American Federation of State County & Municipal Employees, Council 75, Local 2043 v. City of Lebanon

No. 5 February 2, 2017 809

IN THE SUPREME COURT OF THE

STATE OF OREGON

AMERICAN FEDERATION OF

STATE COUNTY AND MUNICIPAL EMPLOYEES,

COUNCIL 75, LOCAL 2043,

Petitioner on Review,

v.

CITY OF LEBANON,

Respondent on Review.

(ERB UP1411; CA A152059; SC S062750)

En Banc

On review from the Court of Appeals.*

Argued and submitted June 16, 2015.

Giles Gibson, Legal Counsel, Oregon AFSCME, Council

75, Portland, argued the cause and filed the brief for peti-

tioner on review.

John E. Kennedy, The Morely Thomas Law Firm,

Lebanon, argued the cause and filed the brief for respondent

on review.

Elizabeth A. Joffe, McKanna Bishop Joffe, LLP, Portland,

filed the brief on behalf of amici curiae Oregon AFL-CIO,

Oregon Education Association, Oregon Public Employees

Union, Oregon State Firefighters Council, and Service

Employees International Union Local 503.

BALDWIN, J.

The decision of the Court of Appeals is reversed. The case

is remanded to the Employment Relations Board for further

proceedings.

Landau, J., dissented and filed an opinion, in which

Balmer, C.J., and Brewer, J., joined.

______________

* On judicial review from Order of Employment Relations Board, dated

June 29, 2012. 265 Or App 288, 336 P3d 519 (2014).

810 AFSCME Council 75 v. City of Lebanon

Case Summary: Petitioner brought this unfair labor practice action against

the City of Lebanon after a city councilor published in a local newspaper a letter

disparaging labor unions and calling on the city’s employees to decertify their

existing union. The Employment Relations Board concluded that the city had

engaged in an unfair labor practice based on the councilor’s conduct, but the

Court of Appeals reversed, concluding that the councilor was neither a public

employer nor a public employer representative within the meaning of Oregon’s

Public Employee Collective Bargaining Act (PECBA). Held: Under PECBA, it is

an unfair labor practice for a public employer to interfere with employees in their

exercise of rights to participate in labor organizations, or to interfere with the for-

mation, existence or administration of any labor organization. “Public employer

representative” should be construed broadly in this context, in order to further

the legislature’s intent in enacting PECBA. Whether an individual acts as a pub-

lic employer representative is determined based on whether employees of a public

employer would reasonably believe that the individual acted on behalf of the pub-

lic employer in committing the unfair labor practice. In applying that standard,

adjudicators should consider factors such as whether the individual occupied

a high-ranking position, whether the individual had policy-making authority,

whether the person acted in an official capacity when committing the unfair labor

practice, whether the individual had the power to hire and fire employees, and

whether the public employer disavowed the actions of the individual.

The decision of the Court of Appeals is reversed. The case is remanded to the

Employment Relations Board for further proceedings.

Cite as 360 Or 809 (2017) 811

BALDWIN, J.

This case requires us to consider whether the

City of Lebanon (city) committed an unfair labor practice

under Oregon’s Public Employee Collective Bargaining Act

(PECBA), ORS 243.650 - 243.782, when one of its council

members, Campbell, wrote a letter to a local newspaper dis-

paraging labor unions in general and calling for city employ-

ees to decertify their existing union. The Employment

Relations Board (ERB or board) concluded that the city had

engaged in an unfair labor practice based on Campbell’s con-

duct. The Court of Appeals reversed, concluding that the city

was not liable because Campbell had not acted as a “public

employer or its designated representative” within the mean-

ing of PECBA. AFSCME Council 75 v. City of Lebanon, 265

Or App 288, 336 P3d 519 (2014). For the reasons explained

below, we reverse the decision of the Court of Appeals, and

remand to ERB for further proceedings.

I. BACKGROUND

The undisputed facts, as summarized by the Court

of Appeals, are:

“According to the City of Lebanon Charter of 2004, the

city is ‘a municipal corporation’ that includes ‘all territory

encompassed by its boundaries * * *.’ The city is also a pub-

lic employer as defined by ORS 243.650(20). All powers of

the city are vested in the city council, which is composed

of a mayor and six councilors; the council delegates much

of that power to the city administrator (manager), who is

the ‘administrative head of the government of the City.’

Specifically, the city administrator (manager) is ‘responsi-

ble for the daily operation of the City’s departments and

implementation of Council policy.’

“The council is responsible for holding regular meetings,

adopting ‘rules for the government of its members and pro-

ceedings[,]’ and appointing certain city officers. The coun-

cil is also responsible for passing ordinances and voting on

questions before it, including whether to approve ‘a bond of

a City officer or a bond for a license, contract or proposal[.]’

Except as the city charter provides, ‘the concurrence of a

majority of the members of the Council present and voting

at a Council meeting shall be necessary to decide any ques-

tion before the Council.’ Further, ‘[n]o action by the council

812 AFSCME Council 75 v. City of Lebanon

shall have legal effect unless the motion for the action and

the vote by which it is disposed of take[ ] place at proceed-

ings open to the public.’

“Campbell was appointed as a city councilor in 2010 and

was a member of the budget committee. As a city councilor,

she would ‘be asked to vote and ratify any collective bar-

gaining agreement with the Union that [was] negotiated

by the City negotiation team.’ However, Campbell was not a

member of the city’s labor negotiation team, and, [o]ver the

last 10 years, no city councilor [had] been a member of the

City’s labor negotiation team.

“At the time of the events giving rise to this case, the

city was experiencing a budget crisis, and the city and the

union were parties to a collective bargaining agreement

that was set to expire. The president of the union, along

with the president of another union that represents city

employees, co-authored a letter to the city. In that letter,

the union presidents stated that the city should consider

eliminating the positions of assistant city manager/human

resources manager and human resources assistant before

cutting essential services or laying off union workers.

“Shortly thereafter, Campbell sent a letter to the

Lebanon Express, a local newspaper. The letter was

addressed to ‘All Citizens of Lebanon[.]’ Campbell began

the letter by stating:

“ ‘I would like to inform all of you about some elements of

my personal background before I get to the basis of my

letter. Further I would like to clarify this letter is being

written by me as an individual and not a reflection of a

majority of the City Council, the City or my employer.’

“Campbell then described her and her family’s involve-

ment with unions, defended the city’s human resources

positions, and criticized unions in general. Campbell con-

cluded the letter by stating:

“ ‘To employees of the City and other organizations

imprisoned by the dictatorship of a union as a pri-

vate citizen I advise you to seek out the Department of

Labor website where you can find instructions on how

to de-certify your union captors. As an individual and

former union member I believe you can put your union

dues to better use in your own household budget and in

supporting causes that truly express your own values.’

Cite as 360 Or 809 (2017) 813

“ ‘Sincerely,’

“ ‘Margaret A. Campbell’

“ ‘City Councilor’

“ ‘Ward II’

“The newspaper published an article that summarized

Campbell’s letter. That article noted that the letter could be

found on the newspaper’s website and stated that Campbell

planned to read the letter at a city council meeting. The

parties later stipulated that Campbell did not read the let-

ter at the meeting.”

City of Lebanon, 265 Or App at 289-91 (alterations in

orginal).

As a result of Campbell’s conduct, AFSCME Council

75 (union) filed an unfair labor practice complaint against

the city, alleging that Campbell’s comments were made in her

official capacity as a council member. The parties submitted

the case on stipulated facts directly to ERB. The board con-

cluded that the city violated PECBA when Campbell, in her

letter, advised city employees “to seek out the Department

of Labor website where you can find instructions on how to

de-certify your union captors.”1 The board issued a cease-

and-desist order and required the city to post an official

notice of its wrongdoing. See ORS 243.676 (authorizing

such remedy when unfair labor practice established). The

board reasoned that a “public employer [under the PECBA]

is liable for the actions of its officials” and that, because

Campbell “spoke as the City’s representative, liability for her

remarks is ascribed to the City.” The board observed that

Campbell was “a member of a six-person Council in which

the City Charter vests all powers. The Council is the public

employer[,] and Campbell shares that status because she is

a member of the Council.” (Emphasis in original.) The board

further noted that Campbell, “as a member of the council

1

Specifically, the board concluded that the city had violated ORS 243.672(1)(a)

and (b), which provide:

“It is an unfair labor practice for a public employer or its designated rep-

resentative to do any of the following:

“(a) Interfere with, restrain or coerce employees in or because of the

exercise of rights guaranteed in ORS 243.662.

“(b) Dominate, interfere with or assist in the formation, existence or

administration of any employee organization.”

814 AFSCME Council 75 v. City of Lebanon

that is responsible for formulating all City policies and over-

seeing all City operations, is a public employer.”2

In the Court of Appeals, the city assigned error to

ERB’s conclusion that Campbell acted as a public employer

or its designated representative under PECBA when she

submitted her letter to the newspaper.3 The Court of Appeals

agreed with the city and reversed. The court concluded that

Campbell was not the city’s “designated representative”

within the meaning of PECBA, because the record lacked

any evidence that the city had “specifically designated”

Campbell to act as its representative. City of Lebanon,

265 Or App at 295-96. Further, the court concluded that

Campbell could not be a “public employer” under PECBA,

because she was not acting as an agent when she submitted

her letter to the local newspaper:

“The union raises an interesting question by asserting that

we should apply agency principles in this case: whether a

public employer can be liable for an unfair labor practice

committed by an agent other than its designated represen-

tative. However, we need not resolve that question because,

even assuming without deciding that it is appropriate to

apply agency principles in this context, we conclude that

Campbell was not acting as the city’s agent when she wrote

and sent her letter.”

Id. at 297 (footnote omitted).

2

The board relied on its prior decision in OPEU v. Jefferson County, 18

PECBR 310 (1999), in which a county commissioner unlawfully refused to

directly bargain with a union because bargaining unit members picketed his per-

sonal business. The commissioner told the president of the union that “he wanted

to get rid of [the union]” and that he did not want to talk with the union’s staff

members. ERB concluded that the commissioner’s statements interfered with the

administration and existence of the union:

“Ahern’s comments, directed to OPEU’s local president and almost certain

to be relayed to other members of the bargaining unit, strike at the core of

the relationship between the employees and OPEU. When one of the three

main decision-makers for the County says he wants the employees to get rid

of OPEU and not let OPEU staff members participate in bargaining, that

directly impacts OPEU by undermining bargaining unit members’ confi-

dence in OPEU as exclusive representative.”

Id. at 318 (footnote omitted).

3

The city did not assign error to ERB’s conclusions that Campbell’s conduct

otherwise amounted to an unfair labor practice or that holding the city liable for

her comments did not violate the free speech guarantees of Article I, section 8, of

the Oregon Constitution.

Cite as 360 Or 809 (2017) 815

We accepted the union’s petition for review to deter-

mine whether Campbell was either a “public employer”

or a “designated representative” of the city under PECBA

when she submitted her letter to the newspaper. On review,

the city does not challenge ERB’s conclusion that the por-

tion of Campbell’s letter urging city employees to decer-

tify their union would constitute an unfair labor practice

under ORS 243.672(1)(a) and (b) if committed by “a public

employer or its designated representative.” The only issue

for us to resolve, therefore, is whether the city may be held

liable for Campbell’s actions because she was either a “pub-

lic employer” or its “designated representative” within the

meaning of PECBA.

II. ANALYSIS

A.  Purposes of PECBA and the NLRA

We begin our analysis by briefly examining the

legislature’s purpose in enacting PECBA. This court

has observed that, by enacting PECBA, first passed in

1973, “the legislature has provided a comprehensive stat-

utory scheme authorizing and regulating collective bar-

gaining between municipal and other public employers

and employees, administered by ERB.” City of Roseburg

v. Roseburg City Firefighters, 292 Or 266, 268, 639 P2d

90 (1981). This court noted that PECBA was designed

to improve relations between public employers and their

employees:

“* * * PECBA is intended to protect [public employees’]

economic welfare during their employment and to provide a

means for them to affect certain negotiable working condi-

tions. Another policy served by PECBA is to protect public

safety by the substantive device of prohibiting strikes of

public safety employees. The substantive goal of that ban

is prevention of interruption in the provision of essential

government services. The class of persons to be benefited

by this policy extends beyond the population of any city.

PECBA is expressly premised upon a legislative determi-

nation that the people of the state have an interest in public

employment relations at both the state and local levels of

government.”

Id. at 276.

816 AFSCME Council 75 v. City of Lebanon

Basically, in enacting PECBA, the legislature

extended to public employees in Oregon the same benefits

and protections that federal law had long afforded to employ-

ees in the private sector under the National Labor Relations

Act (NLRA).4 Congress enacted the NLRA, a sweeping piece

of labor legislation, in 1935. The overarching purpose of the

NLRA, also known as the Wagner Act, was to protect employ-

ees against employer interference with their organizational

rights. See John E. Higgins ed., 1 The Developing Labor Law

29 (6th ed 2012) (“The prime function of the Act was to pro-

tect employees against employer tactics designed either to

obstruct organizational efforts or to withhold the fruits of

those efforts.”); see also Radio Officers’ Union of Commercial

Telegraphers Union, A.F.L. v. NLRB, 347 US 17, 40, 74 S Ct

323, 98 L Ed 455 (1954) (“The policy of the Act is to insulate

employees’ jobs from their organizational rights.”). Senator

Wagner, the sponsor of the bill, emphasized that purpose in

his statements on the Senate floor. He argued that employ-

ees’ ability to join the labor organizations of their choosing,

free from employer interference, had become a necessity in

the modern industrial era: “Caught in the labyrinth of mod-

ern industrialism and dwarfed by the size of corporate enter-

prise, [the employee] can attain freedom and dignity only

by cooperation with [other employees].” 79 Cong Rec 7565

(May 15, 1935) (statement by Senator Wagner). He insisted

that bill’s purpose was to ensure employees’ freedom of choice

with regard to their organizational rights: “[The bill] does

not force or even counsel any employee to join any union if

he prefers to deal directly or indirectly with his employers.

It seeks merely to make the worker a free man in the eco-

nomic as well as the political field.” Id.

To accomplish its broad purpose of protecting

against interference with labor rights, the NLRA conferred

on employees a “triad of rights”: (1) the right to organize;

(2) the right to bargain collectively; and (3) the right to

engage in strikes, picketing, and other concerted activi-

ties. Higgins, The Developing Labor Law, at 28. The NLRA

4

The NLRA applies only to private sector employment and expressly excludes

public entities from the definition of “employer.” See 29 USC § 152(2) (noting that

an “employer” under the NLRA “shall not include the United States or * * * any

State or political subdivision thereof”).

Cite as 360 Or 809 (2017) 817

further assured the enjoyment of those rights by declaring

it an unfair labor practice for an employer to, among other

things, interfere with, restrain, or coerce employees in the

exercise of their rights under the Act. 29 USC § 158(1).

In many respects, PECBA was patterned after the

NLRA. See Elvin v. OPEU, 313 Or 165, 175, 832 P2d 36

(1992) (noting that PECBA was “modeled” after federal act);

Donald W. Brodie, Public Sector Collective Bargaining in

Oregon, 54 Or L Rev 337, 337-38 (1975) (same).5 Similar to

the protections that the NLRA provides for private employ-

ees, PECBA provides public employees the right to form

and join labor organizations, ORS 243.662; requires good

faith in collective bargaining, ORS 243.672(e); and prohib-

its unfair labor practices, ORS 243.672(c). See Carlton J.

Snow, The Steelworkers Trilogy in Oregon’s Public Sector, 21

Willamette L Rev 445, 455 (1985) (identifying similar provi-

sions in PECBA and NLRA). Indeed, PECBA and the NLRA

define what constitutes an “unfair labor practice” in nearly

identical ways. The NLRA provides, among other things,

that it is an unfair labor practice for an employer:

“(1)  to interfere with, restrain, or coerce employees in

the exercise of the rights guaranteed in section 157 of this

title;

“(2)  to dominate or interfere with the formation or

administration of any labor organization or contribute

financial or other support to it[.]”

29 USC § 158(a). Likewise, under PECBA, it is an unfair

labor practice for “a public employer or its designated repre-

sentative” to, among other things:

5

The legislative history of PECBA makes little mention of the NLRA. That

history indicates, however, that the legislature drew from other states’ public

sector bargaining acts, which—in turn—had been modeled after the federal

act. See, e.g., Tape Recording, Senate Committee on Labor, HB 2263, May 31,

1973, Tape 19, Side 2 (statement of Jim Redden, chairman of Governor’s Task

Force on Collective Bargaining in the Public Sector) (noting that PECBA was

based on public bargaining statutes in other states—namely, New York, Hawaii,

and California); Marcus R. Widenor, Public Sector Bargaining in Oregon: The

Enactment of the PECBA, University of Oregon, LERC Monograph Series No. 8

(1989) (other states’ bargaining laws in existence at time of PECBA’s enactment

“drew on the model for labor-management relations outlined for private sector

workers in the National Labor Relations Act”).

818 AFSCME Council 75 v. City of Lebanon

“(a)  Interfere with, restrain or coerce employees in

or because of the exercise of rights guaranteed in ORS

243.662.

“(b)  Dominate, interfere with or assist in the formation,

existence or administration of any employee organization.”

ORS 243.672(1).

In addition to their nearly identical provisions relat-

ing to unfair labor practices, PECBA and the NLRA both

express policies of promoting collective bargaining and pro-

tecting employees’ organizational rights. The NLRA, for

example, declares that it is the policy of the United States to

reduce the causes of industrial strife by encouraging collec-

tive bargaining and protecting employees’ exercise of “full

freedom of association, self-organization, and designation

of representatives of their own choosing, for the purpose of

negotiating the terms and conditions of their employment

or other mutual aid or protection.” 29 USC § 151. Similarly,

the 1973 Legislative Assembly declared it to be the policy of

Oregon that “[t]he people of this state have a fundamental

interest in the development of harmonious and cooperative

relationships between government and its employees.” ORS

243.656(1). The Oregon legislature also declared that the

purposes of PECBA are to “obligate public employers, pub-

lic employees and their representatives to enter into collec-

tive negotiations with willingness to resolve grievances and

disputes relating to employment relations” and to promote

improved employer-employee relations “by providing a uni-

form basis for recognizing the right of public employees to

join organizations of their own choice, and to be represented

by such organizations in their employment relations with

public employers.” ORS 243.656(5).

B.  Whether Campbell’s Statements May Be Imputed to the

City

Having briefly described the purposes of PECBA

and its similarities to the NLRA, we now turn to the ques-

tion on review: Was Campbell’s conduct that of a “public

employer or its designated representative” within the mean-

ing of PECBA when she submitted her letter to the newspa-

per encouraging city employees to decertify their union?

Cite as 360 Or 809 (2017) 819

The union argues that Campbell is a “public

employer” by virtue of her membership on the city’s govern-

ing body. The union also reprises the argument it made in the

Court of Appeals that federal cases interpreting and apply-

ing the NLRA support its position that Campbell should be

viewed as a “public employer” under PECBA. For its part,

the city argues that, under its charter, members of the coun-

cil are not authorized to act individually and that a majority

vote of the council is required for the council to take offi-

cial action. As a result, the city contends that an individual

city councilor cannot be a “public employer” for purposes of

PECBA. Further, the city argues that a city councilor is not

a “designated representative” of the city, because city coun-

cilors are not specifically designated by the city to act in its

interests in labor matters. Rather, under the city’s charter,

only the city manager has the authority to hire, fire, or dis-

cipline any city employee.

We review ERB’s order holding the city liable for

an unfair labor practice for legal error. ORS 183.482(8). To

resolve this interpretive dispute as to whether Campbell

acted as a “public employer or its designated representative”

under ORS 243.672(1), we examine the text of the statute

in context together with any relevant legislative history to

determine legislative intent. State v. Gaines, 346 Or 160,

171-72, 206 P3d 1042 (2009).6

As noted, ORS 243.672(1) provides, in part:

“(1)  It is an unfair labor practice for a public employer

or its designated representative to do any of the following:

“(a)  Interfere with, restrain or coerce employees in

or because of the exercise of rights guaranteed in ORS

243.662.

“(b)  Dominate, interfere with or assist in the formation,

existence or administration of any employee organization.”

(Emphasis added.)

6

We do not give deference to ERB’s interpretation of “public employer”

under the statute, because such deference is not given when a term is inexact.

Blachana, LLC v. Bureau of Labor and Industries, 354 Or 676, 687, 318 P3d 735

(2014) (description of “exact,” “inexact,” and “delegative” terms for purposes of

determining deference to agency when disputed statutory term is part of reg-

ulatory scheme). The term “public employer” is an inexact term, because it is

imprecise, requiring further interpretation. Id.

820 AFSCME Council 75 v. City of Lebanon

1.  “Public employer”

We begin by analyzing whether Campbell acted as

a “public employer” within the meaning of ORS 243.672(1)

when she wrote her letter. PECBA defines a “public employer”

as

“the State of Oregon, and the following political subdivi-

sions: Cities, counties, community colleges, school districts,

special districts, mass transit districts, metropolitan ser-

vice districts, public service corporations or municipal cor-

porations and public and quasi-public corporations.”

ORS 243.650(20) (emphasis added). Thus, under the

plain terms of the statute, the city in this case is a “public

employer.”

As a corporate entity, a city can act in either of two

ways. It can take official action in accordance with its gov-

erning documents, or it can act through its agents. In this

case, we need not decide whether the term “public employer”

extends to the city’s agents, because another provision of

ORS 243.650 specifically prohibits at least some city agents

from engaging in unfair labor practices. As noted, ORS

243.672(1) makes it an unfair labor practice for a public

employer or its designated representative to engage in spec-

ified conduct. Subsection (21) of ORS 243.650 defines the

term “public employer representative” as “includ[ing] any

individual or individuals specifically designated by the pub-

lic employer to act in its interests in all matters dealing with

employee representation, collective bargaining and related

issues.” Thus, if Campbell was acting as the city’s “desig-

nated representative” when she wrote her letter, the city

may be held liable for her conduct.

2.  “Designated representative”

Before determining whether Campbell was a “desig-

nated representative” of the city, we first address a somewhat

curious discrepancy in the terminology that the legislature

used to describe the individuals whom a public employer

designates to act in its interests. As noted, ORS 243.672(1)

prohibits a “public employer or its designated representative”

from engaging in an unfair labor practice. The statute does

not define what constitutes a “designated representative” of

Cite as 360 Or 809 (2017) 821

a public employer, however. Instead, as discussed, the stat-

ute defines the similar term “public employer representa-

tive.” Ordinarily, we presume that different terms in a stat-

ute connote different meanings. See, e.g., State v. Connally,

339 Or 583, 591, 125 P3d 1254 (2005) (so stating). What

makes the use of different terms in this case perplexing,

however, is that the defined term “public employer represen-

tative” does not appear anywhere else in the statute. As a

result, if we were to interpret a “public employer represen-

tative” under ORS 243.650(21) to mean something differ-

ent than a “designated representative” of a public employer

under ORS 243.672(1), then we would relegate the former

term to mere surplusage—a result that this court seeks to

avoid. See Crystal Communications, Inc. v. Dept. of Rev., 353

Or 300, 311, 297 P3d 1256 (2013) (“As a general rule, we

construe a statute in a manner that gives effect, if possible,

to all its provisions.”).

Given the textual similarity between a “public

employer representative,” which is defined as an individual

whom a public employer designates to act in its interests, and

a “designated representative [of a public employer],” we find

it likely that the legislature intended those terms to be used

interchangeably. Indeed, that is a more harmonious reading

of the statute than one that would read ORS 243.650(21)

out of PECBA. See ORS 174.010 (when construing statutes,

court may not omit text that legislature inserted). We there-

fore construe a “public employer representative” and a “des-

ignated representative [of a public employer]” under PECBA

to be synonymous. Accordingly, we use those terms inter-

changeably in this opinion.

We now consider whether Campbell acted as a “des-

ignated representative” of the city in writing her letter, such

that the city may be held liable for her conduct under ORS

243.672(1). As noted, ORS 243.650(21) provides that a public

employer representative “includes any individual or individ-

uals specifically designated by the public employer to act in

its interests in all matters dealing with employee represen-

tation, collective bargaining and related issues.” (Emphasis

added.) The legislature’s use of the term “includes” indi-

cates that a “public employer representative” is not limited

to those individuals whom a public employer specifically

822 AFSCME Council 75 v. City of Lebanon

designates to act in its interests in all labor-related matters.

See Haynes v. Tri-County Metro., 337 Or 659, 664-65, 103

P3d 101 (2004) (when legislature uses term “include,” defini-

tion is nonexclusive); Beaver v. Pelett, 299 Or 664, 668, 705

P2d 1149 (1985) (legislature’s use of verb “includes,” rather

than “means,” indicates that definition is not exhaustive).

Rather, the term “includes” suggests that a “public employer

representative” also encompasses some broader category of

individuals who act on behalf of a public employer.

Our task in determining whether Campbell is

a “public employer representative,” therefore, is twofold.

First, we must determine whether the city “specifically

designated” her to act in its interests in “all” matters deal-

ing with employee representation. Second, if not, we must

determine which other individuals may constitute “public

employer representatives” and whether Campbell was such

an individual.

With regard to the first inquiry, the record does not

show that the city “specifically designated” Campbell “to act

in its interests in all matters dealing with employee rep-

resentation, collective bargaining and related issues.” ORS

243.650(21). Nor does the union offer any evidence or argu-

ment to support such a proposition. We therefore conclude

that Campbell was not the type of representative whom a

public employer “specifically designates” to act in its inter-

ests in all labor matters.

Turning to the second inquiry, we must determine

which other individual representatives of a public employer

the legislature intended the term “public employer represen-

tative” to include. The dictionary defines a “representative” as

“one that represents another as agent, deputy, substitute, or

delegate usu. being invested with the authority of the princi-

pal.” Webster’s Third New Int’l Dictionary 1926-27 (unabridged

ed 2002). Similarly, it defines the verb “represent” as

“to supply the place, perform the duties, exercise the rights,

or receive the share of : take the place of in some respect

: fill the place of for some purpose : substitute in some capac-

ity for : act the part of, in the place of, or for (as another per-

son) usu. by legal right.”

Cite as 360 Or 809 (2017) 823

Id. at 1926. Under its plain meaning, then, the term “rep-

resentative” suggests some type of agency relationship

between a public employer and its representative—that is,

that a public employer representative is in some way autho-

rized to act “in the place of, or for” the public employer. As

discussed, however, the text of ORS 243.650(21) does not

exhaustively define which individual agents might be con-

sidered a “representative” of a public employer.

Because ORS 243.650(21) does not exhaustively

define a “public employer representative,” we look to the

statutory context for guidance. One contextual clue is the

legislature’s statement of policy. See US National Bank v.

Boge, 311 Or 550, 560-61, 814 P2d 1082 (1991) (express

purpose statement may be considered as context). As

noted at the beginning of this analysis, the legislature

included a policy statement in PECBA, generally mod-

eled after the policies articulated in the NLRA, expressly

finding and declaring that the people of Oregon “have a

fundamental interest in the development of harmonious

and cooperative relationships between government and

its employees.” ORS 243.656(1). To that end, the legisla-

ture stated that “[r]ecognition by public employers of the

right of public employees to organize and full acceptance

of the principle and procedure of collective negotiation

between public employers and public employee organi-

zations can alleviate various forms of strife and unrest.”

ORS 243.656(2). The legislature further recognized that

“protection by law of the right of employees to organize

and negotiate collectively safeguards employees and the

public from injury, impairment and interruptions of nec-

essary services.” ORS 243.656(3). Ultimately, the legisla-

ture stated that the purpose of PECBA was to “promote

the improvement of employer-employee relations within

the various public employers by providing a uniform basis

for recognizing the right of public employees to join organi-

zations of their own choice, and to be represented by such

organizations in their employment relations with public

employers.” ORS 243.656(5). The legislature’s statement

of policy thus demonstrates an intent for PECBA to apply

broadly in favor of public employees’ rights to organize and

bargain collectively.

824 AFSCME Council 75 v. City of Lebanon

That intent is borne out by other provisions of

PECBA as well. See Force v. Dept. of Rev., 350 Or 179, 188, 252

P3d 306 (2011) (“ ‘[C]ontext’ includes, among other things,

other parts of the statute at issue.”). For example, PECBA

expressly provides that “[p]ublic employees have the right

to form, join and participate in the activities of labor orga-

nizations of their own choosing.” ORS 243.662. That right

is protected by ORS 243.672—the provision at issue in this

case—which imposes liability for various unfair labor prac-

tices. As relevant to this case, a public employer or its desig-

nated representative commits an unfair labor practice if the

employer or representative “interfere[s] with, restrain[s]

or coerce[s] employees in or because of the exercise of

rights guaranteed in ORS 243.662.” ORS 243.672(1)(a).

Read together, those provisions further demonstrate the leg-

islature’s intent for PECBA to broadly protect public employ-

ees against employer interference with their organizational

and bargaining rights.

The statutory context thus indicates that the term

“public employer representative” should be construed broadly.

Neither the text of ORS 243.650(21) nor other, related provi-

sions of PECBA, however, conclusively identify which indi-

vidual agents of a public employer are “include[d]” within the

definition of a “public employer representative.” We therefore

seek guidance on that point from relevant federal case law

that has developed under the NLRA. Specifically, we con-

sider federal cases interpreting the NLRA that were in exis-

tence at the time that the legislature enacted PECBA. Those

cases, although not binding on this court, provide persuasive

authority for this court’s interpretation of PECBA, because,

as noted, the legislature largely modeled Oregon’s statute

after the federal one. Elvin, 313 Or at 177 (“Because * * *

PECBA was adopted to model the NLRA, we look to cases

decided under the NLRA, and particularly to cases decided

prior to 1973—the year in which PECBA was adopted—to

obtain guidance in interpreting PECBA.”).7

7

The dissent argues that there is “no textual connection” between the

PECBA and the NLRA that would provide a basis for concluding that the Oregon

legislature intended the PECBA to incorporate the federal case law that existed

under the NLRA. 360 Or at __ (Landau, J., dissenting). We disagree. Both the

state and federal statutes prohibit an “employer” from committing an unfair

labor practice. And both statutes provide that it is an unfair labor practice for an

Cite as 360 Or 809 (2017) 825

As early as 1974—shortly after PECBA was

enacted—the Oregon Court of Appeals acknowledged the

similarities between the state and federal statutes, and

concluded that federal case law interpreting the NLRA

could provide guidance in interpreting related provisions of

PECBA. See Klamath County v. Laborers Int’l Union, Local

915, 21 Or App 281, 288, 534 P2d 1169 (1975) (“[T]he simi-

larity between parts of the two statutes indicates that fed-

eral decisions interpreting the NLRA be given some weight

in interpreting similar sections of the Oregon statute.”).

Since that time, Oregon appellate courts have continued to

consider federal case law for its persuasive value in inter-

preting PECBA. See, e.g., Elvin, 313 Or at 179 (“[W]e inter-

pret PECBA by looking to how the NLRA was interpreted

before 1973[.]”); Assn. of Oregon Corrections Emp. v. State of

Oregon, 267 Or App 413, 418, 343 P3d 637 (2014) (because

PECBA was modeled after NLRA, “federal case law pro-

vides guidance in interpretation of PECBA”); Portland

Assn. Teachers v. Mult. Sch. Dist. No. 1, 171 Or App 616,

631 n 6, 16 P3d 1189 (2000) (because PECBA adopted to

model NLRA, court looked to “cases decided under the fed-

eral act—and particularly to cases decided before 1973, the

year in which PECBA was adopted—for guidance in inter-

preting PECBA”). We once again seek guidance from federal

employer to “interfere with, restrain or coerce employees” in the exercise of their

organizational rights. ORS 243.672(1); 29 USC § 158(a)(1). Based on that tex-

tual connection—as well as the shared purpose of the two statutes—we conclude

that the relevant federal case law in existence at the time of PECBA’s enactment

provides persuasive authority when interpreting the unfair-labor-practice provi-

sions of PECBA. See State v. Kennedy, 295 Or 267, 267, 666 P2d 1316 (1983) (rec-

ognizing that this court may rely on federal case law in interpreting provision of

Oregon law, not because we are bound to do so, but because we find that case law

persuasive). This court has often looked to relevant federal case law for its per-

suasive value in interpreting an Oregon statute when that statute was modeled

after a federal statute. See, e.g., Redmond Ready-Mix, Inc. v. Coats, 283 Or 101,

110, 582 P2d 1340 (1978) (when Oregon’s Anti-Price Discrimination Law modeled

after federal acts, “federal cases interpreting the federal statutes are persuasive

to us in interpreting the Oregon statue”); Karsun v. Kelley, 258 Or 155, 161, 482

P2d 533 (1971) (when Oregon’s Blue Sky Law amended “to adopt substantially the

same terms as set forth in the Federal Security Act[,] * * * the legislative history

of that act, as well as decisions construing its provisions, are of significant inter-

est”). Indeed, this court has found federal law persuasive even when two compa-

rable statutes are not identical. See State v. Walker, 356 Or 4, 23 n 9, 333 P3d 316

(2014) (looking to federal RICO statute, upon which Oregon’s RICO statute was

modeled, even though Oregon provision had been “modified somewhat”; noting

that Oregon’s provision was “not * * * inconsistent” with federal one).

826 AFSCME Council 75 v. City of Lebanon

law in this case in an effort to discern the meaning that the

legislature intended to ascribe to the term “public employer

representative.”8

Federal courts interpreting the NLRA have often

been confronted with the question of which individual

agents’ conduct may be imputed to an employer for pur-

poses of unfair-labor-practice liability. As with a public

employer, an employer in the private sector is capable of act-

ing only through its individual officers and agents. See, e.g.,

Corporations, 18B Am Jur 2d § 1139 at 182 (2015) (“A cor-

poration can act only through the authorized acts of its cor-

porate directors, officers, and other employees and agents.”);

1 Corporations, 8 CJS § 7 at 314 (2007) (“A corporation can

only act through natural persons who are in charge of its

affairs.”). The NLRA takes that reality into account by defin-

ing an “employer” to include the individuals through whom

a company acts. As originally enacted, the NLRA defined an

“employer” to include “any person acting in the interest of an

employer, directly or indirectly.” National Labor Relations

Act, ch 372, § 2, 49 Stat 450 (1935). As we will discuss,

Congress later amended that definition to include “any per-

son acting as an agent of an employer, directly or indirectly.”

29 USC § 152(2) (emphasis added). Under either version,

however, federal courts have determined an employer’s lia-

bility for an individual agent’s unfair labor practice by con-

sidering the nature of the individual’s position within the

company and whether other employees would reasonably

8

The dissent acknowledges that the definition of “public employer repre-

sentative” leaves open “the possibility that others not specifically designated [in

the definition] may also be included” but argues that that definition “reflects an

obvious parallel to common-law principles of agency with which we presume the

legislature was familiar,” citing State v. Ramos, 358 Or 581, 368 P3d 446 (2016).

360 Or at ___ (Landau, J. dissenting). In Ramos, this court concluded that “rea-

sonable foreseeability” is a limiting concept that applies to an award of economic

damages under ORS 137.106, a statute requiring that a defendant pay restitution

equal to the full amount of a victim’s economic damages resulting from the defen-

dant’s crime. Id. at 596. Because the legislature “adopted the definition of “eco-

nomic damages” that applies in civil actions,” the court concluded, “it [is] likely

that the legislature intended to apply the traditional civil law concept of rea-

sonable foreseeability to determine whether claimed damages are ‘too remote,’

rather than intending that some other test of ‘remoteness’ apply.” Id. at 596-97.

We do not agree that the legislature—by using the term “representative”—has

clearly adopted common-law principles of agency when “representative” is not a

common-law concept. See also State v. Stark, 354 Or 1, 10, 307 P3d 418 (2013)

(court presumes legislature is aware of existing law).

Cite as 360 Or 809 (2017) 827

perceive that individual to have been authorized to speak

for the employer.

With regard to the conduct of individuals at the

highest levels of authority, federal courts generally have

assumed, without explicit analysis, that an employer may

be held responsible. In particular, federal courts have held

that an employer is responsible for the conduct of its execu-

tive officers—i.e., officers who have the authority to deter-

mine the company’s general business and labor policies.

E. H. Schopflocher, Annotation, Unfair Labor Practice,

within National Labor Relations Act or Similar State

Statute, Predicated upon Statements or Acts by Employees

Not Expressly Authorized by Employer, 146 ALR 1062

(1943). Indeed, courts have treated the proposition that an

executive officer may bind the company as so obvious as to

not warrant discussion. See, e.g., Morgan Precision Parts v.

NLRB, 444 F2d 1210, 1215 (5th Cir 1971) (company respon-

sible for company owner’s anti-union activity); Madison

Brass Works, Inc. v. NLRB, 381 F2d 854, 857 (7th Cir 1967)

(company president’s remarks threatening economic repri-

sal if employees unionized constituted unfair labor prac-

tice); NLRB v. John & Ollier Engraving Co., 123 F2d 589,

593 (7th Cir 1941) (employer responsible for unfair labor

practices of “executive officers”); NLRB v. Lightner Pub.

Corp. of Illinois, 113 F2d 621, 625 (7th Cir 1940) (holding

corporate employer liable for unfair labor practice commit-

ted by corporation’s president where president wrote letters

to men on strike indicating that he would not negotiate

with representatives of employees); NLRB v. Ed. Friedrich,

Inc., 116 F2d 888, 890 (5th Cir 1940) (holding that, to estab-

lish company domination or support of unaffiliated union,

it was not necessary to prove express acts by stockholders

or executive officers of company—thereby implying that, as

matter of course, company was responsible for acts of those

persons).

The more challenging question for federal courts

has been whether an employer may be held responsible for

the actions of individuals who hold a position of authority

that is less than an executive officer but greater than a

rank-and-file employee. Such an employee generally occupies

828 AFSCME Council 75 v. City of Lebanon

some type of supervisory position, but is not entrusted with

the duty to determine the employer’s general business and

labor policies. Shortly after the NLRA was enacted, the

United States Supreme Court addressed the question of

an employer’s responsibility for the unfair labor practices

of such individuals in two cases: International Association

of Machinists, Tool and Die Makers Lodge No. 35 v. Labor

Board, 311 US 72, 61 S Ct 83, 85 L Ed 50 (1940), and H. J.

Heinz Co. v. NLRB, 311 US 514, 61 S Ct 320, 85 L Ed 309

(1941).

In International Association of Machinists, the

Court upheld a determination by the National Labor

Relations Board (NLRB) that an employer was responsible

for the organizational efforts of several low-level employees,

despite the fact that the employer had not expressly autho-

rized or ratified the employees’ actions. Rejecting the notion

that strict principles of agency law applied when determin-

ing employer responsibility under the NLRA, the Court con-

cluded that an employer could be held responsible for the

actions of its “so-called agents” even though those acts “were

not expressly authorized or might not be attributable to [the

employer] on strict application of the rules of respondeat

superior.” Id. at 80. The Court explained:

“We are dealing here not with private rights * * * nor with

technical concepts pertinent to an employer’s legal respon-

sibility to third persons for acts of his servants, but with

a clear legislative policy to free the collective bargaining

process from all taint of an employer’s compulsion, domina-

tion, or influence. The existence of that interference must

be determined by careful scrutiny of all the factors, often

subtle, which restrain the employees’ choice and for which

the employer may fairly be said to be responsible.”

Id. Ultimately, the Court announced the following rule for

determining when an employer “may fairly be said to be

responsible” for an agent’s unfair labor practice: “[W]here

the employees would have just cause to believe that [the

agents] were acting for and on behalf of the management,

the Board would be justified in concluding that they did not

have the complete and unhampered freedom of choice which

the Act contemplates.” Id.

Cite as 360 Or 809 (2017) 829

In Heinz, the Court addressed a similar claim by an

employer that it could not be held responsible for the unfair

labor practices of several supervisors, because the employer

had not authorized or ratified those employees’ conduct.

Again, the Court held that the supervisors’ conduct was

chargeable to the employer, reiterating that the question of

employer liability under the NLRA did not hinge on strict

principles of agency or respondeat superior:

“The question is not one of legal liability of the employer in

damages or for penalties on principles of agency or respon-

deat superior, but only whether the Act condemns such

activities as unfair labor practices so far as the employer

may gain from them any advantage in the bargaining pro-

cess of a kind which the Act proscribes.”

311 US at 521.

After the Supreme Court decided International

Association of Machinists and Heinz, Congress enacted the

Labor Management Relations Act of 1947, also known as the

Taft-Hartley Act. Labor Management Relation Act of 1647,

ch 120, 61 stat 136 (1947). That Act amended various provi-

sions of the NLRA, including the definition of an “employer.”

The Taft-Hartley amendments changed the definition to its

current text: “any person acting as an agent of an employer,

directly or indirectly.” 29 USC § 152(2). Despite the narrow-

ing of the definition of an employer from any “person” acting

in the interest of an employer to any person acting as an

“agent” of an employer, however, federal courts have repeat-

edly affirmed the liberal principles of employer responsi-

bility originally announced in International Association

of Machinists and Heinz. See, e.g., Ingress-Plastene, Inc. v.

NLRB, 430 F2d 542, 545 n 3 (7th Cir 1970) (whether per-

son who committed unfair labor practice was supervisor “is

irrelevant so long as she gave the appearance of acting on

behalf of management;” citing International Association of

Machinists); Amalgamated Clothing Workers of America,

AFL-CIO v. NLRB, 371 F2d 740, 744 (DC Cir 1966) (employer

responsibility under NLRA “is not controlled by refinements

of the law of agency”); NLRB v. Houston Chronicle Pub. Co.,

300 F2d 273, 280 (5th Cir 1962) (because supervisor was

in position to give his subordinates cause to believe that he

830 AFSCME Council 75 v. City of Lebanon

was acting for management, his unfair labor practice was

attributable to employer; citing International Association of

Machinists and Heinz); NLRB v. Hart Cotton Mills, 190 F2d

964, 974 (4th Cir 1951) (employer responsibility for acts of

supervisory employees “is not determined by applying prin-

ciples of agency or respondeat superior but by ascertaining

whether the conduct or activity is condemned by the Act;”

citing Heinz).9

Thus, even after the Taft-Hartley amendments, fed-

eral courts have continued to determine employer responsi-

bility for unauthorized actions of an individual by analyzing

whether employees would reasonably believe that the indi-

vidual was acting for and on behalf of the employer. See,

e.g., American Door Co., Inc., 181 NLRB 37, 43 (1970) (cru-

cial question in determining whether employer is respon-

sible for acts of “so called agents” is whether, considering

all circumstances, “the employees could reasonably believe

that [the purported agent] was reflecting company policy,

and speaking and acting for management”) (citing NLRB

v. Des Moines Food, Inc., 296 F2d 285, 287 (8th Cir 1961));

Irving Air Chute Co. v. NLRB, 350 F2d 176, 179 (2d Cir

1965) (broad rule under NLRA places responsibility on

employer for acts of supervisor when employees “would have

just cause to believe” that supervisor was acting for and on

behalf of company); NLRB v. Geigy Co., 211 F2d 553, 557

(9th Cir 1954) (whether statements of foreman were attrib-

utable to employer depended on whether employees “might

reasonably have believed” that, in making them, foreman

was acting for and on behalf of management).

In applying that “reasonable belief” standard, fed-

eral courts have considered “all factors, often subtle, which

9

That is so despite legislative history indicating an intent for the new defi-

nition of employer to incorporate traditional agency principles. See, e.g., NLRB v.

International Longshoremen’s and Warehousemen’s Union Local 10, 283 F2d 558,

563 (9th Cir 1960) (noting that “Senator Taft, the life-force behind the bill as

enacted, repeatedly remarked on the floor of the Senate that common law rules of

agency were to govern the question of who acted for whom for purposes of deter-

mining culpability under the Act”). Indeed, some federal decisions have applied

strict principles of agency law when determining employer liability under the

NLRA. For the reasons that we explain, however, we find those federal cases that

have applied the broader “reasonable belief” standard to be more consistent with

the statutory purpose of protecting employees’ labor rights and, therefore, more

persuasive.

Cite as 360 Or 809 (2017) 831

restrain the employees’ choice and for which the employer may

fairly be said to be responsible.” International Association of

Machinists, 311 US at 80. “It is unnecessary that all factors

be present in each case, for one or more may be sufficient to

authorize the inference [that the individual acted on behalf

of the employer.]” NLRB v. Pacific Gas & Electric Co., 118

F2d 780, 787-88 (9th Cir 1941). Among other factors, courts

have considered whether the individual acting on behalf of

the employer occupied a high-ranking position within the

company hierarchy, whether the individual’s responsibilities

put him or her in a position to be identified with management

in the eyes of employees, whether the individual set man-

agement policy, whether the individual was in a strategic

position to translate the policies and desires of management

to other employees, whether the individual had the power

to hire and fire employees, and whether the employer dis-

avowed the actions of the individual. See, e.g., International

Association of Machinists, 311 US at 80-81 (considering indi-

viduals’ position in factory hierarchy, their power to hire or

fire, and whether they exercised “general authority over the

employees and were in a strategic position to translate to

their subordinates the policies and desires of the manage-

ment”); Amalgamated Clothing Workers of America, 371 F2d

at 744 (considering employer’s “lack of disavowal” of individ-

ual’s actions); McKinnon Services, Inc., 174 NLRB 1141, 1144

(1969) (whether or not individual was technically considered

“supervisor” under NLRA, “her responsibilities put her in a

position to be identified with management in the eyes of the

employees and to translate to them the policies and desires

of management”).

Having summarized the relevant federal case law,

we now consider what guidance, if any, that case law pro-

vides in determining the limits of a public employer’s lia-

bility under PECBA for the unfair labor practices of its

“designated representative.” We note, initially, that the two

statutes define an employer somewhat differently. That is

understandable, given that one statute defines an employer

in the public sector and the other defines an employer in

the private sector. Despite that difference, however, the

acts are otherwise remarkably similar. PECBA and the

NLRA are driven by the same policy of preventing employer

832 AFSCME Council 75 v. City of Lebanon

interference with employees’ organizational and bargain-

ing rights. Both statutes protect those rights by proscribing

unfair labor practices, and both statutes define an “unfair

labor practice” in virtually identical terms. Compare, e.g.,

ORS 243.672(1)(a) (unfair labor practice for public employer

or its designated representative to “[i]nterfere with, restrain

or coerce employees in or because of the exercise of rights

guaranteed in ORS 243.662”), with 29 USC § 158(a) (unfair

labor practice for employer to “interfere with, restrain, or

coerce employees in the exercise of the rights guaranteed

in section 157 of this title”). Further, in identifying an

employer’s responsibility for an unfair labor practice, both

statutes provide that an employer may be held liable for the

conduct of the formal entity constituting the “employer,” as

well as for the conduct of at least some individual agents who

act on that entity’s behalf. Given the statutes’ similarities

in both text and purpose, we conclude that the legislature

intended the provisions of PECBA at issue in this case to be

interpreted in line with the preexisting case law under the

NLRA. In addition, we conclude that the “reasonable belief”

standard that federal courts have adopted in interpreting

the NLRA is a well-reasoned one, and one that best effec-

tuates the legislature’s policy goal of protecting employees’

organizational rights from employer interference.

For those reasons, we adopt the “reasonable belief”

standard under PECBA for determining which individuals

constitute a “public employer representative,” such that a

public employer may be held responsible for the unfair labor

practices committed by such individuals. Specifically, when

employees of a public employer would reasonably believe that

a given individual acted on behalf of the public employer

in committing an unfair labor practice, that individual is

a “public employer representative” under ORS 243.650(21),

and the public employer may be held liable for the conduct of

that individual under ORS 243.672(1).

In applying the “reasonable belief” standard, adju-

dicators should consider “all factors, often subtle, which

restrain the employees’ choice and for which the employer may

fairly be said to be responsible.” International Association of

Machinists, 311 US at 80. One key factor will be whether

the individual acting on behalf of the public entity occupied

Cite as 360 Or 809 (2017) 833

a high-ranking position within the public entity. As the fed-

eral courts have recognized, the potential for interference

with employees’ labor rights is greatest at the highest lev-

els of authority. Moreover, the greater an individual’s gen-

eral policy-making authority, the more likely that employ-

ees would reasonably believe that that individual acted on

behalf of the entity. Other relevant factors include whether

the individual acted in his or her official capacity when he or

she committed the unfair labor practice, whether the indi-

vidual had the power to hire and fire employees of the public

entity, and whether the public entity disavowed the actions

of the individual. One or more of those factors may be suf-

ficient to authorize the inference that the individual acted

on behalf of the public entity and that the entity is therefore

liable for the individual’s actions. Pacific Gas & Electric Co.,

118 F2d at 787-88.

In adopting the “reasonable belief” standard, we

reject the argument of the city and dissent that the state-

ments of an individual city councilor cannot be imputed to

the city. They argue, however, that an action by a city council

member without the concurrence of a majority of the council

has no legal effect and that, therefore, the city cannot be

liable for the unfair labor practices of an individual coun-

cil member. The dissent argues that the acts of individuals

generally do not bind public entities. 360 Or at ___ (Landau,

J., dissenting). However, this case does not involve the scope

of municipal liability under general principles of tort and

contract law. Rather, this case involves the scope of liability

for a public employer for unfair labor practices under the

specific statutory framework of PECBA.

Moreover, under the view of the city and dissent,

voting members of a public employer would be allowed to

violate PECBA with impunity. Indeed, multiple members of

a voting body could interfere with protected union activity

as long as less than a majority of the body acted. That cir-

cumstance would contravene the legislature’s express dec-

laration that “[t]he people of this state have a fundamental

interest in the development of harmonious and cooperative

relationships between government and its employees.” ORS

243.656(1). It would also be at odds with the legislative rec-

ognition that public employees “have the right to form, join

834 AFSCME Council 75 v. City of Lebanon

and participate in the activities of labor organizations of

their own choosing,” as stated in ORS 243.662. Indeed, the

city’s narrow interpretation—which would require a major-

ity of the council to commit a violation—does not capture

the many ways in which voting members of the council, act-

ing on behalf of the city, might “[i]nterfere with, restrain or

coerce employees in or because of the exercise of rights guar-

anteed” in PECBA. ORS 243.672(1). Such an interpretation

would therefore undermine the legislature’s intention that

PECBA broadly protect public employees’ rights against

employer interference.10

We now apply the rule that we announce today to

the facts of this case. The ERB did not address whether

Campbell was a “designated representative” of the city within

the meaning of ORS 243.672(1), such that the city neverthe-

less may be held liable for her conduct. We therefore remand

to ERB to make that determination in the first instance.

ORS 183.482(8). On remand, ERB must determine whether

city employees would reasonably believe that Campbell was

acting on behalf of the city when she wrote her letter urg-

ing city employees to decertify the union. In making that

determination, ERB should consider all relevant factors,

including, but not limited to, whether Campbell occupied

a high-ranking position within the city, whether Campbell

10

Relatedly, the dissent argues that NLRA decisions imposing liability on

private employers for the acts of executive or management personnel have no

application to the Lebanon City Council because employees in the private sec-

tor have individual authority to act and city council members do not. 360 Or

___ (Landau, J., dissenting). We agree that the comparison of a public body to

executive officers in a private company is not a perfect fit. However, as we have

discussed, the provisions of PECBA evidence an intention by the legislature that

public employees in Oregon receive the same benefits and protections that the

NLRA provide to employees in the private sector. We emphasize that the rule

we adopt today is not based solely on the authority of an individual member of

a public body to act. The rationale for the rule is based instead on whether the

conduct of an individual is such that an employer may gain an advantage from

an individual’s interference with union organizing or the collective bargaining

process. See NLRB v. Hart Cotton Mills, 190 F2d at 974 (employer responsibility

for acts of individuals “is not determined by applying principles of agency or

respondeat superior but by ascertaining whether the conduct is condemned by

the act,” citing Heinz). Thus, as we have explained, although the authority of

Campbell to act on behalf of the city may—in various ways—be considered as a

relevant factor in applying the “subjective belief” test, her individual authority

does not, as a matter of law, determine whether the city may be held liable for her

conduct.

Cite as 360 Or 809 (2017) 835

had general policy-making authority for the city, whether

Campbell had the authority to hire and fire city employees,

whether Campbell acted within her official capacity as a city

councilor when she made her statements, and whether the

city disavowed Campbell’s statements.

Because we conclude that Campbell may have been

a “designated representative” of the city, depending on

whether city employees would have reasonably believed that

she acted on behalf of the city in urging those employee to

decertify the union, we reverse the Court of Appeals deci-

sion that Campbell could not be a “designated representa-

tive” under PECBA.

The decision of the Court of Appeals is reversed.

The case is remanded to the Employment Relations Board

for further proceedings.

LANDAU, J.

The majority holds that the City of Lebanon may

have committed an unfair labor practice because a single

one of its City Council members, Margaret Campbell, wrote

a letter to the editor of a local newspaper expressing her

personal opinion about labor unions. The majority reaches

that conclusion despite the fact that Campbell wrote the let-

ter “as an individual and not a reflection of a majority of

the City Council, the City or [her] employer.” The majority

ignores the fact that she was not authorized to speak for the

city; that she was not designated as the city’s representa-

tive in collective bargaining negotiations; and that, in fact,

under the terms of the city charter, she had no independent

authority whatsoever.

The majority’s decision is wrong. It cannot be rec-

onciled with the terms of the statute that the city is sup-

posed to have violated. Nor can it be squared with settled

rules of statutory construction. It is justified, not by refer-

ence to what the governing statute actually says, but by the

majority’s views about the overriding policies of that statute,

informed by an extended analysis of case law construing a

federal statute that does not even apply here. Because I can-

not join in that decision, I must respectfully dissent.

836 AFSCME Council 75 v. City of Lebanon

The Public Employees Collective Bargaining Act

(PECBA) provides that it is an unfair labor practice for “a

public employer or its designated representative” to engage

in any of a prohibited list of actions. ORS 243.672(1). The

law thus provides that an unfair labor practice may be com-

mitted on the one hand by a government entity—“a public

employer”—and on the other hand by an individual—“its

designated representative.” The question in this case is

whether Campbell is a government entity or a person desig-

nated to represent a government entity.

She is neither. Certainly, Campbell is not a govern-

ment entity. She is a single member of the seven-member

governing body of the City of Lebanon. But in no reason-

able sense of the term can it be said that she is the City of

Lebanon, any more than it can be said that a single one of

the 90 members of the Oregon Legislative Assembly is the

State of Oregon. Moreover, no party claims that she is the

city’s “designated representative.” That should be the end of

the matter.

The majority nevertheless concludes that the City of

Lebanon may have committed an unfair labor practice based

on the unauthorized act of its individual council member.

The majority concludes that, in writing her letter, Campbell

acted as the city’s “designated representative.”

The majority arrives at that conclusion by reason-

ing that, although PECBA does not define the term “desig-

nated representative,” it does define a different term that

at least comes close—“public employer representative.” And

the statute defines that term as merely including one who

has been “specifically designated by the public employer to

act in its interests in all matters dealing with employee rep-

resentation” and related matters. ORS 243.650(21). That,

says the majority, means that the term could include other

things as well. To determine what other things the term

could embrace, the majority turns to case law construing

the federal National Labor Relations Act (NLRA), which it

reads as holding that unfair labor practices may be commit-

ted by any person whom an employee “reasonably believes”

speaks on behalf of the employer, regardless of whether the

employer designated the individual to speak on its behalf or

Cite as 360 Or 809 (2017) 837

took any other action to clothe the individual with apparent

authority.

The majority’s reasoning does not withstand

scrutiny.

To begin with, it is at odds with the text of the stat-

ute. ORS 243.672(1) plainly provides that the only individ-

ual who may commit an unfair labor practice is a public

employer’s “designated representative.” Although the major-

ity refers to the ordinary meaning of the term “represen-

tative,” it curiously omits any reference to the term “desig-

nated.” In fact, it reads the word out of the statute entirely.

In the majority’s view, an individual may commit an unfair

labor practice if an employee reasonably believes the indi-

vidual speaks for the employer, regardless of whether the

employer designated the individual to act on its behalf.

Longstanding principles of statutory construction instruct

that, whenever possible, we are to give effect to all of a stat-

ute’s terms. See, e.g., State v. Cloutier, 351 Or 68, 98, 261

P3d 1234 (2011) (“[I]f possible, we give a statute with mul-

tiple parts a construction that will give effect to all of those

parts.”) (internal quotation marks omitted); Owens v. Maass,

323 Or 430, 437, 918 P2d 808 (1996) (“[W]henever possible,

this court must construe different provisions of a legislative

enactment so as to give effect to each provision.”) The major-

ity fails to explain why it is not possible to give effect to the

word “designated” as it is used in ORS 243.672(1).

The fact is that it is entirely possible to give effect

to all statutory terms in ORS 243.672(1). The term “des-

ignated representative” is not defined in the statute. We

generally assume that the legislature intended undefined

statutory phrases to be given their ordinary meaning. See,

e.g., OR-OSHA v. CBI Services, Inc., 356 Or 577, 589, 341

P3d 701 (2014) (“In the absence of evidence to the contrary,

we assume that the legislature intended words of common

usage to be given their ordinary meanings.”). The relevant

dictionary definition of the word “designate” plainly requires

some action by a designating party:

“4 a : to decide upon : nominate, delegate, appoint; esp : to

assign officially by executive or military authority <the

operating agency last designated by the president> <the

838 AFSCME Council 75 v. City of Lebanon

tanks had been designated to exploit a breakthrough of the

enemy’s defenses —R. D. Gardner> b : to induct in a rank

or position <the supreme council is designated as the high-

est organ of state power> <the duke had been designated

as king of a puppet state> c : to choose and set apart (as by

public will or in the process of government administration)

<a successful designating petition places the name of the

candidate on the primary ballot —Bk. Of Civic Definitions>

<control dams designated for construction> <finally Queen

Victoria was ask to ~ a site —B. K. Sandwell>

“* * * * *

“syn name, nominate, elect, appoint: designate may

apply to choosing or detailing a person or group for a certain

post by a person or group having power or right to choose

<the following deputies were designated by the three min-

isters to carry on the council’s work —Americana Annual>

<the vice-chairman is elected from among the commission-

ers, and the president designates the chairman —Current

Biog.>.”

Webster’s Third New Int’l Dictionary 612 (unabridged ed

2002).

Thus, as enacted by the legislature, ORS 243.672(1)

provides that an unfair labor practice may be committed

either by a public employer or by a person that has been

named, nominated, elected, appointed, or assigned the posi-

tion of representative of the public employer. By its terms, it

covers no others.

To be sure, reading the statute as actually writ-

ten gives it a narrower scope than the majority appears to

desire. It leaves out individuals who have not been desig-

nated as representatives of a public employer but who might

be perceived to be acting on behalf of a public employer. That

may well be the case. But our job is to take a statute as we

find it, not to rewrite it to conform with the policies that we

suppose the legislature may have had in mind, but did not

actually enact into law. Wyers v. American Medical Response

Northwest, Inc., 360 Or 211, 221, 377 P3d 570 (2016) (“We

are obligated to take a statute as we find it.”).

Even assuming for the sake of argument that we

may ignore the reference to a public employer’s “designated

Cite as 360 Or 809 (2017) 839

representative” in ORS 243.672(1) and substitute the broader

term “public employer representative” mentioned elsewhere

in PECBA, the majority’s reasoning still fails to conform to

well-established principles of statutory construction.

As the majority notes, ORS 243.650(21) provides

that the term “public employer representative” includes one

who is “specifically designated” to represent the employer.

The statute leaves open the possibility that others not specif-

ically designated may also be included. Its phrasing reflects

an obvious parallel to common-law principles of agency,

with which we presume the legislature was familiar. See,

e.g., State v. Ramos, 358 Or 581, 596, 368 P3d 446 (2016) (we

presume that the legislature is aware of existing common

law); Blachana, LLC v. Bureau of Labor and Industries, 354

Or 676, 691, 318 P3d 735 (2014) (same). And, when common-

law principles would otherwise apply, we do not assume

that the legislature intended to alter them unless there is

statutory text indicating such an intention. See, e.g., ODOT

v. Alderwoods (Oregon), Inc., 358 Or 501, 524, 366 P3d 316

(2015) (“Nothing in the statutory text suggests that, by pro-

viding such a procedure, the legislature intended to alter

the common law.”).

In this case, common-law principles of apparent

authority are well settled. There are essentially two cate-

gories of agents—those whose authority is actual and those

whose authority is “apparent.” See Taylor v. Ramsay-Gerding

Construction Co., 345 Or 403, 409, 196 P3d 532 (2008)

(“Generally speaking, an agent can bind a principal only

when that agent acts with actual or apparent authority.”).

ORS 243.650(21), in referring to those who are “specifically

designated” to act as the employer’s representative in collec-

tive bargaining and related matters, appears to capture the

former type of agent. That leaves only the latter type, those

whose authority is apparent, but not actual.

Under Oregon law, however, the liability of a prin-

cipal for the acts of one with apparent authority is pred-

icated on a showing that the principal engaged in some

affirmative conduct that created the appearance of author-

ity—that is, conduct that caused a third party reasonably

to believe that the principal had consented to have the

840 AFSCME Council 75 v. City of Lebanon

apparent agent act on the principal’s behalf. See, e.g., Eads

v. Borman, 351 Or 729, 736, 277 P3d 503 (2012) (apparent

authority “can be created only by some conduct of the prin-

cipal which, when reasonably interpreted, causes a third

party to believe that the principal consents to have the

apparent agent act for him on that matter”). An agent’s

actions, by themselves, are not sufficient. Taylor, 345 Or at

410 (“An agent’s actions, standing alone and without some

action by the principal, cannot create authority to bind the

principal.”).

In this case, it is undisputed that the city took no

action nor engaged in any conduct that created the appear-

ance that Campbell had authority to speak for it on collec-

tive bargaining and related matters. In other words, even

allowing for the majority’s substitution of “public employer

representative” for the statutory phrase “designated repre-

sentative,” there is no statutory basis for concluding that

Campbell was such a public employer representative in this

case.

In reaching its contrary conclusion, the majority dis-

penses with those general principles of agency law—in par-

ticular, the requirement that a principal take some action to

clothe an agent with apparent authority—without citing any

statutory wording that suggests the legislature intended to

do so. Rather, it relies on federal court decisions interpret-

ing the provisions of the NLRA setting out who may commit

an unfair labor practice under that federal law. Here, the

majority strays far from well-established principles of statu-

tory construction.

Generally, when the Oregon legislature borrows

statutory wording from another jurisdiction, we assume

that, in the process, the legislature also borrows existing

controlling case law interpreting that legislation. Jones v.

General Motors Corp., 325 Or 404, 418, 939 P2d 608 (1997)

(“If the Oregon legislature adopts a statute or rule from

another jurisdiction’s legislation, we assume that the Oregon

legislature also intended to adopt the construction of the leg-

islation that the highest court of the other jurisdiction had

rendered before adoption of the legislation in Oregon.”). But

it bears some emphasis that the critical prerequisite is that

Cite as 360 Or 809 (2017) 841

the Oregon legislature borrowed statutory wording from the

other jurisdiction. If the legislature, for example, borrows

only part of the text of an enactment from another jurisdic-

tion, then the rule applies only to the part of the text that

the legislature actually borrowed, and not to other parts of

the other jurisdiction’s law.

Taylor v. Baker, 279 Or 139, 566 P2d 884 (1977),

illustrates the point. At issue in that case was the proper

construction of Oregon’s summary judgment rule, some

of which had been patterned after Rule 56 of the Federal

Rules of Civil Procedure. One subsection of the federal

rule—Rule 56(d)—the legislature had not adopted. This

court concluded that it was obliged to give great weight to

“federal cases interpreting those aspects of Rule 56, other

than subsection (d) thereof, and decided prior to the enact-

ment of the state’s summary judgment statute.” Id. at 142

n 2 (emphasis added); see also Jones, 325 Or at 418 (same).

Thus, the court held that federal cases informed our inter-

pretation of the provisions borrowed from the federal law,

but not of the provisions that departed from the text of the

federal rule.

Here, the majority disregards that settled rule of

construction. The Oregon legislature may well have bor-

rowed parts of PECBA from the NLRA: specifically, the pro-

visions that define what constitutes an unfair labor prac-

tice. But it did not borrow every provision from the NLRA.

See Elvin v. OPEU, 313 Or 165, 175 n 7, 832 P2d 36 (1992)

(although similar in some respects, PECBA “is not identical

to the NLRA”). Significantly, it did not borrow the definition

of who may commit an unfair labor practice.

That comes as no surprise. The NLRA is a private

sector labor statute and prohibits a private “employer” from

engaging in any unfair labor practice. 29 USC § 158(a). As

defined by the NLRA, the term “includes any person act-

ing as an agent of an employer, directly or indirectly.” 29

USC § 152(2). It disclaims ordinary agency requirements

of express authorization or ratification. 29 USC § 152(13).

Moreover, it expressly excludes public employers, such as the

federal government, any state government, or any subdivi-

sion of state government. 29 USC § 152(2).

842 AFSCME Council 75 v. City of Lebanon

The Oregon legislature did not adopt those provi-

sions of the NLRA in enacting PECBA, a public sector labor

statute. In particular, in spelling out which individuals may

engage in an unfair labor practice, the Oregon legislature

rejected the phrasing of the NLRA that refers to “any per-

son acting as an agent of an employer, directly or indirectly”

and specified instead that such forbidden practices may only

be committed by a public employer’s “designated represen-

tative,” a term that nowhere appears in the federal law.

Moreover, the Oregon legislature declined to include the pro-

vision in the NLRA that disclaims the application of certain

ordinary principles of agency law. In consequence, there is

no textual connection between the state and federal statutes

that would provide the basis for concluding that preexisting

cases interpreting the federal law inform the meaning of the

state law.

The majority nevertheless resorts to federal case law

interpreting the NLRA for four reasons. None is availing.

First, the majority observes that, “[i]n many

respects, PECBA was patterned after the NLRA,” including

parallel statements of policy and definitions of what consti-

tutes an unfair labor practice. 360 Or at ___. That, however,

is not how the borrowed-statute canon works. The justifi-

cation for the canon is the idea that, the legislature having

borrowed statutory text from another jurisdiction, it is fair

to assume that the legislature was aware of controlling case

law construing that text. See, e.g., Lindell v. Kalugin, 353

Or 338, 355, 297 P3d 1266 (2013) (“As a general rule, when

the Oregon legislature borrows from a statute originating in

another jurisdiction, there is a presumption that the legisla-

ture borrowed controlling case law interpreting the statute

along with it.”). In that light, it makes no sense to say that,

because the Oregon legislature borrowed some text from a

federal statute, we may look to federal case law construing

provisions of the federal statute that the Oregon legislature

chose not to adopt.

Second, the majority observes that this court has

looked to federal case law interpreting the NLRA in a number

of previous PECBA cases. 360 Or at ___. True enough. But the

court did so only with respect to case law construing portions

Cite as 360 Or 809 (2017) 843

of the NLRA that the Oregon legislature actually adopted. In

Elvin, 313 Or at 165, for example, the court addressed whether

the provision of PECBA codified at ORS 243.676(2)(c) autho-

rized the Employment Relations Board to order refunds of

unlawfully collected fair share payments. The court looked

to federal NLRA cases construing “the provision from which

ORS 243.676(2)(c) is derived.” Id. at 178. Such cases are per-

fectly consistent with the borrowed-statute canon of construc-

tion. The majority’s opinion in this case is not.

Third, in a footnote, 360 Or at ___, the majority

insists that, in any event, there is the required textual con-

nection between PECBA and the NLRA in that both stat-

utes use the word “employer.” It is certainly true that both

state and federal statutes use the same word. But it is also

beside the point, which is that the state and federal laws

define that word differently. And it is precisely the defini-

tional differences that undercut any reliance on the federal

law to inform the meaning of PECBA.

Fourth, in the same footnote the majority offers

the alternative argument that, under this court’s opinion in

State v. Walker, 356 Or 4, 23 n 9, 333 P3d 316 (2014), tex-

tual differences between state and federal statutes are no

impediment to applying the borrowed-statute canon. With

respect, the majority reads too much into that decision. In

Walker, the court addressed the Oregon racketeering stat-

ute’s definition of the term “enterprise,” which was modeled

after the federal statute’s definition of the same term. The

court noted that the Oregon definition altered “somewhat”

the wording of the federal definition “to clarify the expansive

scope of the term and thereby avoid interpretative issues

that were arising in federal courts.” Id. The slight textual

differences, in other words, did not alter the substance of

the definition that the Oregon legislature borrowed from the

federal statute. The same cannot be said for the differences

between the ways that PECBA and the NLRA treat the

word “employer.” As I have pointed out, there are significant

differences between the ways that the state and federal law

define the term. The two definitions, in fact, are inconsis-

tent; among other things, the federal law expressly excludes

public employers while the state law applies only to public

employers. In short, there is simply no basis for looking to

844 AFSCME Council 75 v. City of Lebanon

federal case law construing the NLRA for guidance in inter-

preting the provisions of PECBA at issue in this case.

Even assuming for the sake of argument that it is

appropriate to substitute the phrase “public employer repre-

sentative” for the statutory term “designated representative”

and that it is appropriate to look to federal case law to inter-

pret that substituted phrase, the federal case law does not

provide support for the conclusion that the majority draws

from it. The majority relies on some broad statements in a

number of federal court opinions, which the majority reads as

dispensing with general principles of agency law in determin-

ing who has committed an unfair labor practice. The majori-

ty’s reading of the federal case law, however, is mistaken.

As originally enacted, the NLRA defined an

“employer” who could engage in an unfair labor practice to

include “any person acting in the interest of an employer,

directly or indirectly.” 49 Stat 450 (1935). The question arose

whether the law required express authorization or ratifica-

tion for an employer to be liable for the unfair labor practice

of an individual acting in its interest. The United States

Supreme Court answered that question in the negative

in International Ass’n of Machinists, Tool and Die Makers

Lodge No. 35 v. Labor Board, 311 US 72, 80, 61 S Ct 83, 85

L Ed 50 (1940), and H.J. Heinz Co. v. Labor Board, 311 US

514, 521, 61 S Ct 320, 85 L Ed 309 (1941).

In response to those decisions, in 1947 Congress

enacted amendments to the NLRA as part of what is known

as the Taft-Hartley Act. Among other things, the amend-

ments modified the definition of an “employer” to include “any

person acting as an agent of an employer, directly or indi-

rectly.” 29 USC § 152(2) (emphasis added). It also, as I have

noted earlier, specifically provided that, “[i]n determining

whether any person is acting as an ‘agent’ of another person

so as to make such other person responsible for his acts, the

question of whether the specific acts performed were actually

authorized or subsequently ratified shall not be controlling.”

29 USC § 152(13). The latter amendment essentially codified

the Supreme Court’s holdings in International Association of

Machinists and Heinz. Legislative history of the Taft-Hartley

act makes clear that, in providing that actual authorization

Cite as 360 Or 809 (2017) 845

or ratification is not required, Congress intended that ordi-

nary common-law agency principles otherwise do apply. See

generally Local 1814, Intern. Longshoremen’s Ass’n, AFL-CIO

v. NLRB, 735 F2d 1384, 1394 (DC Cir 1984) (“Beyond doubt,

the legislative intent of this provision was to make the ordi-

nary law of agency applicable to the attribution of individual

acts to both employers and unions.”); NLRB v. International

Longshoremen’s and Warehousemen’s Union, Local 10, 283

F2d 558, 563 (9th Cir 1960) (noting that “Senator Taft, the

life-force behind the bill as enacted, repeatedly remarked on

the floor of the Senate that common law rules of agency were

to govern the question of who acted for whom for purposes of

determining culpability under the Act”).

Since the enactment of the Taft-Hartley Act, the

National Labor Relations Board has consistently turned to

common-law agency principles in determining whether an

employer has engaged in an unfair labor practice based on

the actions of one of its employees. In fact, early decisions of

the NLRB relied on the Restatement of Agency in expressly

holding that apparent authority under the NLRA requires

“written or spoken words or any other conduct of the prin-

cipal” that causes a third person reasonably to believe that

the agent has authority to act for that principal. See, e.g.,

Nevada Tank & Casing Co., 144 NLRB 123, 129 (1963) (quot-

ing Restatement of Agency § 27). As the NLRB explained

more recently, “[a]pparent authority is created through a

manifestation by the principal to a third party that supplies

a reasonable basis for the latter to believe that the principal

has authorized the alleged agent to do the acts in question.”

Dentech Corp., 294 NLRB 924, 925 (1989).1

1

The NLRB’s reliance on common-law agency principles of apparent author-

ity is longstanding and continues down to the present. See, e.g., Pratt (Corrugated

Logistics), LLC, 360 NLRB No. 48 (2014) (labor relations consultant held out by

employer as conduit for transmitting information to and from management held

to be agent of employer); Int’l Union, Security, Police & Fire Prof’ls of America,

360 NLRB No 57 (2014) (union steward held to be union’s agent because he han-

dled grievances, represented employees in disciplinary meetings, and resolved

disputes without union president’s approval); Snelling Personnel Services, Inc.

Bill Mudd Electric Co., 37 NLRB AMR 2 (2002) (holding that “[u]nder the com-

mon law principles of agency and general and apparent authority,” agent acted for

employer); Sterling Faucet Co., 203 NLRB 1031, 1038 (1973) (agents had appar-

ent authority because they “were held out to the employees by the employer as

its agents”); Smith’s Transfer Corp. of Staunton, Va., 162 NLRB 143, 157 (1966)

(“[T]he respondent employer by acquiescing in, and encouraging, interrogation

846 AFSCME Council 75 v. City of Lebanon

Federal appeals courts have likewise looked to

common-law principles of agency—which require actions on

the part of the employer to clothe an employee with appar-

ent authority—in determining whether a person reasonably

could believe that an individual speaks for, or acts for, the

employer. See, e.g., NLRB v. Georgetown Dress Co., 537 F2d

1239, 1244 (4th Cir 1976) (“Whether an agency relation-

ship exists under the [NLRA] is to be determined under

the general common law of agency.”); NLRB v. Birmingham

Publishing Co., 262 F2d 2, 8 (5th Cir 1958) (employee speaks

for employer “[i]f an employee * * * is clothed with the appar-

ent authority to speak for the employer”).2

and polling of the men * * * clothed these employees in the eyes of their fellow

workers with the apparent authority to speak for the employer.”). I am not aware

of a single federal court decision holding that the board has erred in relying on

those principles.

2

The majority acknowledges that “some” courts so hold, but insists that oth-

ers apply a broader test that disregards that restriction of common-law agency.

The majority is mistaken about that. Nearly every federal circuit court has held

that the NLRA incorporates common-law principles of apparent authority. See,

e.g., Fleming Companies, Inc. v. NLRB, 349 F3d 968, 973 (7th Cir 2003) (“To

hold an employer liable, the individual who made the statement must act as an

agent of the employer. An agent has apparent authority when an employer takes

steps that would reasonably lead third persons to believe that the designated

employee was authorized to take certain actions on behalf of the employer.”

(Internal citations omitted)); Overnite Transp. Co. v. NLRB, 140 F3d 259, 266

(DC Cir 1998) (“Apparent authority exists when the principal engages in conduct

that, reasonably interpreted, causes the third person to believe that the princi-

pal consents to have the act done on his behalf by the person purporting to act for

him.” (Internal quotation marks omitted)); BE&K Const. Co. v. NLRB, 23 F3d

1459, 1466 (8th Cir 1994) (“Congress has set out the policy that the usual princi-

ples of agency apply in determining liability for unfair labor practices.”); NLRB

v. Int’l Union of Electrical, Radio & Machine Workers, AFL-CIO, Local 745, 759

F2d 533, 534 (6th Cir 1985) (“Agency may be found to exist on the basis of actual

authority, ratified authority or apparent authority. In this case the union clothed

the stewards with apparent authority.”); Laborers and Hod Carriers Local No.

341 v. NLRB, 564 F2d 834, 839 (9th Cir 1977) (“Common law agency principles

determination of this factual issue; therefore, implied or apparent authority is

sufficient.”); NLRB v. Local Union No. 3, Intern. Broth. of Elec. Workers, AFL-

CIO, 467 F2d 1158, 1159 (2d Cir 1972) (“Common law rules of agency govern;

authority may be implied or apparent, as well as express.”); United Steelworkers

of America v. CCI Corp., 395 F2d 529, 532 (10th Cir 1968) (Taft-Hartley Act “pro-

vided that the actual fact of authorization or subsequent ratification would not

be controlling of agency questions. This has been properly construed as opening

the way for application of general rules of agency and particularly the rules of

apparent authority.”); NLRB v. Mississippi Products, 213 F2d 670, 673 (5th Cir

1954) (“[S]ince respondent clothed [an individual] with apparent authority to

speak for it and did actually on one occasion use his voice to make an antiunion

speech, it may fairly said to be responsible for his conduct.” (Internal quotation

marks omitted.)).

Cite as 360 Or 809 (2017) 847

The cases on which the majority relies are not to

the contrary. The majority does invoke some broadly worded

phrases in several cases, which it takes to suggest that—

contrary to the wording and legislative history of the Taft-

Hartley Act and the weight of federal case law interpreting

it—common-law agency principles are no longer relevant.

Examined in proper context, however, those statements pro-

vide no support for the conclusion that the majority asserts.

For example, the majority cites NLRB v. Hart Cotton

Mills, 190 F2d 964, 974 (4th Cir 1951), for the proposition

that employer responsibility for acts of supervisory employ-

ees “is not determined by applying principles of agency or

respondeat superior.” 360 Or at ___. That case, however, was

about the significance of an employer’s lack of ratification of

certain anti-union statements that had been made by one of

its supervisors. The company argued that it was not respon-

sible for those statements because they were contrary to its

policy and had not been ratified by it. The court agreed with

the employer. It began by noting that, in Heinz, the Supreme

Court had concluded that express authority or ratification

were not required. Id. at 974. It then went on to conclude

that, nevertheless, “isolated statements by supervisors, con-

trary to the proven policy of the employer and neither autho-

rized, encouraged, nor acquiesced in by him, do not consti-

tute substantial evidence of” an unfair labor practice. Id.

The decision thus offers no support for the majority’s view

that ordinary principles of apparent agency are no longer

relevant.

For another example, the majority cites Amal-

gamated Clothing Workers of America, AFL-CIO v. NLRB,

371 F2d 740, 744 (1966), for the proposition that employer

responsibility for violations of the NLRA “is not controlled

by the refinements of the law of agency.” 360 Or at ___.

Again, however, the statement was made in refutation of an

argument that the employer had not expressly authorized

the actions or statements of certain individuals who had

made anti-union statements. The court rejected the argu-

ment, noting that the individuals were involved directly in

the company’s affairs, spoke with employees about man-

agement expectations and employee grievances, and made

hiring recommendations to the management. “In this

848 AFSCME Council 75 v. City of Lebanon

setting,” the court explained, “responsibility under the Act

is not controlled by refinements of the law of agency. The

[c]ompany’s silence may properly be taken by the Board as

recognition or ratification” of the actions of the individuals

at issue. 371 F2d at 744. The court said nothing about aban-

doning general principles of agency law that govern appar-

ent authority.

The majority also cites a number of decisions hold-

ing that certain executive officers and management person-

nel may be held to speak for their employers in determining

whether the employer committed an unfair labor practice.

360 Or at ___. Those decisions, however, are entirely con-

sistent with the common-law agency principles that I have

mentioned. Their rationale is that the companies for which

those persons worked had given the executive officers and

managers individual authority to set company business pol-

icies. See generally Unfair Labor Practice, within National

Labor Relations Act or Similar State Statute, Predicated upon

Statements or Acts by Employees Not Expressly Authorized

by Employer, 146 ALR 1062, § II (1943) (“[I]t is well estab-

lished that an employer is responsible for statements or acts

of those executive officers whose duty it is to determine his

general business policies, including his labor policy.”). That

only makes sense. When executive or management person-

nel have individual authority within a company to set com-

pany policies, an employee may reasonably believe that they

also have authority to speak for the company as to labor

matters.

For example, the majority cites Morgan Precision

Parts v. NLRB, 444 F2d 1210, 1215 (5th Cir 1971), a case

involving anti-union statements of the company’s owner.

Similarly, the majority relies on Madison Brass Works, Inc.

v. NLRB, 381 F2d 854, 857 (7th Cir 1967), and, NLRB v.

Lightner Pub. Corp. of Illinois, 113 F2d 621, 625 (7th Cir

1940), both of which involved a company’s president. And

it relies on NLRB v. Jahn & Ollier Engraving Co., 123 F2d

589, 593 (7th Cir 1941), which involved executive officers of

the company, as well as foremen whom the court found “did

exercise some authority over employees and were in a stra-

tegic position to translate to their subordinates the policies

and desires of the management.” Id.

Cite as 360 Or 809 (2017) 849

In this case, Campbell had no such individual

authority to speak for the City of Lebanon. She had no

authority to hire, fire, or discipline any city employee. She

had no authority to participate as a member of the city’s

labor negotiating team.

Certainly, Campbell was a member of the City

Council. In some cases, depending on the terms of the

statute or charter that defines the authority of a member

of a governing body, an individual member of a city coun-

cil may have certain day-to-day management authority.

See, e.g., Portland City Code, ch. 3.06.010 (management of

departments are assigned to individual members of the City

Council). And, in such cases, an employee might have good

reason to believe that such a council member speaks for the

city on labor matters.

But that is not the case here. Under the terms of the

Lebanon City Charter, Campbell had no individual author-

ity at all. The only authority she possessed was to vote as a

member of the council. Without a majority of the council con-

curring, her views had no force and effect at all, as a matter

of law.

Under the reasoning of the very federal cases on

which the majority relies, then, the conclusion should be

that no reasonable person could believe that Campbell spoke

for the city as to labor matters. The linchpin of those cases—

the individual authority of the executive or management

personnel—has no application to a multi-member governing

body like the Lebanon City Council.

In that regard, it is worth noting that the majority

has cited not one federal court or NLRB decision holding a

company liable under the NLRA based on the actions of a

single member of a multi-member body, such as a board of

directors. I submit that there is a reason for that: Because

individual members of such boards have no individual

authority, there is no basis for an employee to believe that

they speak for the company. Thus, even under the majority’s

test, the claim against the city in this case fails.

In short, the majority’s opinion is contrary to settled

law. It conjures a test not from the text of Oregon law, but

850 AFSCME Council 75 v. City of Lebanon

from a misreading of federal cases construing a provision of

the NLRA that the Oregon legislature chose not to adopt.

Moreover, the majority ignores the fact that, even under

its test, the unauthorized actions of a single member of a

multi-member governing body cannot amount to an unfair

labor practice.

At bottom, the majority’s decision is predicated on

its view that the legislation must be read “expansively” to

“broadly protect public employees’ rights.” 360 Or at ___.

With respect, such appeals to general policy provide no jus-

tification for avoiding the terms of the statute that the legis-

lature enacted into law. As this court cautioned in Halperin

v. Pitts, 352 Or 482, 496, 287 P3d 1069 (2012), “we simply

do not have authority to rewrite the terms of a statute to

accomplish what we may suspect the legislature intended

but did not actually enact into law.” In my view, the statute

should be interpreted and applied as written, without the

gloss borrowed from a mistaken understanding of case law

interpreting a portion of a federal statute that the Oregon

legislature never adopted.

Balmer, C.J. and Brewer, J., join in this dissenting

opinion.