective bargaining negotiations; and that, in fact, under the terms of the city charter, she had no independent authority whatsoever.
The majority’s decision is wrong. It cannot be reconciled with the terms of the statute that the city is supposed to have violated. Nor can it be squared with settled rules of statutory construction. It is justified, not by reference to what the governing statute actually says, but by the majority’s views about the overriding policies of that statute, informed by an extended analysis of case law construing a federal statute that does not even apply here. Because I cannot join in that decision, I must respectfully dissent.
She is neither. Certainly, Campbell is not a government entity. She is a single member of the seven-member governing body of the City of Lebanon. But in no reasonable sense of the term can it be said that she is the City of Lebanon, any more than it can be said that a single one of the 90 members of the Oregon Legislative Assembly is the State of Oregon. Moreover, no party claims that she is the city’s “designated representative.” That should be the end of the matter.
The majority nevertheless concludes that the City of Lebanon may have committed an unfair labor practice based on the unauthorized act of its individual council member. The majority concludes that, in writing her letter, Campbell acted as the city’s “designated representative.”
The majority arrives at that conclusion by reasoning that, although PECBA does not define the term “designated representative,” it does define a different term that at least comes close — “public employer representative.” And the statute defines that term as merely including one who has been “specifically designated by the public employer to act in its interests in all matters dealing with employee representation” and related matters. ORS 243.650(21). That, says the majority, means that the term could include other things as well. To determine what other things the term could embrace, the majority turns to case law construing the federal National Labor Relations Act (NLRA), which it reads as holding that unfair labor practices may be committed by any person whom an employee “reasonably believes” speaks on behalf of the employer, regardless of whether the employer designated the individual to speak on its behalf or
The majority’s reasoning does not withstand scrutiny.
To begin with, it is at odds with the text of the statute. ORS 243.672(1) plainly provides that the only individual who may commit an unfair labor practice is a public employer’s “designated representative.” Although the majority refers to the ordinary meaning of the term “representative,” it curiously omits any reference to the term “designated.” In fact, it reads the word out of the statute entirely. In the majority’s view, an individual may commit an unfair labor practice if an employee reasonably believes the individual speaks for the employer, regardless of whether the employer designated the individual to act on its behalf. Longstanding principles of statutory construction instruct that, whenever possible, we are to give effect to all of a statute’s terms. See, e.g., State v. Cloutier,
The fact is that it is entirely possible to give effect to all statutory terms in ORS 243.672(1). The term “designated representative” is not defined in the statute. We generally assume that the legislature intended undefined statutory phrases to be given their ordinary meaning. See, e.g., OR-OSHA v. CBI Services, Inc.,
“4 a : to decide upon : nominate, delegate, appoint; esp : to assign officially by executive or military authority <the operating agency last designated by the president> <the*838 tanks had been designated to exploit a breakthrough of the enemy’s defenses —R. D. Gardner> b : to induct in a rank or position <the supreme council is designated as the highest organ of state power> <the duke had been designated as king of a puppet state> c : to choose and set apart (as by public will or in the process of government administration) <a successful designating petition places the name of the candidate on the primary ballot —Bk. of Civic Definitions> ccontrol dams designated for construction <finally Queen Victoria was asked to ~ a site —B. K. Sandwell>
«* * * * *
“syn NAME, NOMINATE, ELECT, APPOINT: DESIGNATE may apply to choosing or detailing a person or group for a certain post by a person or group having power or right to choose <the following deputies were designated by the three ministers to carry on the council’s work —Americana Annual> <the vice-chairman is elected from among the commissioners, and the president designates the chairman ■ — Current Biog.>.”
Webster’s Third New Int’l Dictionary 612 (unabridged ed 2002).
Thus, as enacted by the legislature, ORS 243.672(1) provides that an unfair labor practice may be committed either by a public employer or by a person that has been named, nominated, elected, appointed, or assigned the position of representative of the public employer. By its terms, it covers no others.
To be sure, reading the statute as actually written gives it a narrower scope than the majority appears to desire. It leaves out individuals who have not been designated as representatives of a public employer but who might be perceived to be acting on behalf of a public employer. That may well be the case. But our job is to take a statute as we find it, not to rewrite it to conform with the policies that we suppose the legislature may have had in mind, but did not actually enact into law. Wyers v. American Medical Response Northwest, Inc.,
Even assuming for the sake of argument that we may ignore the reference to a public employer’s “designated
As the majority notes, ORS 243.650(21) provides that the term “public employer representative” includes one who is “specifically designated” to represent the employer. The statute leaves open the possibility that others not specifically designated may also be included. Its phrasing reflects an obvious parallel to common-law principles of agency, with which we presume the legislature was familiar. See, e.g., State v. Ramos,
In this case, common-law principles of apparent authority are well settled. There are essentially two categories of agents — those whose authority is actual and those whose authority is “apparent.” See Taylor v. Ramsay-Gerding Construction Co.,
Under Oregon law, however, the liability of a principal for the acts of one with apparent authority is predicated on a showing that the principal engaged in some affirmative conduct that created the appearance of authority — that is, conduct that caused a third party reasonably to believe that the principal had consented to have
In this case, it is undisputed that the city took no action nor engaged in any conduct that created the appearance that Campbell had authority to speak for it on collective bargaining and related matters. In other words, even allowing for the majority’s substitution of “public employer representative” for the statutory phrase “designated representative,” there is no statutory basis for concluding that Campbell was such a public employer representative in this case.
In reaching its contrary conclusion, the majority dispenses with those general principles of agency law — in particular, the requirement that a principal take some action to clothe an agent with apparent authority — without citing any statutory wording that suggests the legislature intended to do so. Rather, it relies on federal court decisions interpreting the provisions of the NLRA setting out who may commit an unfair labor practice under that federal law. Here, the majority strays far from well-established principles of statutory construction.
Generally, when the Oregon legislature borrows statutory wording from another jurisdiction, we assume that, in the process, the legislature also borrows existing controlling case law interpreting that legislation. Jones v. General Motors Corp.,
Taylor v. Baker,
Here, the majority disregards that settled rule of construction. The Oregon legislature may well have borrowed parts of PECBA from the NLRA: specifically, the provisions that define what constitutes an unfair labor practice. But it did not borrow every provision from the NLRA. See Elvin v. OPEU,
That comes as no surprise. The NLRA is a private sector labor statute and prohibits a private “employer” from engaging in any unfair labor practice. 29 USC § 158(a). As defined by the NLRA, the term “includes any person acting as an agent of an employer, directly or indirectly.” 29 USC § 152(2). It disclaims ordinary agency requirements of express authorization or ratification. 29 USC § 152(13). Moreover, it expressly excludes public employers, such as the federal government, any state government, or any subdivision of state government. 29 USC § 152(2).
The majority nevertheless resorts to federal case law interpreting the NLRA for four reasons. None is availing.
First, the majority observes that, “[i]n many respects, PECBA was patterned after the NLRA,” including parallel statements of policy and definitions of what constitutes an unfair labor practice. AFSCME Council 75 v. City of Lebanon,
Second, the majority observes that this court has looked to federal case law interpreting the NLRA in a number of previous PECBA cases.
Third, in a footnote,
Fourth, in the same footnote the majority offers the alternative argument that, under this court’s opinion in State v. Walker,
Even assuming for the sake of argument that it is appropriate to substitute the phrase “public employer representative” for the statutory term “designated representative” and that it is appropriate to look to federal case law to interpret that substituted phrase, the federal case law does not provide support for the conclusion that the majority draws from it. The majority relies on some broad statements in a number of federal court opinions, which the majority reads as dispensing with general principles of agency law in determining who has committed an unfair labor practice. The majority’s reading of the federal case law, however, is mistaken.
As originally enacted, the NLRA defined an “employer” who could engage in an unfair labor practice to include “any person acting in the interest of an employer, directly or indirectly.” 49 Stat 450 (1935). The question arose whether the law required express authorization or ratification for an employer to be liable for the unfair labor practice of an individual acting in its interest. The United States Supreme Court answered that question in the negative in International Ass’n of Machinists, Tool and Die Makers Lodge No. 35 v. Labor Board,
In response to those decisions, in 1947 Congress enacted amendments to the NLRA as part of what is known as the Taft-Hartley Act. Among other things, the amendments modified the definition of an “employer” to include “any person acting as an agent of an employer, directly or indirectly.” 29 USC § 152(2) (emphasis added). It also, as I have noted earlier, specifically provided that, “[i]n determining whether any person is acting as an ‘agent’ of another person so as to make such other person responsible for his acts, the question of whether the specific acts performed were actually authorized or subsequently ratified shall not be controlling.” 29 USC § 152(13). The latter amendment essentially codified the Supreme Court’s holdings in International Association of Machinists and Heinz. Legislative history of the Taft-Hartley
Since the enactment of the Taft-Hartley Act, the National Labor Relations Board has consistently turned to common-law agency principles in determining whether an employer has engaged in an unfair labor practice based on the actions of one of its employees. In fact, early decisions of the NLRB relied on the Restatement of Agency in expressly holding that apparent authority under the NLRA requires “written or spoken words or any other conduct of the principal” that causes a third person reasonably to believe that the agent has authority to act for that principal. See, e.g., Nevada Tank & Casing Co.,
For example, the majority cites NLRB v. Hart Cotton Mills, 190 F2d 964, 974 (4th Cir 1951), for the proposition that employer responsibility for acts of supervisory employees “is not determined by applying principles of agency or respondeat superior.”
For another example, the majority cites Amalgamated Clothing Workers of America, AFL-CIO v. NLRB, 371 F2d 740, 744 (1966), for the proposition that employer responsibility for violations of the NLRA “is not controlled by the refinements of the law of agency.”
The majority also cites a number of decisions holding that certain executive officers and management personnel may be held to speak for their employers in determining whether the employer committed an unfair labor practice.
For example, the majority cites Morgan Precision Parts v. NLRB, 444 F2d 1210, 1215 (5th Cir 1971), a case involving anti-union statements of the company’s owner. Similarly, the majority relies on Madison Brass Works, Inc. v. NLRB, 381 F2d 854, 857 (7th Cir 1967), and NLRB v. Lightner Pub. Corp. of Illinois, 113 F2d 621, 625 (7th Cir 1940), both of which involved a company’s president. And it relies on NLRB v. Jahn & Ollier Engraving Co., 123 F2d 589, 593 (7th Cir 1941), which involved executive officers of the company, as well as foremen whom the court found “did exercise some authority over employees and were in a strategic position to translate to their subordinates the policies and desires of the management.” Id.
Certainly, Campbell was a member of the City Council. In some cases, depending on the terms of the statute or charter that defines the authority of a member of a governing body, an individual member of a city council may have certain day-to-day management authority. See, e.g., Portland City Code 3.06.010 (management of departments are assigned to individual members of the City Council). And, in such cases, an employee might have good reason to believe that such a council member speaks for the city on labor matters.
But that is not the case here. Under the terms of the Lebanon City Charter, Campbell had no individual authority at all. The only authority she possessed was to vote as a member of the council. Without a majority of the council concurring, her views had no force and effect at all, as a matter of law.
Under the reasoning of the very federal cases on which the majority relies, then, the conclusion should be that no reasonable person could believe that Campbell spoke for the city as to labor matters. The linchpin of those cases— the individual authority of the executive or management personnel — has no application to a multi-member governing body like the Lebanon City Council.
In that regard, it is worth noting that the majority has cited not one federal court or NLRB decision holding a company liable under the NLRA based on the actions of a single member of a multi-member body, such as a board of directors. I submit that there is a reason for that: Because individual members of such boards have no individual authority, there is no basis for an employee to believe that they speak for the company. Thus, even under the majority’s test, the claim against the city in this case fails.
In short, the majority’s opinion is contrary to settled law. It conjures a test not from the text of Oregon law, but
At bottom, the majority’s decision is predicated on its view that the legislation must be read “expansively” to “broadly protect public employees’ rights.”
Balmer, C. J., and Brewer, J., join in this dissenting opinion.
The NLRB’s reliance on common-law agency principles of apparent authority is longstanding and continues down to the present. See, e.g., Pratt (Corrugated Logistics), LLC,
The majority acknowledges that “some” courts so hold, but insists that others apply a broader test that disregards that restriction of common-law agency. The majority is mistaken about that. Nearly every federal circuit court has held that the NLRA incorporates common-law principles of apparent authority. See, e.g., Fleming Companies, Inc. v. NLRB,