Oregon AFSCME Council 75 v. OJD - Yamhill County

794

295

Oregon AFSCME Council 75 v. OJD - Yamhill County 30417,

June Or2020

App

Argued and submitted March 27, 2019, order set aside June 17, petition for

review denied September 17, 2020 (367 Or 75)

OREGON AFSCME COUNCIL 75,

Respondent,

v.

STATE OF OREGON,

OREGON JUDICIAL DEPARTMENT -

YAMHILL COUNTY,

Petitioner.

Employment Relations Board

RC00317; A167661

469 P3d 812

Petitioner, the Oregon Judicial Department (OJD), petitioned for review of an

order of the Employment Relations Board (ERB) that certified Oregon AFSCME

Council 75 as the exclusive representative of a bargaining unit consisting of

27 nonsupervisory employees working in the Yamhill County Circuit Court

(27 employees). ERB concluded that the 27 employees were sufficiently separate

and apart from the rest of OJD’s employees to be an appropriate bargaining

unit for representation. On review of that order, OJD argues that ERB erred as

a matter of law in ordering certification of a single-court bargaining unit and,

alternatively, that ERB’s order was not supported by substantial evidence or sub-

stantial reason. Held: Although ERB did not err as a matter of law in ordering

certification of a single-court bargaining unit, ERB’s order was not supported by

substantial evidence or substantial reason.

Order set aside.

Leigh A. Salmon, Assistant Attorney General, argued the

cause for petitioner. Also on the brief were Ellen F. Rosenblum,

Attorney General, and Benjamin Gutman, Solicitor General.

Jason M. Weyand argued the cause for respondent. Also

on the brief was Tedesco Law Group.

Before Ortega, Presiding Judge, and Powers, Judge, and

Linder, Senior Judge.

LINDER, S. J.

Order set aside.

Cite as 304 Or App 794 (2020) 795

LINDER, S. J.

Under the Public Employees Collective Bargaining

Act (PECBA), ORS 243.650 to 253.782, public employees

have the right to “form, join and participate in the activities

of labor organizations of their own choosing for the purpose

of representation and collective bargaining with their pub-

lic employer on matters concerning employment relations.”

ORS 243.662. A public employer, however, is not required

to bargain with any labor organization that a group of its

employees selects to represent them. Rather, the employer’s

obligation to bargain with a chosen labor organization arises

only if the organization is “certified by the Employment

Relations Board or recognized by the public employer,” in

which case it is the “exclusive” bargaining representative for

the group of employees. ORS 243.666(1).

In this case, Oregon AFSCME Council 75 (AFSCME)

petitioned the Employment Relations Board (ERB) to cer-

tify it as the exclusive representative of a bargaining unit

consisting of 27 nonsupervisory employees working in the

Yamhill County Circuit Court. With one member dissenting,

ERB ordered the certification, concluding that those employ-

ees were an “appropriate” bargaining unit for representation

separate and apart from the remaining 1,200 or so unrep-

resented employees of the Oregon Judicial Department

(OJD).1 OJD petitions for review of ERB’s order, contending

that ERB erred in its appropriate unit determination. For

the reasons explained below, we agree and set aside ERB’s

order.

I. BACKGROUND

After AFSCME filed its petition seeking certifica-

tion of the proposed bargaining unit, a hearing was held by

an administrative law judge, who issued a proposed order

that drew objections from both parties. After oral argument

on the parties’ cross-objections, ERB issued its final order,

which included extensive factual findings. Some of ERB’s

findings were based on the evidentiary record developed at

1

Although this case involves OJD as a party and raises issues that pertain

to the statewide court system, neither party has questioned the propriety of this

court hearing and resolving AFSCME’s petition for review.

796 Oregon AFSCME Council 75 v. OJD - Yamhill County

the hearing and others were based on statutory provisions

and OJD rules.

On review, neither party challenges ERB’s findings

of fact. We therefore base our description of the historical

facts on ERB’s evidence-based findings, supplemented with

facts in the record consistent with ERB’s findings. Meltebeke

v. Bureau of Labor and Industries, 322 Or 132, 134, 903 P2d

351 (1995), abrogated on other grounds by State v. Hickman,

358 Or 1, 24, 358 P3d 987 (2015) (unchallenged agency find-

ings of fact are binding on judicial review); Wallace v. State

ex rel PERS, 249 Or App 214, 215, 275 P3d 997, rev den, 352

Or 342 (2012) (on review, court draws from unchallenged

agency factual findings, supplemented by the record). The

pertinent statutory scheme and rules, and any relevant leg-

islative history, are appropriate for this court to review and

consider independent of ERB’s “factual findings” describing

that scheme.2 Cf. Dept. of Human Services v. J. R. F., 351 Or

570, 579, 273 P3d 87 (2012) (court has independent obliga-

tion to interpret statutes correctly, which includes consider-

ing relevant context).

A. The Unification of Oregon’s Court System

From statehood and into the early 1980s, Oregon’s

state trial court system (circuit and district courts) was

largely funded and administered at the county level; only

the Supreme Court, initially, and later the Court of Appeals

and Tax Court, were fully state-funded and centrally

administered. Although trial court judges were state offi-

cials and paid by the state, all other trial court staff were

county employees. Their salaries, benefits, work responsibil-

ities, and other terms of their employment were the respon-

sibility of the respective counties in which the state’s trial

courts were located. 1980 Report of the Oregon Commission

on the Judicial Branch at 5-6, 26 (February 1981) (1980

Report).3

2

We do not suggest any error or inaccuracy in ERB’s statutory and rule-

based “findings.” But our own review and discussion touches on aspects of the

statutes and their legislative history not mentioned by ERB.

3

Although we cite the 1980 Report for some of the legislative historical con-

text, aspects of the same history were recounted at the hearing by then-Chief

Justice Balmer and then-State Court Administrator Kingsley Click.

Cite as 304 Or App 794 (2020) 797

That system of locally funded and operated trial

courts changed with the enactment of what at the time was

commonly termed the “Court Reform Act.” 4 Beginning in

1983, the legislature consolidated Oregon’s trial courts, Tax

Court, and appellate courts into a single unified court sys-

tem funded directly by the state and administered centrally

on a statewide basis.5 Trial court employees ceased to be

employees of the individual counties in which they worked

and instead became employees of the state. ORS 8.235.

Each county’s responsibility was primarily limited to main-

taining its respective physical courthouse facility, which

remained county property. ORS 1.185(1).

A host of concerns prompted that legislative change.

Among them was that trial court funding by “36 counties in

36 budgets,” even as supplemented by some state funding,

led to “levels of support [that were] uneven and often unpre-

dictable.” 1980 Report at 5. Also, the trial judges who exer-

cised administrative responsibility at the local level were

often selected by their peers for reasons other than their

“administrative talents.” Id. Regardless of their administra-

tive abilities, those judges had “little control over the county

personnel upon whom they [had to] rely to perform judicial

duties.” Id. And although the Chief Justice had some general

administrative and supervisory authority over the court

system as a whole, in practice that authority was ineffec-

tive. Id. As a result, there was “little administrative cohe-

sion and less administrative accountability in the judicial

branch” than in the other branches of government. Id. The

legislature distilled those and other concerns that led to the

unification of Oregon’s court system into a statutory decla-

ration of purpose:

4

Or Laws 1981, ch 1 and ch 3 (Spec Sess); see Circuit Court v. AFSCME, 295

Or 542, 546 n 2, 669 P2d 314 (1983) (referring to legislation as “Court Reform

Act”); Lent v. ERB, 63 Or App 400, 402 n 1, 664 P2d 1110, rev den, 295 Or 617

(1983) (same).

5

An additional aspect of the proposed court reform was to consolidate the

district and circuit courts into a single circuit court system. Distinguished mem-

bers of the bench and bar had argued for that consolidation since at least the

early 1970s. See generally 1980 Report at 63-64; Kenneth J. O’Connell, We Should

Unify the Trial Courts in Oregon, 51 Or L Rev 641 (1972). The legislature did not

undertake the district court-circuit court consolidation as part of the massive

changes it implemented in 1983 with the Court Reform Act; that further reform

instead came later. Or Laws 1995, ch 658 (effective Jan 1, 1998).

798 Oregon AFSCME Council 75 v. OJD - Yamhill County

“The Legislative Assembly hereby declares that, as a mat-

ter of statewide concern, it is in the best interests of the

people of this state that the judicial branch of state gov-

ernment, including the appellate, tax and circuit courts,

be funded and operated at the state level. The Legislative

Assembly finds that state funding and operation of the

judicial branch can provide for best statewide allocation of

governmental resources according to the actual needs of

the people and of the judicial branch by establishing an

accountable, equitably funded and uniformly administered

system of justice for all the people of this state.”

ORS 1.001.

B. Administrative Structure of the Unified Court System

Central to achieving an accountable, equitably

funded, and uniformly administered justice system was

“the establishment of clear and direct lines of administra-

tive authority and accountability within the judicial branch,

with a strong executive office of Chief Justice.” 1980 Report

at 5. To that end, the legislature designated the Chief

Justice of the Oregon Supreme Court as the “head of the

judicial department” with “administrative authority and

supervision over the courts of this state[.]” ORS 1.002. The

administrative powers and responsibilities that the legisla-

ture conferred on the Chief Justice are wide-ranging and

extensive. For OJD generally, as well as for the individual

state courts, the Chief Justice is charged with, among other

responsibilities: determining all policies and procedures

for budget and fiscal management; setting staffing levels;

assigning or reassigning all court staff; devising all person-

nel rules and policies, including compensation and benefits;

overseeing the acquisition, use and disposition of all prop-

erty used by the courts; providing for court security, emer-

gency preparedness, and the continuation of court services

in emergencies; designing and implementing technological

and other business processes for court operations; and over-

seeing all court services to the public, including prescribing

uniform rules of procedures for civil and criminal proceed-

ings. See ORS 1.002 (enumerating general powers of Chief

Justice); ORS 1.006 (authority over uniform rules of court

procedure); ORS 1.008 (responsibility over personnel, bud-

get, and property management); ORS 1.177 (responsibility

Cite as 304 Or App 794 (2020) 799

for court security, emergency preparedness, and business

continuity planning).

The Chief Justice is aided by the State Court

Administrator, who is appointed by and serves at the plea-

sure of the Chief Justice. ORS 8.110(2). The Chief Justice

may delegate to the State Court Administrator any of the

Chief Justice’s administrative powers. ORS 1.002(9); ORS

8.125(1). The legislature has specified that, subject to the

Chief Justice’s direction, the State Court Administrator’s

responsibilities include, among other aspects of running the

state court system: supervising the personnel plan for non-

judicial officers and employees of the court; budget prepa-

ration and fiscal accounting; property management; con-

tinually surveying administrative methods and business

activities of the state courts; making recommendations to

the Chief Justice based on those surveys; compiling statisti-

cal information and reports on court caseloads, workloads,

performance, management, expenses and revenues; and

establishing and supervising education programs for judges,

other officers, and employees of the state courts pertinent to

the performance of their work. ORS 8.125(2). To provide the

centralized operational and infrastructure services needed

for the state court system, the State Court Administrator

oversees a large staff that is divided into several functional

divisions and programs, such as Budget and Fiscal Services

Division, Enterprise Technology Services Division, Human

Resource Services Division, and an internal Audit Office.

Currently, OJD has over 1,200 employees, the vast

majority of whom work in the circuit courts.6 The staffing

level for each court depends on the volume of work and the

number of judges in that court. Some circuit courts have as

6

Each of Oregon’s 36 counties has a circuit court. Each circuit court, in turn,

is in a judicial district. Most judicial districts have only one circuit court. For

those districts, the circuit court’s jurisdiction, the district’s boundary, and the

county’s boundary are the same. In the most rural areas of Oregon, however,

the judicial districts have more than one circuit court and county in them. As a

result, although there are 36 circuit courts in 36 counties, there are only 27 judi-

cial districts. Each judicial district has one presiding judge and one trial court

administrator. As ERB noted in its opinion, the witnesses at the hearing typi-

cally described trial court administration as though the organizational divisions

are by “circuit court” rather than by judicial district, which is de facto accurate

for 21 of the 27 districts. For ease of reference, ERB, for the most part, followed

the witnesses’ phraseology. We do the same.

800 Oregon AFSCME Council 75 v. OJD - Yamhill County

few as five employees; the largest has over 300 (judges and

staff combined). The internal organizational structure for

each circuit court, however, is the same.

By statute, the circuit courts are organized into judi-

cial districts, each of which is authorized to have a presid-

ing judge. ORS 1.003(1)(b). Presiding judges are appointed

by the Chief Justice for two-year terms, after which they

may be reappointed or replaced.7 ORS 1.003(2). The legis-

lature has specified that presiding judges have authority to

“[a]pportion and regulate the disposition of the judicial busi-

ness” of the court (i.e., control the scheduling and assign-

ment of cases to other judges). ORS 1.171(2)(a). Their author-

ity beyond that is delegated by the Chief Justice, who is to

“permit as much variation and flexibility in the adminis-

tration of the courts of this state as are appropriate to the

most efficient manner of administering each court, consid-

ering the particular needs and circumstances of the court,

and consistent with the sound and efficient administration

of the judicial department of government in this state.”

ORS 1.002(5). By Chief Justice rule, presiding judges are

accountable to the Chief Justice in the exercise of their

administrative authority and are responsible within their

respective jurisdictions for “the equitable administra-

tion” of all applicable rules and personnel policies. Judicial

Department Personnel Rule (JDPR) 1.02(6).

Subject to the Chief Justice’s authority to order

otherwise, each circuit court also has a trial court adminis-

trator (TCA). TCAs are appointed by, and can be removed by,

the presiding judges of the respective circuit courts, subject

to the Chief Justice’s personnel policies for those decisions.

ORS 8.195(1)(a). The statutory duties prescribed for TCAs

relate mostly to the official proceedings of the courts. See,

e.g., ORS 8.225(2) (responsibility for, inter alia, keeping and

affixing the seal of the court, recording court proceedings,

7

The other circuit court judges of each judicial district can exercise a limited

“veto” over the Chief Justice’s appointment through a written resolution, signed

by a majority of the judges, disapproving the Chief Judge’s nominee. The Chief

Justice then appoints another judge, and that appointment is final in districts

with fewer than five judges; in the remaining districts, the appointment can be

vetoed a second time, after which it is final. ORS 1.003(5).

Cite as 304 Or App 794 (2020) 801

maintaining documents, entering orders, and authenticat-

ing records). Under the Chief Justice’s rules, a TCA also has

supervisory authority over all staff, including judicial staff,

for the TCA’s respective court, unless the presiding judge

in writing specifies otherwise. JDPR 1.02(8). By statute, a

court’s presiding judge also may delegate any of the admin-

istrative powers of that position to that court’s TCA. ORS

1.171(4).

C. Centralization and Uniformity

1. Internal court administration

To establish “an accountable, equitably funded and

uniformly administered system of justice,” ORS 1.001, the

Chief Justice and State Court Administrator, from the out-

set of the unified court system, centralized policy author-

ity and oversight of all aspects of court infrastructure and

administration at their level. To that end, they adopted (and

continually update) rules and orders designed to maximize

uniformity and consistency in the internal administration of

the courts. Much of the desired administrative uniformity is

a product of the Judicial Department Personnel Rules that

apply to all OJD employees except judges (as elected offi-

cials) and the State Court Administrator (who serves at the

Chief Justice’s pleasure). The rules, which span nearly 200

pages, begin with a “Forward” explaining that their pur-

pose “is to ensure [that] all employees enjoy the same rights

and terms of conditions of employment.”8 As ERB accurately

described in its order, the JDPRs are

“a comprehensive set of personnel policies and procedures

[that] address matters including classification, compensa-

tion, hiring, trial service, performance standards, griev-

ances, disciplinary actions and appeals, layoffs, assign-

ment of work, leaves (including the types of leaves and

accrual rates), holidays, and personnel records.”

Under the JDPRs, all OJD officers and employees

are subject to a uniform classification and compensation plan

developed by the Human Resources Division of the State

8

The JDPRs were an exhibit at ERB’s hearing and are also online at

https://www.courts.oregon.gov/rules/Other%20Rules/JDPR-01-01-2018.pdf

(accessed June 1, 2020).

802 Oregon AFSCME Council 75 v. OJD - Yamhill County

Court Administrator’s office.9 The uniform position classi-

fications are based on general type and level of job duties,

authorities, and responsibilities. For each position classifica-

tion, the compensation range is the same statewide; it does

not vary based on location or other court-specific consider-

ations. Within a classification, the specific tasks assigned to

a particular position can vary from one court to another, and

those variations are reflected in the “position descriptions”

drafted by each court. The variations usually are a function

of court size, with employees in larger courts typically hav-

ing narrower or more specialized duties and employees in

smaller courts typically having broader or more combined

duties. ERB found, however, that, in general, “employees in

the same type of position perform similar duties in a similar

manner, regardless of which court they are employed in.”

Whether a particular employee is correctly classified, given

the specific tasks and responsibilities that the employee

performs, is determined by the State Court Administrator.10

At the hearing, OJD’s Human Resources Director summed

up OJD’s compensation policy as one to pay employees “who

do similar work, the same amount of money * * * across the

state.”

OJD’s uniform compensation plan ensures not only

equitable pay for the staff, but also “equitable funding” of

the individual courts throughout the state. See ORS 1.001

(statement of legislative purpose). As ERB found, OJD

receives its funding from the legislature as an approved

lump sum based on a comprehensive budget request sub-

mitted by the Chief Justice. In calculating OJD’s budget

request, OJD “accounts for all personnel costs, including

circuit court employees’ compensation.” OJD “can easily cal-

culate the circuit courts’ personnel costs, in part because

90

To ensure the Chief Justice’s broad authority to set compensation and

other terms of employment, the legislature specifically exempts all state court

officers and employees from the State Personnel Relations Law (ORS chapter

240) that applies to state employees generally. ORS 8.170.

10

Employees who believe that they have been misclassified based on the

work assigned to them may pursue a classification review that culminates with

the State Court Administrator. If the State Court Administrator agrees that

an employee is working out of class, the presiding judge and TCA for the court

involved must either promote that employee to the proper classification or remove

the job duties that do not conform to the employee’s classification.

Cite as 304 Or App 794 (2020) 803

payroll is centralized and classification compensation rates

are [the same] statewide.” Funds are then allocated to the

individual circuit courts on essentially a pro rata basis. The

uniformity of compensation across the state courts ensures

that each court, relative to its size, can afford the same level

of staffing and deliver the same level of court services to the

public.

In addition to compensation, ERB identified other

basic terms and conditions of employment that are set

through the JDPRs and apply uniformly to all OJD officers

and employees. For example, all court officers and employ-

ees receive the same employment benefits (e.g., medical,

dental, and insurance) and participate in the same retire-

ment system. The types of leave that they receive (e.g., vaca-

tion, sick, family, and personal time) and the rates of leave

accrual are uniform. All workers’ compensation claims are

handled directly by the Human Resources Division rather

than through the court for whom an employee works. All

disciplinary action is subject either to the State Court

Administrator’s immediate authority or subsequent over-

sight.11 In addition to those uniform policies noted by ERB,

the JDPRs address a wide range of other terms and con-

ditions of employment as well, such as policies on equal

employment opportunity (JDPR 5); recruitment, selection,

and trial service (JDPR 6); performance standards and

feedback (JDPR 7); layoffs (JDPR 11); resignations and job

abandonment (JDPR 12); work weeks and breaks (JDPR 13);

family and personal workplace relationships (JDPR 18); and

political activity (JDPR 21).

2. Uniformity of judicial procedures

A second means of achieving a uniform justice sys-

tem in Oregon has been to standardize the procedures and

11

As ERB found, the only disciplinary action that a presiding judge or TCA

may take without first consulting the State Court Administrator’s office is a

written reprimand. A written reprimand, however, is subject to a grievance pro-

cess by which the employee may challenge that disciplinary action and have it

reviewed by the Human Resources Director or the State Court Administrator.

All other disciplinary actions—such as pay reductions, suspensions, and

dismissals—must be taken in consultation with the Human Resources Division.

For all disciplinary actions, the employee may pursue a formal appeal process

before an independent board of judges, supervisors, and nonsupervisory employ-

ees appointed by the Chief Justice. JDPR 10.02 (appeals board composition).

804 Oregon AFSCME Council 75 v. OJD - Yamhill County

practices for conducting judicial business. In general, all

courts must be open during standard business hours, with

only minor deviation from those hours as approved by the

Chief Justice or State Court Administrator, such as a court’s

exact opening and closing times, whether it remains open

over the lunch hour, or whether it is open for operation of a

night court. Court closures for holidays are uniform. JDPR

17.01-.02 (declaring dates of observed holidays and incorpo-

rating holidays designated in ORS 187.020). The immediate

decision to close a court due to inclement weather is made at

the local circuit court level by the presiding judge, but it must

be made pursuant to and consistently with detailed proto-

cols and criteria set by order of the Chief Justice. The State

Court Administrator, through the Security and Emergency

Preparedness Office (former title; now Marshall’s Office),

provides standardized security training to all OJD judges

and court employees, sets minimum safety requirements

for all of the state’s courts, and sometimes provides fund-

ing or other resources to meet an individual court’s particu-

lar security needs. The Chief Justice can also order special

court closures on a temporary basis for emergencies, which,

as ERB noted, happened when severe budget constraints

resulted in statewide court closures on Fridays for a period

of time.12

State court procedural practices likewise have

become more consistent pursuant to the Chief Justice’s

authority under ORS 1.006 to “prescribe by rule the form of

written process, notices, motions and pleadings” in civil and

criminal proceedings in state courts. The Chief Justice has

exercised that authority by promulgating the Uniform Trial

Court Rules (UTCRs), which, with only a few exceptions,

“apply uniformly to all proceedings and actions in circuit

court[.]” UTCR 1.010. As accurately described by ERB:

“The UTCRs govern the broadest matters in the court

system such as standards for pleadings and documents,

12

More recently, the Chief Justice has had to implement far-reaching mea-

sures statewide in response to the COVID-19 pandemic, postponing all nones-

sential judicial proceedings, limiting public access to courts, reducing staffing

at the courthouses, and taking other steps to reduce the risk of contagion to

the public and court staff. See, e.g., Chief Justice Order No. 20-006 (Amended)

(Mar 27, 2020).

Cite as 304 Or App 794 (2020) 805

decorum in proceedings, case management, and calen-

daring. They also address the proper procedures in small

claims court, complex litigation, contempt proceedings,

juvenile court proceedings, domestic relations proceedings,

criminal cases, civil cases, and trials.”

An even greater level of uniformity in statewide

court “business practices” has been achieved with the

implementation of Oregon “eCourt.” The eCourt system

is an integrated technology system for case management;

public access services, such as ePayment, eFiling, and case

searching; centralized financial management; and docu-

ment management, among other features. The system has

“affected nearly every workflow, every business process,

every staff person, trial court administrator, and every

judge in Oregon’s circuit courts[.]” Oregon Judicial Branch,

2016 Annual Report: Focus on Technology 9 (Oregon Judicial

Department 2017) (Ex. R-21). As ERB found:

“Oregon eCourt has made the business processes, forms,

and data entry practices that are used throughout the var-

ious courts more streamlined and uniform. The eCourt

system has also further integrated the courts by, for exam-

ple, enabling employees to access documents or accept pay-

ments for a case in a different circuit court.”

The eCourt system has thus accomplished tighter statewide

integration of the courts’ work, not just in terms of how that

work is done, but also what is done, so that staff in every

court can immediately determine if, for example, a person

before their court is subject to a restraining or child cus-

tody order or is already on a payment schedule elsewhere in

the state. That enhanced functional integration effectively

permits each circuit court to immediately coordinate their

orders with every other circuit court in a way not previously

possible.

The fact that circuit courts throughout the state

perform substantially the same work, using largely stan-

dardized practices and procedures, is important to the judi-

ciary’s ability to provide “business continuity” despite unex-

pected disruptions or emergencies. A central objective of

unifying Oregon’s state courts was to ensure that all judges

and court employees are “statewide resources,” who are able

806 Oregon AFSCME Council 75 v. OJD - Yamhill County

to perform the work of any court anywhere in the state,

which in turn ensures the equitable operation of all courts

throughout the state. To that end, as already described, the

Chief Justice has the authority to assign or reassign all staff

and judges.13 That authority was used, for example, when

several Clatsop County Circuit Court employees became ill

during a flu outbreak. Tillamook County Circuit Court staff

were brought into Clatsop County Circuit Court to help,

which they did; first, however, the Tillamook staff had to be

trained on various different case practices and procedures

that the Clatsop staff used under the state court’s older

technology system, which permitted considerable court-by-

court customization. With the statewide implementation of

eCourt, which had been recently accomplished at the time of

ERB’s hearing in this case, OJD has moved much closer to

realizing the goal of having all staff and judges be statewide

resources to the court system. ERB specifically found that,

although some “minor variations” among the circuit court’s

business processes and procedures still exist, eCourt in par-

ticular had significantly advanced OJD’s ongoing efforts “to

limit or reduce the variation among the circuit courts’ rules

and practices” and that OJD expected that uniformity to

continue to increase in the future.

D. Some Flexibility at the Circuit Court Level

In limited areas, administrative policies and proce-

dural practices at the circuit courts may permissibly vary. In

general, the Chief Justice tries to give the presiding judges

and TCAs “reasonable flexibility” in ways that will advance

the goal of efficient delivery of judicial services, while

maintaining the uniformity necessary for an “accountable,

13

Beginning with Chief Justice Peterson in the initial years of the unified

court system, each Chief Justice has maintained a standing order making each

appointed or elected judge a pro tem judge for every circuit court in the state. A

judge therefore can, without procedural delay and as needed, immediately assist

another circuit court outside of the judicial district where the judge is elected or

appointed to serve. As then-Chief Justice Balmer described at the hearing, in

Oregon’s most rural counties, the need for cross-circuit court assistance arises

frequently because, for example, a judge in one rural county may have a multi-

day trial or a conflict. In that event, on a pro tem basis, a judge in a nearby

circuit, by video or otherwise, can preside for a case, a motion ruling, a settle-

ment conference, or a plea, and that judge’s staff can handle all the procedures

involved.

Cite as 304 Or App 794 (2020) 807

equitably funded and uniformly administered,” ORS 1.001,

single statewide court system.

In terms of court procedural practices, each court

has Supplementary Local Rules (SLRs) that must be consis-

tent with the UTCRs and are approved by the Chief Justice.

SLRs typically address matters such as the scheduling of

cases (e.g., when ex parte or in-custody hearings are held);

whether the court is open or closed over the lunch hour; and

localized differences in the traditional ways some judges

or counties have handled certain kinds of issues (e.g., par-

enting plans). SLRs also sometimes reflect differences in

the availability (or lack) of local resources that are beyond

OJD’s control, such as outside health care providers, drug

rehabilitation services, mediators, and social services. Over

the years, with increases in standardized business practices

in general and with the implementation of eCourt in par-

ticular, the role for SLRs has declined and predictably will

continue to do so into the future.

In terms of personnel policies, the JDPRs also

accord the circuit court presiding judges and TCAs latitude

in some areas. As ERB described, in some instances the pre-

siding judge or TCA is able, under the JDPRs, to select from

specified options; in other areas, they may have discretion to

exercise judgment:

“For example, each circuit court administration may decide

whether to provide their employees with performance eval-

uations; whether to compensate their employees for over-

time by cash payment or compensatory time; whether to

grant or deny their employees annual salary increases;[14]

and whether to adopt a Flexible Employee Recognition

Plan.[15] Additionally, each circuit court administration has

14

As the dissenting member explained, unless an employee is at the top of

the salary range for a particular classification, an annual salary increase may be

denied only after giving the employee written notice of the reason for the denial,

such as the failure to meet the conduct and performance standards set by the

JDPRs. JDPR 4.03(3)(c)(ii).

15

ERB further explained that a Flexible Employee Recognition Plan “per-

mits a circuit court administration to recognize outstanding employee per-

formance with gift cards or sponsored social events. If a court administration

decides to adopt such a plan, they must choose from a set of plan options provided

by the State Court Administrator, and the plan must be approved by the State

Court Administrator.” To implement such a plan, a circuit court must form a

808 Oregon AFSCME Council 75 v. OJD - Yamhill County

substantial discretion over their employees’ schedules, e.g.,

they decide whether to allow employees to have part-time

or flexible work schedules. Each circuit court administra-

tion also has discretion over various leave issues, includ-

ing the standards or criteria by which leave requests will

be granted or denied; the order in which their employees

may use various types of leave; whether their employees

may use sick leave to care for certain persons who do not

meet the standard definition for qualified family members;

and whether their employees may receive donations of paid

leave.”

(Original footnotes omitted.) Other examples include author-

ity at the circuit court level to reorganize work assignments

among the respective court staff; whether to fill a vacancy

through open competition or through internal OJD-only

announcement; and whether to deal with a major budget

shortfall by laying off employees, leaving vacancies open, or

reducing some employees to part-time status.

Those and all other areas of administrative flexibil-

ity and discretion at the circuit court level are never com-

pletely unconstrained, however. All circuit court adminis-

trative authority must be exercised consistently with the

JDPRs. For some local court decisions, varying degrees of

central oversight are built in. For example, if a presiding

judge and TCA opt to reduce staff due to a budget short-

fall, they must prepare a layoff plan for approval by the

State Court Administrator and must follow the JDPR layoff

rules, which include, among other provisions, layoff order

and notice requirements, as well as employee displacement

(bumping) rights. As another example, in filling vacancies,

the JDPRs specify criteria and procedures for all recruit-

ment methods; for recruitment from outside of OJD, the

rules require close coordination with the Human Resources

and Fiscal Divisions of the State Court Administrator’s

office. And beyond those and other explicit constraints is

the Chief Justice’s plenary authority as the administrative

head of Oregon’s uniform state court system, complete with

committee of local court staff to recommend what awards should be given under

the plan and then to review and approve those awards. The plan must be posted

and each circuit court has the same maximum percentage of its budget to use to

fund the recognition awards.

Cite as 304 Or App 794 (2020) 809

the power to issue all rules and orders appropriate to her

role. ORS 1.002(1)(a). Given that authority, the Chief Justice

effectively can reverse, modify, or supplant any exercise of

circuit court administrative discretion at any time, thus

rendering all such exercises subject to the Chief Justice’s

ultimate control.

Finally, OJD has structured training and informa-

tion exchanges among the staff of the various state courts in

ways that both formally and informally facilitate standard-

ization and uniformity in areas where local prerogatives

remain. As ERB found, OJD has standing committees and

workgroups comprised of volunteer judges, administrators,

and other employees from the various courts who meet to

exchange ideas and make recommendations on court policies

and practices. One example was the Court Re-engineering

and Efficiencies Workgroup (CREW), which for several years

generated suggestions on how to improve efficiency and con-

sistency in circuit court operational practices. Other exam-

ples have included Peer Information Exchanges, Process

Improvement Teams, a classification advisory committee,

an advisory policy committee, and a local forms committee.

Also, the Chief Justice meets at least twice a year,

and sometimes a third time, with the presiding judges as a

group. The TCAs also meet as a group at least two to three

times a year. In those meetings, presiding judges and TCAs

exchange ideas and experiences with their peers on “best

practices” so that circuit courts are all “on the same page”

as much as possible. And, through the Communication,

Education and Court Management Division (former title;

now Office of Policy and Education), OJD provides optional

(and sometimes mandatory, as with eCourt) training pro-

grams for supervisors and employees statewide. Those

include, for example, centrally and regularly held employee

orientations for new court employees from across the state,

which are voluntary but are attended by the vast major-

ity of new employees. Another example is the OJD “Clerk

College,” through which, in a university-like setting over a

three-day period, court staff can take classes on a variety

of subjects, such as processing different kinds of cases or

developing “soft skills” like customer service communication

and writing abilities.

810 Oregon AFSCME Council 75 v. OJD - Yamhill County

E. Yamhill County Circuit Court

The Yamhill County Circuit Court has one presid-

ing judge, three other judges, and a TCA. Excluding the

judges, the TCA, and a staff person charged with supervi-

sion of court operations, Yamhill County Circuit Court has

27 employees. Judicial assistants and courtroom clerks are

jointly supervised by the judges and the TCA; they work on

the second floor of the courthouse. Other employees, includ-

ing cashiers and clerks, generally work on the first floor of

the courthouse and are supervised by the TCA and a court

operations supervisor. Although it is possible for circuit

court employees to seek positions in and transfer to other

courts, Yamhill County Circuit Court employees have not

commonly done so. In the past 12 years, only two or three

employees have transferred between Yamhill and other

state circuit courts.

ERB found that, although the Yamhill court employ-

ees occasionally interact with employees in other courts,

those interactions are not a regular part of their work. They

occur, for example, when employees participate in central-

ized OJD trainings or Peer Information Exchanges. Also,

because the Yamhill County Circuit Court was the pilot

court for eCourt, some of the Yamhill staff went to other

circuit courts to help their staff train as eCourt was imple-

mented statewide. Similarly, some Yamhill staff went

to Benton County Circuit Court for mentoring when the

Yamhill County Circuit Court decided to adopt a calendar-

ing system similar to Benton County’s. For the most part,

however, the Yamhill court employees work only in their

own courthouse and with each other, and have only limited

interactions with the employees of the other circuit courts.

ERB made several specific findings about partic-

ular administrative policy and procedures decisions made

by the Yamhill County Circuit Court Presiding Judge and

TCA. Because of their significance to the issues in this case,

we quote ERB’s findings in that regard:

“55. Employees in the Yamhill County Circuit Court

have been dissatisfied with certain policies and practices

adopted by the trial court administrator or presiding judge.

In some cases, the trial court administrator has denied

Cite as 304 Or App 794 (2020) 811

employees’ leave requests based on unwritten standards,

including, for example, her preference that employees accu-

mulate substantial sick and vacation leave balances before

using leave.

“56. The Yamhill County Circuit Court administration

has the discretion to require part-time employees to switch

to full-time or resign, and has exercised that discretion.

“57. The Yamhill administration has adopted a policy

generally eliminating employees’ ability to work ‘adjusted

work hours,’ also known as ‘flex time.’ Previously, when flex

time was permitted, employees could adjust their regular

schedule for a particular workday or workweek (for exam-

ple, an employee could arrive at work 15 minutes early and

leave work 15 minutes early on a certain day).

“58. The Yamhill County Circuit Court administration

has the discretion to deny employees’ requests for flexi-

ble work schedules, and has exercised that discretion. For

example, they denied an employee’s request for a flexible

schedule (with an earlier start and end time) to accommo-

date her childcare issues. In another case, a judicial assis-

tant asked if she could work on a flexible schedule because

her daughter had been seriously injured and would require

a lot of long-term care. Initially, she was told that she could

keep her judicial assistant position and adopt a flexible

schedule when she returned from her leave of absence.

However, upon her return to work, she was told that was no

longer an option. The administration said she could either

continue working as a judicial assistant without a flexible

schedule, or move to a clerk position with more flexibility.

“59. The Yamhill County Circuit Courthouse does not

have its own parking structure. Employees may use a

nearby public parking garage, but due to safety concerns,

many employees prefer to park on the street instead of the

garage. Recently, however, the presiding judge issued an

order prohibiting courthouse employees from parking on

the streets directly adjacent to the courthouse, in an effort

to make those spots available for members of the public.

“60. On one occasion, a Yamhill County Circuit Court

employee anonymously reported to HR Services that the

Yamhill administration was going to close the courthouse

the day after Thanksgiving and require all of the employ-

ees to take leave. The State Court Administrator inter-

vened, and the courthouse remained open.”

812 Oregon AFSCME Council 75 v. OJD - Yamhill County

F. History of Collective Bargaining

AFSCME has attempted at least three times—30

years, 14 years, and 6 years before ERB’s hearing in this

case—to organize all OJD’s employees into a single state-

wide bargaining unit (a so-called “wall to wall” bargaining

unit). The Service Employees International Union has also

“more than once” made efforts to organize a wall-to-wall

bargaining unit of OJD employees. AFSCME representa-

tives who were involved in efforts to form a wall-to-wall OJD

bargaining unit believed those efforts had failed because

employee concerns and priorities differed from “court to

court, due to regional differences in culture and economic

conditions (such as the cost of living), as well as differences

in the employees’ court specific working conditions, the sizes

of their courts, and their relationships with their court

administrators and judges.”

II. LEGAL PRINCIPLES

As we have described, AFSCME petitioned ERB to

certify a bargaining unit comprised of the 27 nonsupervi-

sory OJD employees working in the Yamhill County Circuit

Court. OJD objected to the certification contending that,

under the applicable criteria, the proposed employee group

was too small a segment of OJD’s workforce to be an “appro-

priate” bargaining unit. ERB concluded otherwise and

ordered the certification, which resulted in OJD’s petition

for review. We begin with a general overview of the legal

standards that apply to ERB’s certification decision, which

provides context for ERB’s decision and the parties’ respec-

tive arguments on review.

A. Controlling Legal Principles

The legislature enacted PECBA with the declared

purpose of “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(6). As already noted, under PECBA, Oregon pub-

lic employees may exercise their right to join a labor orga-

nization of their choice without any action by ERB. But a

labor organization can become the exclusive bargaining

Cite as 304 Or App 794 (2020) 813

representative for a group of employees—one with which

their public employer must bargain—only through ERB cer-

tification or voluntary recognition by the public employer.

ORS 243.666(1). Because OJD has not recognized AFSCME

as the exclusive bargaining representative for the 27 non-

supervisory employees in the Yamhill County Circuit Court,

this case involves ERB’s certification authority.

1. The appropriate unit determination

For ERB to certify a labor organization as the exclu-

sive representative of a group of public employees, ERB must

determine that the group of employees who desire to be repre-

sented by a particular labor organization would comprise an

“appropriate bargaining unit.”16 See ORS 243.650(1) (defin-

ing “appropriate bargaining unit” to include “the unit des-

ignated by [ERB] to be appropriate for the purpose of collec-

tive bargaining”); ORS 243.682 (setting out procedures and

criteria for ERB’s designation of group of employees as an

“appropriate bargaining unit”). By statute, in making that

determination, ERB must “consider such factors as commu-

nity of interest, wages, hours and other working conditions

of the employees involved, the history of collective bargain-

ing, and the desires of the employees.” ORS 243.682(1)(a).

Also by statute, ERB may “determine a unit to be the appro-

priate unit in a particular case even though some other unit

might also be appropriate.” Id. Thus, as ERB has observed,

it is not required to certify “the most appropriate unit, only

an appropriate unit.” E.g., AFSCME v. Douglas County, 26

PECBR 358, 388 (2015) (emphasis in original). That does not

mean, however, that any unit is appropriate. For a unit to be

an appropriate one, ERB must apply the statutory criteria

in a way that “best effectuates the purposes and policies of

PECBA.” Assoc. of Public Employees v. OSSHE and OPEU,

10 PECBR 883, 888 (1988).

16

The desires of the employees to be represented by a petitioning labor

organization are determined either through an election after unit certifica-

tion or by a showing, verified by ERB, that a majority of the employees at the

petition stage have already indicated their support. See generally ORS 243.682

(2) - (4) (procedural requirements to petition for representation election and cer-

tification without election). In this case, AFSCME supported its petition with the

requisite showing of advance majority support and sought certification without

election.

814 Oregon AFSCME Council 75 v. OJD - Yamhill County

Oregon is not unique in using the “appropriate bar-

gaining unit” as the organizing principle for public sector

collective bargaining. That unit model concept originated

under the National Labor Relations Act (NLRA) for the pri-

vate sector and has been adopted by virtually every state

for public sector collective bargaining.17 Traditionally, the

National Labor Relations Board (NLRB) has assessed the

appropriateness of proposed bargaining units under a “com-

munity of interest” doctrine that groups together employees

based on the “mutuality” of their interests in “wages, hours,

and other conditions of employment.”18 For both private and

public sector collective bargaining, unit determination is

generally regarded as being “of fundamental importance,”

because that determination is “both a prerequisite to nego-

tiations and a vital factor in their structure and outcome.”

Lee C. Shaw & R. Theodore Jr. Clark, Determination of

Appropriate Bargaining Units in the Public Sector: Legal

and Practical Problems, 51 Or L Rev 151, 152 (1971). Unit

determination has particular importance in the public

sector:

“In the public sector, the scope and nature of the unit found

to be appropriate will * * * affect the range of subjects which

can be negotiated meaningfully, the role played in the pro-

cess by the separate branches of government, the likeli-

hood of peaceful resolution of disputes, order versus chaos

in bargaining, and ultimately, perhaps, the success of the

whole idea of collective bargaining for public employees.”

Eli Rock, The Appropriate Unit Question in the Public

Service: The Problem of Proliferation, 67 Mich L Rev 1001,

1001 (1969). ERB likewise has characterized the appropri-

ate unit determination under ORS 243.682 as “integral” to

the collective bargaining rights and policies that PECBA

furthers. Assoc. of Public Employees, 10 PECBR at 888.

17

Andria S. Knapp, Anatomy of a Public Sector Bargaining Unit, 35 Case

W Res L Rev 395, 404 (1985). See generally Marcus R. Widenor, Public Sector

Bargaining in Oregon: The Enactment of the PECBA, 8 LERC Monograph Ser 1,

17 (1989) (PECBA modeled on NLRA and was intended, among other goals, to

“rationalize the determination of bargaining units” among public employees).

18

Allied Chem. & Alkali Workers of Am., Local Union No. 1 v. Pittsburgh

Plate Glass Co., Chem. Div., 404 US 157, 172, 92 S Ct 383, 30 L Ed 2d 341 (1971)

(discussing NLRB test (citing 15 NLRB Annual Report 39 (1950))).

Cite as 304 Or App 794 (2020) 815

2. Factors in determining whether a unit is “appropriate”

Although ORS 243.682(1)(a) lists “community of

interest” as a “factor” to be considered, ERB in practice has

treated it, consistently with the traditional NLRB “commu-

nity of interest” doctrine identified above, as a “comprehen-

sive term that encompasses other factors listed” in the stat-

ute (i.e., wages, hours, other working conditions). E.g., Dept.

of Administrative Services v. AFSCME, 15 PECBR 786, 795

(1995). By the statute’s terms, the list of factors for ERB to

consider are not exclusive. Through the directive for ERB to

consider factors “such as” those listed in the statute, ERB

has interpretative authority through rulemaking—both for-

mally promulgated rules and policies adopted through case

adjudication—to consider other factors of like character

and to refine the listed criteria consistently with the stat-

ute’s generally expressed legislative policy. See Springfield

Education Assn. v. School Dist., 290 Or 217, 225-30, 232-33,

621 P2d 547 (1980) (discussing general principles of agency

interpretative authority and analyzing ERB’s author-

ity under PECBA in particular); U of O Chapter, AFT v.

U of O, 92 Or App 614, 619, 759 P2d 1112 (1988) (acknowledg-

ing ERB’s interpretative authority under ORS 243.682(1)).

ERB traditionally has interpreted “community of

interest” to encompass, in addition to wages, hours, and

working conditions, “similarity of duties, skills, benefits,

interchange or transfer of employees, promotional ladders,

common supervision, etc.” Douglas County, 26 PECBR at

388 (citing former ERB rule).19 And, by rule, ERB has pro-

vided that a bargaining unit, if otherwise an appropriate

one under the relevant criteria, “may consist of all of the

19

ERB’s interpretative expansion of the term “community of interest” is con-

sistent with the federal law-derived community of interest factor that PECBA

adopted. See AFSCME Council 75 v. City of Lebanon, 360 Or 809, 817, 825, 388

P3d 1028 (2017) (PECBA is patterned after the NLRA in many respects; fed-

eral cases interpreting NLRA can provide guidance in interpreting parallel

provisions of PECBA). Under federal law, in addition to wages, “community of

interest” typically encompasses considerations such as “similarity of duties,

skills, working conditions, and benefits; the employer’s organizational structure

including supervision; the distinctiveness of the functions performed; and the

extent to which work processes are integrated.” Shaw & Clark, Determination of

Appropriate Bargaining Units in the Public Sector: Legal and Practical Problems,

51 Or L Rev at 164 (citing representative cases; footnote omitted).

816 Oregon AFSCME Council 75 v. OJD - Yamhill County

employees of the employer, or any department, division,

section or area, or any part or combination thereof[.]” OAR

115-025-0050(1).

Through case adjudication, ERB has identified other

relevant policy-based factors as well. Particularly “promi-

nent” among them is ERB’s well-established policy of non-

fragmentation of public workplaces. Oregon Workers Union

v. Dept. of Transportation and SEIU, 21 PECBR 873, 883

(2007) (internal quotes and citations omitted). As ERB has

explained, fragmentation is “inimical to stable labor rela-

tions under PECBA” and harms both the public employees’

and employers’ interests alike. Assoc. of Public Employees,

10 PECBR at 889. In terms of the employees’ interests:

“The creation of multiple splinter units of a public work force

waters down the bargaining power of affected employees to

the point where bargaining becomes an exercise in futil-

ity. The multiple small groups can be played one against

the other in a whip-saw fashion to make a charade of the

bargaining process. In the case of multiple small bargain-

ing units of strike-permitted employees, little incentive

exists to resolve differences under the bargaining proce-

dures established by the PECBA, as the threat of strike by

such small groups would be of little consequence to public

employers. Thus, fragmentation into multiple units serves

to destroy rather than preserve parity of bargaining power

which [the PECBA] seeks to establish.”

Id. In terms of employers’ interests, avoiding fragmenta-

tion “promotes workplace stability and prevents the undue

burden [that] would fall on public employers if they had to

engage in bargaining sessions for the many splinter groups

on a round-robin basis.” Oregon Workers Union, 21 PECBR

at 883 (internal quotes and citation omitted).20 For the pub-

lic generally, because more bargaining units increase the

potential for labor disputes that can result in work stop-

pages, avoiding fragmentation serves the PECBA goal of

20

“Undue burden” on the public employer includes not only the time and

resources needed to bargain with (and later administer the multiple contracts

with) a number of different bargaining units, but also the potential for the

employer to be “whipsawed” as a result of different labor organizations competing

for higher and better contract settlement packages. See, e.g., Div. of State Lands

Employees Assoc. v. Div. of State Lands, 7 PECBR 6118, 6129 (1983) (discussing

nonfragmentation policy).

Cite as 304 Or App 794 (2020) 817

minimizing impairment or interruption of necessary public

services. Id.

As a well-established corollary to its nonfragmenta-

tion policy, ERB also has a policy-based preference for certi-

fying the “largest possible appropriate unit,” which a “wall-

to-wall” bargaining unit carries out to the “fullest extent.”

Welches Education Assn. v. Welches School Dist., 12 PECBR

304, 311, 311 n 7 (1990), aff’d, 116 Or App 564 , 842 P2d 437

(1992). That preference rests on the pragmatic recognition

that “[l]arger units tend to better equalize bargaining power”

and most fully advance PECBA’s objectives of efficient bar-

gaining, stable labor relations, and uninterrupted public

services. Oregon Workers Union, 21 PECBR at 883 (empha-

sis added). ERB’s nonfragmentation and largest-possible-

appropriate-unit policies are thus grounded in the same

statutory goals and purposes. U of O, 92 Or App at 618.21

3. ERB’s adjudicative role and appellate court review

For many bargaining unit determinations, the deci-

sion whether to certify a particular proposed unit requires

ERB, after considering the relevant criteria, to “balance

competing policies of the PECBA: e.g., the promotion of

labor relations stability and the equalization of bargaining

power versus the right of employees to choose an exclusive

21

The two policies, although complementary, are not the same. See Oregon

Workers Union, 21 PECBR at 883 n 5, 883-84 (declining to consider “wall-to-wall”

preference while still considering nonfragmentation policy). ERB’s policy favor-

ing a wall-to-wall (or other largest appropriate) unit is a preference to certify the

“most” appropriate unit possible. See, e.g., Oregon Nurses Assn. v. Or. State Bd.

Of Higher Educ., 8 PECBR 6716, 6716 (1984) (order on reconsideration) (describ-

ing ERB’s goal on case-by-case basis to move state’s historically highly frag-

mented workforce into “most” appropriate—i.e., largest possible—bargaining

unit or units). It reflects ERB’s permissible choice to require more than the leg-

islative minimum for the appropriate unit determination and thus to maximize

the purposes that PECBA serves. See ORS 243.682(1)(a) (ERB may determine

unit to be appropriate “even though some other unit might also be appropriate”).

Fragmentation, on the other hand, compromises, and at some point defeats, the

PECBA policies that unit determination serves. See Assoc. of Public Employees,

10 PECBR at 888-89 (discussing various ways that undue fragmentation frus-

trates PECBA’s goals). Fragmentation is a factor that weighs against finding a

proposed unit to be “an appropriate” one, not just a factor that makes the pro-

posed unit less appropriate than some other. See, e.g., IBEW v. Eugene Water &

Electric Board, 23 PECBR 739, 765 (2010) (separate bargaining unit of only nine

of about 350 unrepresented employees would fragment workforce, which disfa-

vors certification).

818 Oregon AFSCME Council 75 v. OJD - Yamhill County

representative.” OPEU v. Corrections Dept. and Exec. Dept.

and AFSCME, 12 PECBR 876, 889-90 n 17 (1991). Like

other administrative bodies, ERB “possesses the collective

expertise of its members” along with the expertise devel-

oped “by virtue of its administrative function”; it is expected

to use its expertise in evaluating and understanding the

evidence in the cases that come before it. Rolfe v. Psychiatric

Security Review Board, 53 Or App 941, 948, 951, 633 P2d

846, rev den, 292 Or 334 (1981) (discussing the Psychiatric

Security Review Board’s expertise and adjudicative role);

see ORS 240.060(1) (identifying background, experience,

and interest required for governor’s selection of ERB mem-

bers). Thus, ERB’s adjudicative role is typical of administra-

tive decision-making in general: It blends factfinding with

subject-matter expertise.

But, as is also true of other agencies, ERB’s orders

are subject to judicial review. City of Hermiston v. ERB, 280

Or 291, 294, 570 P2d 663 (1977). The standard of our review

is the same as for other administrative bodies. This court

does not weigh the evidence anew or otherwise judicially

interfere with how ERB evaluates, weighs, and balances

competing criteria to reach a decision. U of O, 92 Or App

at 620 (ERB weighs factors bearing on unit determination

“free of judicial intervention”); OSEA v. Deschutes County,

40 Or App 371, 376, 595 P2d 501 (1979) (weight to be given

various criteria in a given case is for ERB, not reviewing

court); see ORS 183.482(7) (reviewing court shall not substi-

tute its judgment for that of agency on any issue of fact). We

do, however, review ERB’s decisions for substantial evidence

and substantial reasoning. Deschutes County, 40 Or App at

376. And the nature of that review is the same as for other

administrative bodies:

“Substantial evidence to support a finding of fact is evi-

dence that, viewing the record as a whole, would permit a

reasonable person to make that finding. ORS 183.482(8)(c);

Armstrong v. Asten-Hill Co., 90 Or App 200, 206, 752 P2d

312 (1988). In reviewing for substantial reason, however,

we go one step further: We examine not only the evidence

that supports ERB’s findings but also the reasoning that

leads ERB from the facts that it has found to the conclu-

sions that it draws from those facts. See Drew v. PSRB, 322

Or 491, 500, 909 P2d 1211 (1996). Specifically, we review

Cite as 304 Or App 794 (2020) 819

ERB’s reasoning for whether ERB correctly interpreted

and applied legal principles in the individual case before it,

and whether it did so consistently with other similar cases

rather than arbitrarily or ad hoc. Id.”

Portland Assn. of Teachers v. Mult. Sch. Dist. No. 1, 171 Or

App 616, 627, 16 P3d 1189 (2000).

III. ERB’S DECISION

As earlier noted, ERB issued a split decision in this

case, with two members joining in the order certifying the

proposed unit and one member authoring a dissent. In its

order, the majority (ERB) first set out its factual findings on

which our description of historical facts is based and then

analyzed whether the proposed unit is appropriate under the

basic legal principles that we have outlined. ERB began with

the “community of interest” factor under ORS 243.682(1)(a),

which encompasses the statutory factors of wages, hours,

and other terms of employment, as well as similarity of

duties, skills, benefits, interchange or transfer of employ-

ees, promotional ladders, and common supervision. As ERB

explained, when, as here, the proposed unit excludes other

employees of the same employer, the community of interest

factor subsumes two questions: (1) whether the employees

in the proposed unit have a “shared” community of interest

with each other; and (2) whether their shared community

of interest is sufficiently “distinct” from the interests of the

excluded employees to warrant the proposed separate bar-

gaining unit. E.g., IBEW v. Eugene Water & Electric Board,

23 PECBR 739, 765 (2010) (assessing whether shared inter-

ests of employees in proposed unit were “substantially differ-

ent” from, and therefore distinct from, interests of employ-

ees excluded from unit); AFSCME v. Washington County, 20

PECBR 745, 755-56 (2004) (similar).

In this case, there was no dispute that the 27

employees in the proposed unit share a community of inter-

est. ERB therefore focused on the extent to which their

shared interests are “sufficiently distinct so that those

employees alone constitute an appropriate bargaining unit.”

ERB acknowledged that all OJD employees are supervised

at the highest levels by the Chief Justice and the State Court

Administrator and are subject to the same personnel rules

820 Oregon AFSCME Council 75 v. OJD - Yamhill County

and the same classification, compensation, and benefits

plans. ERB likewise acknowledged that all OJD employees

working in courthouses throughout the state have similar

job duties, work hours, and workplaces. More important in

ERB’s view, however, was that the Yamhill court employ-

ees work in relative physical and social isolation from other

state court employees and are subject to “day-to-day work-

ing conditions” that their presiding judge and TCA have

discretion to set, such as policies for use of accrued leave

time, adjustments to work hours, and limitations on flex and

part-time schedules. Comparatively, ERB concluded, “the

Yamhill employees’ community of interest is significantly

stronger than, and distinct from, their community of inter-

est with other Department employees.”

ERB then turned to the two other pertinent statu-

tory factors. AFSCME’s petition included a showing that a

majority of the Yamhill employees supported the proposed

bargaining unit, which satisfied the “desires of employees”

factor. Next, ERB considered the “history of collective bar-

gaining” for the OJD workforce. ERB inferred from that his-

tory that the past unsuccessful organizing efforts (30 years,

14 years, and 6 years before this petition) reflected the exis-

tence of current impediments to organizing a wall-to-wall

bargaining unit for all representable OJD employees.

As a final prong of its analysis, ERB considered in

tandem its preference for the largest possible bargaining

unit and its corollary policy of avoiding undue fragmenta-

tion. ERB agreed that a wall-to-wall unit would be “much

more preferable, especially in light of [OJD’s] efforts to

increase uniformity in court operations and thereby improve

the court’s efficiency and accessibility.” Citing past decisions,

however, ERB emphasized that its preference for the largest

possible bargaining unit should not be automatically applied

in a way that would eliminate consideration of the statutory

factors and unreasonably take precedence over the repre-

sentation rights of employees.22 ERB agreed with OJD that

22

See, e.g., Douglas County, 26 PECBR at 391 (preference should not be

“blindly applied” but should be weighed along with statutory factors); IUOE v.

Deschutes County Public Works, 10 PECBR 906, 919 (1988) (nonstatutory policies

should not be applied “automatically” in a way that frustrates employee desires

for representation without furthering other purposes underlying PECBA).

Cite as 304 Or App 794 (2020) 821

undue fragmentation would result if OJD’s workforce were

to be organized on a judicial “district-by-district” approach

so that OJD potentially might have to bargain with as many

as 27 different bargaining units. ERB disagreed, however,

that fragmentation would be “the necessary result of finding

the petitioned-for unit appropriate,” and gave several rea-

sons for its disagreement, which we later discuss in detail.

ERB concluded:

“After weighing all of the unit determination factors,

including our preference for larger units, we ultimately

conclude that the proposed unit is an appropriate one. The

petitioned-for employees have a strong and sufficiently dis-

tinct community of interest, and they share certain local-

ized working conditions. We also give more weight to their

desire to be represented, in light of past attempts to orga-

nize a wall-to-wall unit.”

In a detailed dissent, the dissenting member

explained her disagreement with “four aspects of the major-

ity opinion.” First, and “[m]ost fundamentally,” the dissent-

ing member would have given much greater weight to ERB’s

preference for the largest possible appropriate bargaining

unit. The dissenting member extensively discussed and doc-

umented the history of the preference, which is rooted in

what ERB has characterized as the “unique history” of state

employee organizing and bargaining, including the frag-

mentation that existed before and in the early years after

PECBA’s enactment. See Div. of State Lands Employees

Assoc. v. Div. of State Lands, 7 PECBR 6118, 6122, 6129

(1983) (describing history).23 Given the “significance [of the

preference] in the development of orderly labor relations in

23

The problem of fragmentation, although having a history “unique” to state

(as opposed to city and county) employee organizing and bargaining in Oregon, is

not a problem unique to Oregon. Fragmentation has been endemic to public sec-

tor collective bargaining throughout the nation; many jurisdictions, either legis-

latively or administratively, have created wall-to-wall or other large unit prefer-

ences in response. See generally Knapp, Anatomy of a Public Sector Bargaining

Unit, 35 Case W Res L Rev at 397-404 (discussing fragmentation in public sec-

tor collective bargaining and legislative and administrative solutions); Shaw

& Clark, Determination of Appropriate Bargaining Units in the Public Sector:

Legal and Practical Problems, 51 Or L Rev at 154-61, 163-64 (same); Rock, The

Appropriate Unit Question in the Public Service: The Problem of Proliferation, 67

Mich L Rev at 1001 (discussing general problem of fragmentation in public sector

collective bargaining).

822 Oregon AFSCME Council 75 v. OJD - Yamhill County

State governance,” the dissenting member would have given

the preference particular weight in the context of this “oper-

ationally integrated State employer” that provides a “single

statewide service” of a uniform court system, with employ-

ees who “perform essentially the same duties using essen-

tially the same skills” throughout the state.

Relatedly, the dissenting member disagreed with

the majority’s assessment of the risk of future fragmenta-

tion. In her view, the majority’s willingness to certify such

a small bargaining unit of OJD’s overall workforce did not

provide the level of confidence that ERB has required in

other cases to ensure that potential future bargaining units

would be “relatively limited.”24

Next, at some length, the dissenting member set

out her reasons for disagreeing with the majority’s ulti-

mate finding that the employees in the proposed unit have

a strong and sufficiently distinct community of interest to

constitute an appropriate separate bargaining unit. She

went through each of the Yamhill court-specific personnel

policies identified by the majority (e.g., flex time, use of leave,

part-time employment) and explained why she disagreed

that they amounted to community of interest that is both

stronger than and distinct from the interests of other OJD

employees.

Finally, the dissenting member disagreed with the

majority’s conclusion that the previous efforts to organize a

wall-to-wall bargaining unit of OJD employees should carry

weight in the analysis. The most recent wall-to-wall effort

had been six years before and the record contained no evi-

dence of any attempt to organize “on any other basis other

than a wall-to-wall basis,” such as a regional one. The dis-

senting member declined to infer from that history that the

barriers to representation for this group of employees com-

pelled certification of such a small bargaining unit.

24

As examples, the dissent cited AFSCME v. Washington County, 25 PECBR

466, 476 (2013) (dismissing petition because small unit certification provided “no

confidence” that it would not lead to fragmentation) and LIUNA v. City of Keizer,

18 PECBR 476, 484-85 (2000) (approving proposed smaller bargaining unit for

group of employees because employer already had to bargain with two other

units; third unit would not be added burden).

Cite as 304 Or App 794 (2020) 823

IV. ISSUES AND ANALYSIS ON REVIEW

On review, OJD raises two challenges to ERB’s

order. First, OJD argues that ERB erred as a matter of law

by certifying a “single-circuit-court” bargaining unit. OJD

urges that any such bargaining unit is per se inappropriate

given the overall structure and purpose of the unified state

court system. Second, OJD argues that, even if a single-

court unit is not per se inappropriate, ERB’s order in this

case is not supported by substantial evidence or substan-

tial reason. More specifically, OJD contends that ERB could

not find on this record that the Yamhill court employees’

shared community of interest is stronger than the interests

of other OJD employees and sufficiently distinct to warrant

a separate bargaining unit. OJD further contends that ERB

did not provide a rational explanation for that conclusion

sufficient to withstand review. We consider each issue in

turn.25

A. Single-Court Bargaining Units in General

In arguing that ERB erred as a matter of law in

certifying a single-circuit-court bargaining unit, OJD

acknowledges that our standard of review is deferential

to ERB’s adjudicative role in weighing and evaluating the

evidence in unit determination cases. See, e.g., Deschutes

County, 40 Or App at 376 (articulating standard). But, OJD

maintains, ERB must make the appropriate unit determi-

nation in a way that comports with the organic legal frame-

work that governs the mission and structure of a given pub-

lic employer. In this context, that framework includes, OJD

urges, the unique structure of OJD and the deliberate legis-

lative mandate for a unified court system that is “centrally

administered at the state level.” OJD emphasizes that, as

part of that legislative mandate, the Chief Justice has the

responsibility to set and apply to all OJD employees uniform

policies on “[m]any mandatory subjects of bargaining—for

example, wages, benefits, and grievance procedures.” OJD

thus asserts:

25

As we will explain, we agree with OJD’s second argument (lack of substan-

tial evidence and substantial reason) and we set aside ERB’s order on that basis.

We consider OJD’s first argument even though it is not dispositive because, as we

later explain, it informs the analysis of the second issue.

824 Oregon AFSCME Council 75 v. OJD - Yamhill County

“A single-circuit-court bargaining unit is inimical to

the legislative policy behind the creation of OJD, which

was to promote greater uniformity in employment pol-

icy among the circuit courts. If OJD must bargain sepa-

rately with the employees of a single court, it necessarily

must consider adopting employment policies otherwise set

at the state level that apply only to the employees of that

court. Yet adopting such policies will inevitably lead to

greater administrative fragmentation of the workforce, not

uniformity.”

(Emphasis in original.) For ERB to certify a proposed bar-

gaining unit along lines that fundamentally conflict with

OJD’s legal structure and essential mission is, OJD main-

tains, an error as a matter of law.

In response to OJD’s argument, AFSCME relies

on ERB’s reasoning in its order. ERB agreed (as we ear-

lier described) that a wall-to-wall bargaining unit would be

“much more preferable.” ERB did not agree, however, that “a

single, wall-to-wall bargaining unit” is the only appropriate

unit that may be certified consistently with the legislature’s

uniform state court design. ERB pointed to ORS 243.696(2),

which provides, in part:

“The Chief Justice of the Supreme Court shall represent

the judicial department in collective bargaining negotia-

tions with the certified or recognized exclusive represen-

tatives of all appropriate bargaining units of officers and

employees of the courts of this state who are state officers

or employees.”

Emphasizing the statute’s plural wording—“all appropriate

bargaining units”—ERB concluded that the legislature con-

templated “at least the possibility of multiple appropriate

bargaining units” within OJD’s workforce. ERB also pointed

to the fact that the legislature expressly made OJD subject

to collective bargaining under PECBA (ORS 8.270) without

providing for any special OJD bargaining unit determina-

tion standards.

ERB also responded to OJD’s concern that certify-

ing the proposed single-court bargaining unit would force it

to bargain separately over personnel policies for the Yamhill

employees, which might lead to one set of policies for them

Cite as 304 Or App 794 (2020) 825

and different policies for the unrepresented employees in

OJD. ERB considered that concern unfounded, suggesting

that the proposed unit was unlikely to have a significant

influence on OJD’s personnel and workplace policies:

“Although we are approving the proposed unit as appro-

priate for collective bargaining, we emphasize that noth-

ing in this order or PECBA requires [OJD] to agree to any

particular contract term; rather, PECBA requires only that

[OJD], and the union, collectively bargain in good faith. See

ORS 243.650(4) (‘The obligation to meet and negotiate does

not compel either party to agree to a proposal or require the

making of a concession.’). Moreover, under PECBA, [OJD]

is required to bargain over only mandatory subjects of

bargaining—not statutorily permissive subjects or other

‘subjects that the Employment Relations Board determines

to have a greater impact on management’s prerogative than

on employee wages, hours, or other terms and conditions of

employment.’ ORS 243.650(7)(c). Additionally, PECBA does

not exempt employees from performing their job duties or

complying with work rules (whether the employees orga-

nize court-by-court or wall-to-wall). Thus, after consider-

ing [OJD’s] concerns and the record in this case, we do not

conclude that approving this unit would be inimical to the

standardized and efficient adjudication of cases.”

(Footnotes omitted.)

Finally, although ERB concluded that the legisla-

ture had contemplated at least the possibility of multiple

appropriate OJD bargaining units, ERB did not believe

that certifying bargaining units for many or all of the other

circuit courts would be “the necessary result of finding the

petitioned-for unit appropriate.” ERB reasoned that “[n]oth-

ing in PECBA, or this Board’s rules and case law, require

this Board to continue approving district-based bargain-

ing units just because this Board has approved this one.”

Moreover,

“[a]t this point, granting this petition will result in only

one bargaining unit. The record does not include evidence

that AFSCME or any other labor organization is attempt-

ing to organize additional [judicial] District-based units

or any other bargaining unit. It may well be that the

petitioned-for unit is the only one that the [OJD] ever needs

to collectively bargain with.”

826 Oregon AFSCME Council 75 v. OJD - Yamhill County

Even if other OJD employees desire representation in the

future, ERB declared, “they have various options other than

petitioning to form another [court]-based unit,” such as peti-

tioning to organize on a regional basis or seeking to accrete

to (that is, join) the Yamhill County Circuit Court unit.26 By

way of a footnote, ERB commented that, “[e]ven if this Board

permitted two different bargaining units to be created,” the

representatives of those units and OJD “potentially could

address fragmentation concerns by agreeing to merge the

units or engaging in coalition bargaining.”

As a threshold matter, we agree with ERB that ORS

243.696(2) reflects the legislature’s understanding that it

would be at least possible that more than one bargaining

unit would be appropriate for OJD’s workforce. The plural-

ization of the word “units” in the statute suggests as much

textually. Contextually, however, that conclusion is not free

from doubt. The central purpose of that provision, as its plain

terms reveal, was to add the Chief Justice to the statute as

the designated bargaining representative for OJD. No such

provision had been included in the original Court Reform

Act.27 The amendment came soon after the Court of Appeals

had held that, notwithstanding the omission, OJD was still

fully subject to collective bargaining under PECBA. Lent v.

ERB, 63 Or App 400, 402, 664 P2d 1110, rev den, 295 Or 617

(1983).28 The legislature’s only objective may have been to

26

The “accretion” of a group of unrepresented employees to an existing unit

is not available to the unrepresented employees as a matter of right. It requires

a showing of a requisite level of support among the members of both groups, in

addition to other requirements. OAR XXX-XX-XXXX(4) (requirements for clarifi-

cation petitions that raise issue of adding unrepresented employees to an exist-

ing bargaining unit). ERB, in this case, did not explore the requirements for

accretion. In past decisions, ERB has explained that accretion is available only

for unrepresented employees who, as a group, “do not and cannot constitute an

appropriate bargaining unit” of their own. See Corrections Dept. and Exec. Dept.

and AFSCME, 12 PECBR at 888 (citing past ERB decisions).

27

Context, for purposes of statutory interpretation, includes prior versions of

the statute and existing case law, together with extant circumstances that give rise

to the need for legislation. State v. McNally, 361 Or 314, 325, 392 P3d 721 (2017)

(prior versions of same statute); Northwest Natural Gas Co. v. City of Gresham, 359

Or 309, 322-23, 323 n 7, 374 P3d 829 (2016) (presuming legislative awareness of

relevant case law, prior statutes, and extant dispute between city and utility).

28

Shortly after the Court Reform Act went into effect, then-Chief Justice

Lent filed a declaratory judgment action disputing the extent to which the leg-

islature intended OJD to have to mandatorily bargain under PECBA, as well as

the constitutionality of any requirement that it must. Id. at 402. One argument

Cite as 304 Or App 794 (2020) 827

ensure the Chief Justice’s obligation to engage in collective

bargaining on behalf of OJD; pluralizing the word “units”

would have been a natural word choice if the legislature did

not consciously consider whether OJD should be organized

on a wall-to-wall or some other basis.

There is another possibility, however. When ORS

243.696 was amended, multiple petitions were pending

before ERB seeking to certify different configurations of

bargaining units for OJD employees. See generally OPEU-

SEIU, AFSCME v. State Courts and Appellate Law Clerks,

7 PECBR 6199 (1984). The first petition was filed by the

Oregon Public Employees Unit (OPEU) before the Court

Reform Act had even taken effect; that petition sought cer-

tification of a bargaining unit comprised only of the employ-

ees of the state appellate courts. Id. at 6200. After the Court

Reform Act took effect, OPEU filed a second petition and

AFSCME filed a first, each proposing to divide OJD’s work-

force between them based on the OJD employees’ past rep-

resentation when they were county employees.29 While the

that the Chief Justice made on legislative intent was that ORS 243.696 provided

only for the state “Executive Department” to represent “state agencies” in collec-

tive bargaining; it did not include OJD or the Chief Justice. Id. at 404 n 3 (quoting

then-current version of statute and discussing Chief Justice’s argument). The

court rejected that and other of the Chief Justice’s arguments, and held that OJD

was fully subject to PECBA. Id. at 407. Two months after the court issued its deci-

sion, the legislature added the second subsection to ORS 243.696 and included

an emergency clause that made the amendment effective immediately on enact-

ment. See Or Laws 1983, ch 763, § 64 (declaring emergency; effective August 4,

1983); Lent, 63 Or App 400 (decision dated June 8, 1983). A few weeks after the

legislature amended the statute, the Supreme Court denied review in Lent. 295

Or 617, 670 P2d 1033 (order denying review dated August 31, 1983) (table).

29

In its order, ERB explained that, before the Court Reform Act and while

employed by the counties, some of the circuit court employees had been unrep-

resented, but many had been represented, usually by inclusion in county-wide

bargaining units (that is, units that contained other county employees, not just

court employees). Id. at 6202, 6204. OPEU had represented the court employ-

ees in Marion, Linn, Jackson, and Baker counties. AFSCME had represented

the court employees in Benton, Columbia, Coos, Hood River, Lane, Polk, Union,

Wasco, Clatsop, and Tillamook counties, and some but not all court employees in

Multnomah County. The court employees in Klamath, Clackamas, and Yamhill

counties were represented on a court-by-court basis by other labor organizations.

Id. at 6202-03. AFSCME’s petition sought designation of a unit consisting of

all OJD employees except those that had been represented by OPEU and those

employed by the appellate courts. OPEU’s second petition sought designation

of a unit consisting of all OJD employees whom it had represented when they

were employed by the counties, all OJD employees who were unrepresented while

employed by their county, and all employees of the appellate courts. Id. at 6200.

828 Oregon AFSCME Council 75 v. OJD - Yamhill County

matter was pending, OPEU changed its position and agreed

that the appellate court employees did not have “any differ-

ent community of interest than the employees of the rest of

the [newly unified] state court system.” Id. at 6201. After

ERB issued a proposed order on the consolidated petitions,

the appellate court law clerks were allowed to intervene to

argue that they should be excluded from the proposed bar-

gaining units. Id. at 6200.

ERB resolved the competing positions of the parties

by invoking its “long-standing policy against fragmenta-

tion” and its “general preference for wall-to-wall units wher-

ever practicable.” Id. at 6204. ERB ordered certification of

a wall-to-wall unit, with one small group excluded: appel-

late law clerks. Id. at 6205. ERB found that those law clerks

had distinct interests from the rest of OJD’s workforce, in

that they were limited duration employees whose “inter-

ests in retirement, transfer, job security, merit promotion,

grievance procedures, vacation accumulation, and many

other mandatory bargaining matters are so distinct” from

those of the other OJD employees that it would be “inappro-

priate to include them” in the wall-to-wall unit that ERB

was certifying. Id. ERB left it to the election process for the

employees in the certified wall-to-wall unit to determine

whether they would prefer to be represented by AFSCME

or by OPEU, or not represented at all. Id. at 6206. As we

know from the collective bargaining history recounted in

the testimony in this case, the OJD employees elected to be

unrepresented.

ERB’s order resolving those petitions had not yet

issued when the legislature amended ORS 243.696 to desig-

nate the Chief Justice as OJD’s bargaining representative in

negotiations with “all appropriate bargaining units.”30 But

AFSCME’s and OPEU’s three petitions had been pending

for some time, and both organizations had been parties to

the litigation in Lent, 63 Or App 400. It is at least plausible

30

ERB’s order issued on January 11, 1984 (id. at 6206), approximately five

months after the amendment to ORS 243.696 on August 4, 1983. Based on the

case numbers assigned to each petition, OPEU’s first petition was filed sometime

in mid- to late-1982, and the other two petitions were filed relatively early in

1983.

Cite as 304 Or App 794 (2020) 829

(if not highly likely) that the legislature added subsection (2)

to the statute aware that various efforts to organize OJD

employees were in progress. The pluralization of the word

“units” in the amendment therefore may have reflected the

legislature’s conscious choice not to put a “thumb on the

scale” on a matter then-pending and under active consider-

ation by ERB.

That context, coupled with the plural text of ORS

243.696(2), is enough for us to agree with ERB that the stat-

utory scheme governing OJD should not be understood to

dictate that only a wall-to-wall bargaining unit—and no

other configuration—is appropriate for the OJD workforce.31

But the question remains whether a single-court unit—

for the Yamhill County Circuit Court or any other single

Oregon court—is nevertheless inappropriate as a matter of

law, as OJD argues.

If, in its order, ERB had embraced a “single-court”

organizing principle for OJD’s workforce generally, we

would have no reservation agreeing with OJD and declaring

that approach to be erroneous as a matter of law. We ear-

lier recounted the history of Oregon’s uniform court system

and the extensive changes it brought about. We did that at

length because it should not be glossed over. That history

itself makes the compelling case for why collective bargain-

ing for OJD employees cannot take place on a court-by-court

basis throughout the state. To require the Chief Justice to

negotiate and bargain on that basis would return Oregon’s

uniform state court system to the fractured system that

the legislature abolished, with wages, benefits, and myriad

personnel policies and practices set through court-by-court

collective bargaining, rather than centrally and uniformly

for all state court employees regardless of where they work

throughout the state. In turn, the goal of “statewide allo-

cation of resources” to establish “an accountable, equitably

31

OJD, for its part, does not disagree. Before ERB, OJD appeared to have

been more adamant that only a wall-to-wall bargaining unit could comport with

the legal framework for OJD. In its briefing to this court, however, it has moder-

ated its position. OJD now urges that, although ORS 243.696(2) “allows multiple

bargaining units within OJD,” the statute contemplates at most that “different

types of OJD employees” (for example, the lawyers who work in various parts of

OJD), might appropriately form a separate bargaining unit.

830 Oregon AFSCME Council 75 v. OJD - Yamhill County

funded and uniformly administered system of justice” (ORS

1.001) would be fundamentally undermined.32

Rather than embrace that organizing principle,

however, ERB explicitly rejected it. It did so by insisting, in

essence, that this certification would be a one-time occur-

rence, with no implications for future OJD bargaining unit

determinations that ERB might be called on to make. ERB’s

reasoning in that regard, however, is neither logically satis-

fying nor legally sound.

ERB began by declaring that nothing in PECBA

or ERB’s rules and case law require ERB to “continue” to

approve other single-court-based bargaining units “just

because [ERB] has approved this one”—a rationale that

comes perilously close to suggesting that ERB permissibly

may make unit determinations ad hoc, without adhering to

guiding principles or uniform criteria from one unit deter-

mination to the next. To be sure, ERB cited as illustrative

(but did not discuss) one of its past decisions, Corrections

Dept. and Exec. Dept. and AFSCME, 12 PECBR 876. There,

ERB declined to certify as an appropriate bargaining unit

a new corrections facility, despite having certified separate

units for certain other corrections facilities in the past. ERB

explained in that case that circumstances had changed

since its past certifications and that the new facility seek-

ing certification would become part of an increasingly “inte-

grated state penal operation”:

“The state is in the process of centralizing operations and

exercising tighter control over management. Labor rela-

tions functions are becoming centralized with the ultimate

authority for all major personnel decisions at the institu-

tions being exercised by the department director, rather

than by management at the institutions as in the past. The

new hires will perform the same duties and have virtually

the same working conditions as do the employees at the

existing institutions. The community of interest among the

current and new employees, in other words, is identical.”

32

The unification of Oregon’s court system under the Court Reform Act

set Oregon apart nationally. As then-Chief Justice Balmer explained in the

ERB hearing, only one other state (New Jersey) has achieved the same level

of unification and central administration for its court system that Oregon has

achieved.

Cite as 304 Or App 794 (2020) 831

Id. at 889. In contrast to the public employer in that case,

OJD achieved functional integration and highly centralized

control and uniform personnel policies nearly 40 years ago,

with ever-increasing integration, centralization, and unifor-

mity since. The case that ERB cited refutes, rather than

supports, ERB’s reasoning here.

ERB’s other explanations for how ERB could find

the Yamhill court employees to be an appropriate unit, but

not any other single-court proposed unit, are no more reas-

suring. They reduce to: (1) no other group has yet asked;

(2) if one does, that group can propose something other than

a court-based unit, such as one drawn on regional lines; and

(3) the group can try to join the Yamhill unit. ERB all but

announced that, for future petitions, it would change the

ground rules and it would not consider certifying any future

bargaining unit on the same terms that it had applied in

this case. It is not too uncharitable, we believe, to describe

ERB as having announced a “first come, only served” policy

for the court employees of OJD.

ERB may not approach bargaining unit determi-

nations that way, for the employees of OJD or those of any

other public body. Although it may be correct that nothing

in PECBA requires ERB to approve future petitions for

single-court units “just because” it has approved this one,

a central purpose of PECBA is to provide a “uniform basis”

for recognizing the right of public employees to join organi-

zations and be represented in their employment relations

with their public employer. ORS 243.656(6). Consistently

with PECBA itself, ERB may not act ad hoc and it may not

disregard the cases that have come to ERB before or are

reasonably likely to come to ERB in the future. The same

is true under the Administrative Procedures Act. The point

of reviewing administrative orders for substantial evidence,

substantial reason, and compliance with controlling law is

to ensure that administrative decisions are “rational, prin-

cipled, and fair, rather than ad hoc and arbitrary.” Gordon

v. Board of Parole, 343 Or 618, 633, 175 P3d 461 (2007). And

apart from those statutory sources requiring even-handed

and principled decision-making, ERB has an obligation

under Article I, section 20, of the Oregon Constitution “to

832 Oregon AFSCME Council 75 v. OJD - Yamhill County

treat similarly situated people the same.” State v. Savastano,

354 Or 64, 96, 309 P3d 1083 (2013). For ERB to certify this

petition for a single-court bargaining unit of OJD employ-

ees, and no other, requires ERB to provide a rational expla-

nation that is reasonably related to ERB’s task in making

unit determinations and to the petitioning-group before it.

Savastano, 354 Or at 96. ERB’s explanation for why it can

certify this petition, and not like-kind future petitions, dis-

regards those legal constraints on its decision-making role.33

The failure of ERB’s explanation does not, however,

lead us to hold that certification of a single-court or similar

bargaining unit of OJD employees is per se unlawful. The

issue is a close one. As we have concluded, the centralized

structure of OJD and the legislative mandate for a uniform

court system preclude, as a matter of law, organizing all or

most of OJD’s employees in a way that would require collec-

tive bargaining on essentially a court-by-court basis. But it

is one thing to say that OJD’s workforce generally may not

be organized on that basis, and it is another to say that no

group of employees working for any court anywhere in the

state could constitute an appropriate bargaining unit, sepa-

rate and apart from the bulk of OJD’s workforce. We would

need to be able to confidently declare the latter to agree with

OJD.

33

We recognize, as ERB often cautions, that unit determinations are “nec-

essarily fact-driven,” Douglas County, 26 PECBR at 388, and often require an

“analysis tailored to the subject employees and the workplace at issue.” Assoc. of

Oregon Corrections Employees v. Dept. of Corrections and AFSCME, 18 PECBR

441, 446-47 (2000). Fact-matching often is of limited aid in unit determination

cases, given the boundless variation in circumstances between different public

employers (state agencies, counties, and cities), different workforces performing

entirely different jobs (e.g., law enforcement officers, road workers, corrections

staff, maintenance workers, educators, engineers, medical professionals, cleri-

cal staff), in highly incomparable workplaces (prisons, medical facilities, schools,

offices, outdoor environments). Thus, as a general proposition, it is “unlikely that

a prior case involving a different employer will conclusively resolve a future case.”

Douglas County, 26 PECBR at 391 (emphasis added). Here, however, ERB’s obser-

vations about future petitions pertain to the employees of one employer, OJD,

who are all subject to the ultimate direction of a single administrative head—

the Chief Justice—and who all work, as ERB expressly found, “in courthouses

throughout the state[, all with] similar job duties, work hours, and workplaces.”

Factual comparison is not only possible in that context, it is necessary. ERB must

be able to identify meaningful factual distinctions between one group of OJD’s

workforce and some other group of the same workforce to lawfully change the

terms on which the two groups may exercise their right to collectively bargain.

Cite as 304 Or App 794 (2020) 833

But the record before us is inadequate in that

regard. The record is extensively developed on the uniform

aspects of the state court system, and thus on the interests

that OJD employees throughout the state share under the

centralized policies that the Chief Justice and State Court

Administrator have put in place. We therefore know on

this record what interests are common to the employees of

all courts statewide. But in terms of what might be differ-

ent and might distinguish any one court’s employees from

the rest of OJD’s workforce, the evidence is limited to the

Yamhill County Circuit Court. The record is all but silent on

the other 26 judicial districts (with their 35 circuit courts),

the appellate courts, and the Tax Court in terms of how

working conditions or other collective-bargaining-related

interests of their employees might be so unique or particular

to those courts as to distinguish them from the rest of the

state’s unified court system. For that reason, we are unwill-

ing in this case to go as far as OJD asks and declare that

any single-court bargaining unit—whether for the Yamhill

County Circuit Court or any other state court in Oregon—is

inappropriate as a matter of law.

The issue that we can resolve on this record, how-

ever, is whether the factual evidence and ERB’s reason-

ing are sufficient to support ERB’s determination that the

Yamhill County Circuit Court bargaining unit is an appro-

priate one. Our discussion above informs our analysis in

that regard, as we will explain. We therefore turn to that

issue.

B. The Proposed Yamhill County Circuit Court Bargaining

Unit

As we earlier described, when, as here, a proposed

bargaining unit consists of a subset of a larger workforce,

the appropriate unit determination requires a finding that

the petitioning employees share a community of interest

“sufficiently distinct” from the interests of the excluded

employees to warrant the proposed separate bargaining

unit. Washington County, 20 PECBR at 756. In its order,

ERB found that the Yamhill employees’ community of inter-

est is significantly “stronger than, and distinct from, their

community of interest with other [OJD] employees” based

834 Oregon AFSCME Council 75 v. OJD - Yamhill County

principally on the fact that they have “day-to-day working

conditions” that the presiding judge and TCA have discre-

tion to set. Those interests are, ERB concluded, “distinct

enough” from those of other OJD employees to “support

creation of a separate unit” to represent the Yamhill court

employees and no others.

OJD challenges ERB’s community of interest con-

clusion, arguing that it is not supported by substantial evi-

dence and substantial reasoning. Specifically, OJD asserts:

“At its core, [ERB’s] decision was grounded on a conclusion

that the Yamhill County Circuit Court employees have

different enough working conditions from all other OJD

employees that they form a clearly distinct community of

interest. To make a comparison between two things, how-

ever, there must be evidence concerning the nature of both.

But here, there is, at most, evidence in the record concern-

ing a handful of the policies and practices at the Yamhill

County Circuit Court, and no evidence concerning the pol-

icies and practices at other courts[.]”34

OJD further argues that ERB did not adequately explain

how it evaluated the shared and distinct interests of employ-

ees in the proposed unit and explain its conclusion that

those interests were stronger than the interests they have

in common with all other OJD employees:

“For example, the order does not explain why some factual

findings, which potentially indicate a distinct community

of interest—e.g., physically separate locations or separate

immediate supervisors—should have outweighed other

findings of similarities—e.g., identical wages and bene-

fits; identical statewide policies and procedures; ‘similar

job duties, work hours, and workplaces’; similar job func-

tions; identical skills and training requirements; a single

grievance procedure that applies to all employees; and the

ability of circuit court employees to seamlessly cover the

positions of employees at other circuit courts.”

34

The dissenting member of ERB made the same basic point. Without evi-

dence of the policies of other courts, such as those for adjusted work hours, flex

and part-time schedules, and use of accrued leave, she could not agree that the

policies in place for the Yamhill employees could be considered different and

distinct from those of other courts. The majority offered no response to that

point.

Cite as 304 Or App 794 (2020) 835

We agree that ERB’s “distinct” community of

interest finding lacks the factual support that it requires.

Assessing whether a proposed unit of employees shares a

community of interest that is “distinct” from the employees

excluded from the unit is an inherently comparative exer-

cise. See Washington County, 20 PECBR at 752 n 4 (“The

important factor is not the label of the group, but rather

the community of interest they share when compared to the

interests of other employees.” (Emphasis added.)). To under-

take that analysis, ERB must first examine the shared col-

lective bargaining interests of the employees in the proposed

unit; ERB must then compare those shared interests to the

collective bargaining interests of employees who will be

excluded. See id. at 756-57 (engaging in comparative analy-

sis).35 For the comparison to be meaningful, it is not enough

to examine only the interests that the two groups have in

common—e.g., wages, benefits, and personnel rules—and

contrast them with the internally shared interests of the

petitioning employees—e.g., locally-set policies on part-time

schedules, adjusted daily work hours, and performance

review requirements. The analysis also requires examin-

ing the different and potentially divergent interests of the

excluded employees. In this context, that means examining

the policies in place for other OJD employees in terms of

part-time schedules, adjusted daily work hours, and similar

policies that are set by local court administrators. Without

that comparison, it is not possible to determine the extent to

which the interests of the two groups actually diverge, and

thus are distinct. Neither is it possible to assess whether

any divergence in interests is sufficient to warrant a sepa-

rate bargaining unit for the petitioning employees.36

35

ERB does not always describe the analysis in terms of the “collective bar-

gaining interests” of the employees, no doubt because that is a given. But ERB

has emphasized in some cases that the focus of the community of interest factor

is on the employees’ collective bargaining interests, not interests of a more gen-

eral nature. See, e.g., Fairview Training Center v. AFSCME, 8 PECBR 6666, 6688

(1984) (emphasizing that the analysis requires assessing the “labor relations”

community of interest of employees included and excluded from proposed unit);

Revenue Hearing Officers Assn. v. Dept. of Revenue and OPEU, 7 PECBR 6068,

6091 (1983) (similarly emphasizing that analysis of community of interest factor

evaluates “collective bargaining interests” of employees).

36

The traditional test under federal labor law, from which PECBA’s “com-

munity of interest” factor was borrowed, emphasizes that aspect of the analysis.

Under that traditional test, “the analysis logically begins by considering whether

836 Oregon AFSCME Council 75 v. OJD - Yamhill County

ERB did not make the needed comparison in this case.

ERB considered the shared collective bargaining interests of

all OJD employees in wages, benefits, personnel policies, and

similar uniform OJD workforce policies. ERB also examined

the interests that the Yamhill employees share among them-

selves in terms of the administrative policies that their presid-

ing judges and TCA have some latitude to set (e.g., part-time

schedules, adjustable work hours, performance evaluations).

But ERB did not examine any locally-set administrative pol-

icies in place for any other of the state’s 26 judicial districts

and 35 circuit courts (or the appellate or tax courts). Nor could

it. The record is all but silent on that score.37 ERB therefore

could not compare and contrast the workplace conditions of

the petitioned-for unit has an internal community of interest using the tradi-

tional criteria[.]” The Boeing Co., 368 NLRB No 67, slip op at 3 (Sept 9, 2019).

Then, “a comparative analysis of excluded and included employees” is required.

Id. That means more than just assessing the internal shared interests of the

employees in the proposed unit and their shared interests with the excluded

employees. The analysis also requires considering the distinct interests of the

excluded employees so that the shared and distinct collective bargaining inter-

ests of both groups—i.e., the included and excluded employees—can be compar-

atively analyzed and weighed. Id. at 4; see also PCC Structurals, Inc., 365 NLRB

No. 160, slip op at 5-7, 10 (Dec 15, 2017) (extensive discussion of traditional test).

37

What little evidence exists in the record suggests the likelihood of similar

and often common local court workplace policies, not significantly dissimilar or

sui generis ones. At least twice annually, presiding judges and the Chief Justice

meet as a group to discuss “best practices” at the circuit court level and be “on the

same page” as much as possible. TCAs do the same. With the passage of time since

the initial unification of the state courts, TCAs as a group have seen the value

of uniformity and have made the conscious decision to influence their respective

courts to become increasingly uniform with the others. The record reveals other

ways that individual courts work together to share policies and practices as well.

For example, the TCA for the Yamhill County Circuit Court, before becoming the

TCA there, worked in the circuit courts in Marion and Multnomah counties, as

well as in the State Court Administrator’s Office. Some of the discretionary poli-

cies and practices that she has implemented—such as annual performance eval-

uations for all staff—were in place in her other work environments. In setting

work performance expectations as part of the performance evaluation process,

she drew from those in place in Marion County when she worked there, and she

also researched the work performance expectations used in several other courts.

As another example, the presiding judges and TCAs for several of the courts in

the Willamette Valley (i.e., those in Yamhill, Linn, Benton, and Polk counties)

expect to work together on the statutorily mandated “business continuity plans”

for each of their courts, with the goal of being able to assist each other if one court

were damaged by a fire, a flood, or other disaster and needed to relocate staff to

work at another courthouse. Cross-court efforts of that kind are likely to encour-

age individual courts to coordinate their locally set workplace policies. In short,

what evidence there is in the record about the personnel policies and practices of

individual courts throughout the state provides a basis to infer that those policies

and practices are significantly similar and often the same, not the opposite.

Cite as 304 Or App 794 (2020) 837

the Yamhill employees with those of the employees in the rest

of OJD. Without that comparison and possible contrast, it is

not possible to know whether and how much those workplace

policies actually differ court-to-court. And without knowing

that, it is not possible to assess if the Yamhill employees’ col-

lective bargaining interests are “distinct” from those of the

rest of the OJD workforce to any significant degree.

ERB did not explain how it could make its “distinct”

community of interest finding without the comparison that

is inherent in that statutorily mandated factor. ERB’s order

suggests a possible rationale, however. ERB described the

Yamhill County Circuit Court presiding judge and TCA as

having exercised their administrative discretion to adopt

a number of personnel policies and practices “that acutely

affect the petitioned-for employees, and only those employ-

ees.” ERB also described the presiding judges and TCAs

of each of the circuit courts as having “significant author-

ity and discretion over a variety of personnel matters * * *

that acutely affect their court’s employees (and only those

employees).” Those observations suggest that ERB may

have reasoned that the mere existence of some adminis-

trative policy discretion at the local court level, regardless

of how that discretion is exercised, gives the employees of

each court a “distinct” community of interest, because each

court’s employees, and only those employees, have a collec-

tive bargaining interest in how that discretion is exercised

in their court; no comparison of policies from one court to

the next was therefore required.

That rationale—if it was ERB’s rationale—would

be a blueprint for court-by-court bargaining units. If the

Yamhill employees have a “distinct” community of interest

because they, and only they, are subject to the discretion-

ary policy choices of their presiding judge and TCA, then

the employees of each circuit court (and of the appellate and

tax courts) also have a “distinct” community of interest of

their own. Likewise, if the Yamhill employees’ community

of interest is “sufficiently distinct” to warrant a separate

bargaining unit for the same reason, and requires no com-

parison to the policies implemented in other courts to see

whether or how they differ, then the employees of the other

courts can make the same case for bargaining units of their

838 Oregon AFSCME Council 75 v. OJD - Yamhill County

own. As we have concluded, however, an organizing princi-

ple for OJD’s workforce that would require OJD to negotiate

and bargain on a court-by-court basis is fundamentally at

odds with the legislature’s uniform court system structure.

For ERB to certify the proposed unit on that rationale would

be an error as a matter of law.

We therefore agree with OJD that, on this record,

ERB could not reasonably conclude that the proposed unit of

Yamhill County employees share a “distinct” community of

interest. ERB did not and factually could not make the nec-

essary comparison between the employees in the proposed

unit and the rest of the OJD workforce that its “distinct”

community of interest conclusion requires. Without that fac-

tual comparison, ERB’s order is not supported by substan-

tial evidence.

For related reasons, we also agree that ERB’s order

is not supported by substantial reason. ERB concluded that

the Yamhill employees share a community of interest that

is “significantly stronger than” the interests they share with

other OJD court employees. ERB likewise concluded that

the Yamhill employees’ shared interests were “sufficiently”

distinct for a bargaining unit consisting only of the Yamhill

employees. ERB did little to explain those qualitative assess-

ments. ERB merely listed, in a highly generalized way, the

interests that Yamhill employees share with the rest of the

employees in OJD, and identified a few policies set at the

local level that affect the Yamhill employees “and only those

employees.”

On other facts, ERB’s conclusion might require little

explanation of how the facts that ERB found support the con-

clusion that ERB reached. If the interests of a petitioned-for-

unit of employees differ from those of the excluded employees

in terms of the most basic subjects of collective bargaining—

wages, hours, the jobs they perform, and the physical envi-

ronment in which they perform them, for example—listing

those differences may be explanation enough for a conclusion

that those employees have a sufficiently distinct community

of interest to warrant a separate bargaining unit. See, e.g.,

Fairview Training Center, 8 PECBR at 6687-88 (identifying

those differences in comparison of guards and nonguards at

Cite as 304 Or App 794 (2020) 839

secure state mental health institution; summarily conclud-

ing two groups have distinct community of interests war-

ranting two bargaining units). The need for explanation is

greater, however, when the differences between two groups

relate to workplace differences that are not as central to

collective bargaining and are not the kind of interests that

typically create significant conflicts among employees. See

Continental Web Press, Inc. v. NLRB, 742 F2d 1087, 1091 (7th

Cir 1984) (“The greatest conflicts of interest among workers

are over wages, fringe benefits, and working conditions.”). As

federal courts have observed in their review of NLRB deci-

sions for substantial reason:

“Merely recording similarities or differences between

employees does not substitute for an explanation of how

and why these collective-bargaining interests are relevant

and support the conclusion. Explaining why the excluded

employees have distinct interests in the context of collec-

tive bargaining is necessary to avoid arbitrary lines of

demarcation.”

Constellation Brands, U.S. Operations, Inc. v. NLRB, 842

F3d 784, 794-95 (2nd Cir 2016).

What thought process led ERB to its conclusion in

this case? More specifically, why did ERB conclude that the

Yamhill employees’ interests in certain locally-set policies

(e.g., part-time schedules, adjustable daily work hours, and

performance evaluation requirements) were so significant

as to outweigh and eclipse the uniform policies for all OJD

employees governing their wages, job security (grievance

procedures, layoffs, etc.), medical and dental benefits, retire-

ment programs, leave accrual types and rates, and court-

house security, among the many other uniform OJD working

conditions that are relevant to collective bargaining? ERB

did not explain.38 But it needed to. ERB generally discounts

38

ERB likewise did not explain how its finding that Yamhill employees are

relatively isolated physically and socially from other OJD employees supports its

“distinct community of interest” conclusion. In federal labor cases, interaction and

exchange among employees can have relevance in assessing an “intersection of

interests” among employees whose wages, benefits, hours, and physical environ-

ments differ and who otherwise do not have common enough interests to be in the

same bargaining unit. See, e.g., Pac SW Airlines v. NLRB, 587 F2d 1032, 1042-43

(9th Cir 1978) (illustrative facts and analysis). The relevance of limited contact

and interchange between OJD employees in the context of OJD’s functional inte-

gration and uniform wages, benefits, and personnel policies is not obvious.

840 Oregon AFSCME Council 75 v. OJD - Yamhill County

the kind of workplace variations that it relied on here, find-

ing instead that they do not create a distinct community of

interest when all employees in a workforce share the “basic

terms and conditions of employment,” such as “similar pay,

work hours, overtime, seniority, lay-off, holidays, vacations

and sick leave benefits, health benefits, retirement benefits,

[and] grievance procedures.” Assoc. of Public Employees, 10

PECBR at 891 (emphasis added). We have identified no ERB

decision, and ERB cites none, where a public employer has

had the functional integration, central administration, and

uniformity in its policies that OJD has, yet ERB has found

a “distinct” community of interest for such a small group

of employees (27 of 1,200) based on the kind of workplace

variations that the Chief Justice permits (but has ultimate

authority to control). Without an explanation of how ERB

reasoned from the facts to its conclusion, ERB’s order lacks

substantial reason.

AFSCME does not directly respond to OJD’s sub-

stantial evidence and substantial reason arguments. For

the most part, AFSCME characterizes OJD’s arguments as

amounting to a disagreement with how ERB weighed the

relevant statutory and administrative factors, particularly

its administrative preference for larger units. AFSCME

then relies on our deferential standard of review. See, e.g.,

Deschutes County, 40 Or App at 376 (court defers to ERB on

weight to be given various criteria in unit determinations).

Indeed, AFSCME goes so far as to urge that, even if we find

“some fault” with ERB’s evaluation of the relevant criteria,

we must still affirm ERB’s order because of the “broad scope

of authority delegated to ERB by the legislature” to make

appropriate bargaining unit determinations.

In that regard, AFSCME characterizes “appropri-

ate bargaining unit” as a delegative term within the mean-

ing of Springfield Education Assn., 290 Or 217, and argues at

some length that ERB has particular license in making unit

determinations without judicial interference. “Appropriate

bargaining unit,” however, is statutorily defined in terms

of the two procedural routes that can result in such a unit:

ERB certification or the employer’s voluntary recognition.

ORS 243.650(1). ERB does not have exclusive province over

unit determinations. What the legislature has delegated to

Cite as 304 Or App 794 (2020) 841

ERB is the authority, when it makes appropriate unit deter-

minations, to supplement the statutorily mandated crite-

ria by considering other like factors. See ORS 243.682(1)(a)

(ERB “shall consider such factors as community of inter-

est”). We do not discount the importance of ERB’s interpre-

tative role in advancing that generally expressed legislative

policy, both through rulemaking and adjudicating contested

petitions for unit certification. But, in that regard, ERB

performs the same significant function—not one somehow

broader in scope or administrative license—as other admin-

istrative bodies whose decisions affect important public and

private interests.

Neither ERB’s role in adjudicating contested peti-

tions for unit certification nor our appropriately deferential

standard of review insulates ERB’s decision from judicial

review for substantial evidence and substantial reason. As

this court has explained, the fact that an administrative

body may use its experience to evaluate and understand evi-

dence is not “a substitute for evidence presented at a hear-

ing.” Rolfe, 53 Or App at 951. And the Supreme Court, after

quoting Rolfe with approval, has emphasized the impor-

tance of substantial evidence review, even for bodies that,

like ERB, have particularly specialized expertise:

“The substantial evidence rule is a safeguard for anyone

faced with the possibility of adverse consequences from

a decision of an administrative agency. The rule loses its

meaning if it is interpreted as leaving to the internal ‘exper-

tise’ of agency personnel, rather than to the external scru-

tiny of appellate courts, the critical question whether the

facts of the case permit the administrative choice involved.”

Drew, 322 Or at 499. The same is true of review for sub-

stantial reason, which requires administrative agencies

“to demonstrate in their opinions the reasoning that leads

the agency from the facts that it has found to the conclu-

sions that it draws from those facts.” Id. at 500 (emphasis

in original). That requirement, among other virtues, facil-

itates judicial review, assures proper application of legal

principles, guards against arbitrary outcomes, and fosters

consistency in administrative decision-making. Id. (citing

cases and authorities). For that reason, an agency’s “failure

842 Oregon AFSCME Council 75 v. OJD - Yamhill County

to connect permissibly its facts and its holding is fatal to the

agency’s order.” Id. at 500-01.

The remaining question is the appropriate disposi-

tion in this case. Under ORS 183.482(7)(c), we have discre-

tion to either set aside or remand ERB’s order if it is not

supported by substantial evidence and, by extension, sub-

stantial reason. Here, ERB’s distinct community of inter-

est conclusion was central to its appropriate unit deter-

mination. The other factors that went into ERB’s decision

(employee desires and the failure of past wall-to-wall orga-

nizing efforts) are not enough to support certification with-

out satisfying the distinct community of interest criterion,

as ERB has repeatedly observed. See, e.g., AFSCME v. City

of Ontario, 22 PECBR 260, 275 (2008) (employee desires

and lack of prior representation not a basis for certification

in absence of distinct community of interest (citing cases));

Welches Education Assn., 12 PECBR at 317 (employee desires

are not controlling in unit determination decisions). Where,

as here, the record lacks the evidence necessary for the

comparative analysis that the community of interest factor

requires, we conclude that the appropriate remedy is to set

aside ERB’s order. Cf. City of Ontario, 22 PECBR at 277-78

(dismissing clarification petition where record developed at

hearing did not permit needed assessment of interests of

employees excluded from petition).39

Order set aside.

39

OJD requests that we set aside ERB’s order. AFSCME does not take issue

with that requested disposition; AFSCME disputes only whether OJD’s chal-

lenges have merit and asks that we affirm ERB’s decision.