Earlier this year, the Oregon legislature passed House Bill 4115, which amends the Public Employees’ Collective Bargaining Act (PECBA) to allow police officers who hold the rank of sergeant to join existing bargaining units or to form their own bargaining units for the first time.

The PECBA gives all public employees the right to form bargaining units for the purposes of representation and collective bargaining, except for certain types of employees that the PECBA specifically excludes. “Supervisory employee” is one of these categories. Supervisory employees are those who have the authority to “to hire, transfer, suspend, lay-off, recall, promote, discharge, assign, reward or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action.” ORS 243.650(23)(a). Historically, sergeants have not had the right to join existing bargaining units or to form their own bargaining units because they meet the definition of “supervisory employee” under the PECBA.

However, House Bill 4115 changes the definition of “supervisory employee.” Under the new definition, police officers who meet the following requirements are no longer “supervisory employees” and are eligible to join existing or form their own bargaining units:

1. Serve in a rank equivalent to or below the rank of sergeant;

2. Are prohibited from striking under ORS 243.736; and

3. Assign, transfer, or direct the work of other employees but do not have the authority to hire, discharge, or impose economic discipline on those employees.

House Bill 4115 also prohibits the Employment Relations Board (ERB), the state agency that administers and enforces the PECBA, from designating a bargaining unit that includes both police sergeants and their subordinates unless the bargaining unit existed prior to House Bill 4115’s effective date. Designating a bargaining unit is the act by which the ERB determines that a group of public employees meets the legal criteria to become a bargaining unit for the purposes of collective bargaining and representation by a labor organization. Under House Bill 4115, if police sergeants petition the ERB to form a bargaining unit, then the ERB cannot add them to existing bargaining units but must allow them to create their own, if they otherwise meet the legal criteria.

House Bill 4115 is not yet law, but there are a few steps that public employers can take to prepare for its impacts:

First, we recommend that public employers assess their staffing levels and job duties in order to determine which employees may become eligible to join or form new bargaining units under House Bill 4115. A single police sergeant cannot form a bargaining unit, but two or more could. If a sergeant or equivalent performs supervisory duties but does not have the authority to hire, discharge, or impose economic discipline upon employees, then that sergeant could be eligible to join a bargaining unit.
 

Second, public employers, and particularly smaller jurisdictions, should review House Bill 4115’s potential overall organizational impact. There are 60 agencies in Oregon with 10 or fewer sworn officers, and sergeants are often the only management team members other than the sheriff or police chief. In these situations, House Bill 4115 may have the unwelcome impact of blurring the important organizational line between management and employees. It may be beneficial for certain jurisdictions to consider actions to maintain that line, such as authorizing sergeants to impose economic discipline on employees.

Third, public employers should consider whether it would be in their interest to allow police sergeants to join existing bargaining units. House Bill 4115 prohibits the ERB from adding police sergeants to existing bargaining units that contain their subordinates, but doesn’t prohibit bargaining units and public employees from mutually agreeing to add police sergeants to those existing bargaining units. Adding police sergeants to existing bargaining units would create fewer overall bargaining units for public employers to deal with. However, adding police sergeants to existing bargaining units could result in conflicts of interest between sergeants and the employees that they supervise. Public employers should weigh the advantages and disadvantages of each situation to determine which is in their best interest.

As always, if you have any questions, please get in touch.