Striking is a drastic, last-ditch effort to get to an agreement on a contract when other methods have failed.
What does the law say about strikes? What is the process to go on strike? Here are ten steps unions need to go through in order to strike:
- Bargaining: back-and-forth, face-to-face negotiations.
- Mediation: assistance from a third party (the Oregon Employment Relations Board in our case) to help the parties resolve outstanding issues. Mediators have no authority to force an agreement or make awards to one side or the other — they are facilitators only.
- Impasse: if no settlement is reached within 15 days of the first mediation session either party may declare impasse
- Final offer: within seven days of the declaration of impasse both parties must submit their final offers and the cost estimates of these final offers to the ERB.
- Publication: the ERB publishes the final offers and costs.
- Voluntary fact-finding: prior to the start of the “cooling-off” period, both parties can agree to petition the ERB to engage in a fact-finding process (this almost never happens)
- Cooling-off period: following publication, there is a 30-day cooling-off period.
- Strike vote: this vote would happen before strike notice is given (no strike could occur without union members voting to strike).
- Strike notice: after the cooling-off period, the union may give the employer a ten-day strike notice.
- Employer implementation of its final offer: at any time following the cooling-off period, the employer may give the union five days’ notice of its intent to implement all or part of its final offer, without agreement from the union.
Depending on how things play out (when impasse is declared, when a strike vote happens, how soon after the cooling-off period the union gives notice), a strike could happen as early as the end of August or as late as September or early October. We are going to dedicate a future article on strike preparedness and what members need to know in order to strike effectively.
Below are excerpts of the strike provisions of Oregon’s collective-bargaining law for public employees. You may read the full document here.
OVERVIEW OF OREGON’S PUBLIC EMPLOYEE COLLECTIVE BARGAINING ACT (PECBA)
The Public Employee Collective Bargaining Act (PECBA), ORS 243.650 – 243.782, establishes a collective bargaining process for Oregon’s public employers and unions representing public employees. The PECBA is administered by the Employment Relations Board (ERB), a state agency. The three members of the Board are appointed by the Governor.
The PECBA contains a number of steps designed to help the parties reach agreement. The public employer and the union representing the public employees are initially required to meet and bargain directly with each other (ORS 243.712(1)). The PECBA requires that the parties participate in good faith negotiations for at least 150 calendar days before either party may unilaterally request the assignment of a mediator.
During this period of direct bargaining, the bargaining teams generally meet in face-to-face negotiation sessions. In the traditional “position/proposal-based” process, the parties usually identify the issues for bargaining and then exchange and discuss proposals in an attempt to reach agreement on those issues. Some parties use a variety of other collaborative processes.
If the parties do not reach agreement in direct bargaining, they move to mediation (ORS 243.712(2)). The State Conciliation Service, a division of ERB, is responsible for providing the mediation services.
Once the request for mediation is made, a mediator is appointed. The parties are notified of the appointment and a mediation session is scheduled as soon as a mediator and the members of both bargaining teams are available. If the first session is unsuccessful, additional mediation sessions may be scheduled. The PECBA mandates that parties remain in mediation for a minimum of 15 calendar days. Typically, one or two sessions will occur during this time. After the 15 days, the parties may continue in mediation or either party can initiate the next step in the process by declaring an impasse in the negotiations.
Local government employers and unions are each charged a fee for collective bargaining mediation services (ORS 240.610). The local public employer and the exclusive representative shall each pay one-half of the amount of the fee to the board.
When a settlement occurs during the mediation process, the terms of the settlement, along with any agreed-upon contract language, are set out in a tentative agreement that is signed by the parties. This tentative agreement is usually subject to ratification by the bargaining unit members, as determined by the union’s bylaws, and the public employer’s council, commission, or board.
Declaration of Impasse, Final Offer, and Cooling Off Period
If no settlement is reached within 15 days of the first mediation session, the parties may either continue in mediation or either party may declare an impasse (ORS 243.712(2)). A party declares an impasse by filing a written notice of declaration of impasse with ERB and submitting a copy of the notice to the other party on the same day the notice is filed with ERB.
Within seven days of the date the declaration of impasse is filed with ERB, both parties are required to submit their final offers and cost summaries of their offer to the mediator. The final offer should address all issues and include all disputed contract proposals. Any proposed contract language must be labeled “Final Offer.”
A party’s cost summary must separately list the economic impact for each item in their final offer for each year proposed. It must also include the total of the costs for all disputed proposals in their final offer and an explanation of how the costs were calculated. A copy of the final offer and costing must also be sent to the other party.
After the mediator receives the final offers, cost summaries and proposed contract language, the mediator makes them public. A copy of these documents may be obtained once they are made public by making a written request to the State Conciliation Service.
A thirty-day “cooling off” period follows the publication of the final offer. The purpose of this time is to allow for further attempts to resolve the dispute prior to the parties exercising their self-help measures.
Voluntary Fact Finding
[T]he PECBA still provides for a voluntary fact finding process (ORS 243.722). Parties may access the voluntary fact finding process by jointly petitioning the ERB to initiate fact finding during the 30-day “cooling off period.” The petition to initiate fact finding must be written and may be made in letter or other format. A 30-day cooling off period begins when the fact finder issues a report. The mutual acceptance by the parties of the fact finder’s report results in a contract. If either party rejects the report, the bargaining process continues.
Strike-Permitted Employees: Strike and Final Offer Implementation
The final step in the collective bargaining process for unions and employees of a strike-permitted unit is the right to strike. The final step for an employer of a strike-permitted employee bargaining unit is the right to implement its final offer. A strike-permitted employee union and employer may also jointly agree to resolve their labor dispute through binding interest arbitration (ORS 243.712(2)(e)).
The employees in a strike-permitted bargaining unit may go on strike after completing the prior steps of the PECBA bargaining process in good faith and giving 10 days notice of their intent to strike (ORS 243.726). The notice must specify the first day of the strike and the reasons for the strike, including the list of unresolved issues. The notice may be sent during the 30-day cooling off period, although a strike cannot occur until after the 30-day period.
The employer of a strike-permitted bargaining unit may implement its final offer after completing the prior steps of the PECBA bargaining process. Under current ERB case law, the employer is required to provide the union reasonable notice of its intent to implement. In that case, the Board said five days was reasonable. An employer may implement all or a portion of its final offer.