Lawsuit challenges Constitutionality of Nation’s First Legislative Staff Union

Posted on August 9, 2021

(SALEM, Ore.) — The Freedom Foundation on August 5 filed suit on behalf of several plaintiffs outraged by the unconstitutional effort to make the state of Oregon the first in the nation to unionize its legislative staff.

On June 8, the Oregon Employment Relations Board certified a bargaining unit made up of Oregon legislative assistants, to be represented by the International Brotherhood of Electrical Workers (IBEW) Local 89.

Currently, no other state permits its legislative employees to organize, and the Oregon State Constitution includes language clearly discouraging such an arrangement.

“The idea of a union is fundamentally incompatible with the work of the legislature,” said Jason Dudash, Oregon director of the Freedom Foundation. “Unionizing legislative assistants will compromise the integrity of the legislative branch and erode trust by the people toward their elected lawmakers,” continued Dudash.

“There’s a serious separation of powers issue when unionizing subjects the legislative branch to the Employment Relations Board, an executive branch agency,” said Rebekah Millard, Freedom Foundation litigation attorney. “Unionizing legislative staff upends the concept of three co-equal branches of government as promised in the Oregon Constitution.”

“There’s a reason why no other state — including many where the influence of organized labor is even more pervasive than it is here — has taken this reckless step,” continued Dudash. “It puts the ultimate authority over important operational questions into the hands of an executive agency, which undermines the integrity and independence of the legislative branch. Unions have tried to organize legislative staffers in other states, such as Delaware and California, and they’ve failed for the same reasons.”

In addition to diluting Oregon’s separation of powers by putting legislative employees under the authority of an agency within the executive branch, there’s also the problem that Oregon’s Public Employee Collective Bargaining Act does not define the legislative branch as a “public employer.”

“It’s a stretch, at best, to fit legislative branch employees into the current statutory scheme, yet the ERB ruled that this was the intent of the legislature,” Millard said. “If the legislative branch wants to authorize unionization of its staffers at this level, it can always pass a law to that effect. But allowing an executive branch agency to make the decision is to throw away the privileges and duties of the legislative branch.”

Months prior to the election, on Dec. 29, the Oregon Department of Justice (DOJ) submitted to ERB its written objections on behalf of the Oregon Legislative Assembly to unionizing legislative employees. Those objections asserted that:

  • recognizing the proposed bargaining unit would violate the separation of powers doctrine found in Article III, section 1 of the Oregon Constitution;
  • the Public Employees Collective Bargaining Act (PECBA) does not provide for collective bargaining representation within the Legislative branch;
  • the proposed bargaining unit was improperly defined; and,
  • the number of employees included in the proposed bargaining unit — and the number who signed valid union authorization cards — was questionable.

The IBEW withdrew its petition, but re-filed an amended version shortly thereafter with a different description of the proposed bargaining unit.

But none of the Legislative Assembly’s constitutional objections have yet been resolved.

“The only entity this agreement would benefit is the unions,” Dudash concluded. “And they wield far too much power in this state as it is.”

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