Oregon Legislature argues Capitol staff unionization would be unconstitutional

By Dirk VanderHart (OPB)
Dec. 30, 2020 5:48 p.m.

Similar reasoning sunk an attempt by Delaware aides to unionize earlier this year.

Oregon Capitol staffers attempting to form a union encountered a potential roadblock on Tuesday.

Their employer says they’re not allowed.


In a formal document filed with the state, the Oregon Legislature raised a host of objections why the push for a first-of-its-kind union of legislative aides can not move forward as proposed.

The most sweeping argument: That such a move would be unconstitutional. Because the state’s Employment Relations Board, which certifies public-employee unions, is part of the executive branch, the Legislature says the board is barred by the separation of powers clause in the state Constitution to order lawmakers to recognize a union.

Related: Staffers for Oregon lawmakers have filed to form a union

“These subject employees work to perform legislative related functions and duties,” the objection said. “Any recognition of the bargaining unit by a branch of the government other than the Oregon Legislature would violate Article III, section 1 of the Oregon Constitution.”

That argument is similar to one raised by officials in Delaware after legislative staffers there attempted to unionize earlier this year. The legal reasoning proved potent enough to sink that effort.

It’s not clear what impact it will have in Oregon. The International Brotherhood of Electrical Workers Local 89, which Capitol staffers in Salem are hoping to join, told OPB earlier this month that it didn’t think such an argument would fly in Oregon.

“We looked at that case when the campaign started,” IBEW Local 89 organizer Tony Ruiz wrote in an email on Dec. 20. “We don’t believe the same argument could be made based on Oregon rules and so far no challenges have been made by the employer.”

But the Legislature is now raising the issue as a central reason why legislative aides cannot be recognized as a union.

“Nationwide, counsel for the Employer is unaware of any administrative or judicial branch rendering a constitutionally valid recognition of a bargaining unit within the legislative branch,” Oregon Department of Justice attorney Tessa Sugahara wrote in the state’s objection.

Oregon has grappled with the separation of powers in a unionization push before. In 1983, the Legislature passed a bill ensuring that the chief justice of the Oregon Supreme Court would have the authority to bargain with judicial branch employees. As part of its objections, the Legislature notes that no similar action has been taken for the Legislative branch.


The Legislature raises more issues, too. It says that many — and perhaps most — employees proposed to be included in the bargaining unit might be ineligible because they either possess, or are eligible to possess, management or confidential duties within lawmakers’ offices. And the Legislature argues that the constantly rotating cast of lawmakers and staffers in the Capitol makes the number of employees eligible to join a union hard to pin down.

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“By the end of December 2020, some of the employees included in the proposed unit who may have been employed at the time the petition was filed will have left employment at the Legislature due to a newly elected official replacing their member and that new member hiring personal staff of their choosing,” the document said.

Legislative officials are requesting a hearing before an administrative law judge to make their case.

The state’s top two lawmakers, House Speaker Tina Kotek and Senate President Peter Courtney, both limited their comments on the matter Tuesday, saying they could not comment on a pending case.

A woman in a blazer points to something not visible in the image, as a man stands next to her and looks.

House Speaker Tina Kotek motions to someone on the House floor on April 11, 2019. Officially, Kotek has kept quiet on efforts by Legislature staff to unionize.

Kaylee Domzalski / OPB

“I am very supportive of our Legislative employees,” Courtney, D-Salem, said in a statement. “They are the backbone of the Capitol.”

A spokesman for Kotek, D-Portland, said she “has a strong pro-labor record and greatly appreciates the work of all legislative staff, who are essential to the Legislature’s work.”

Staffers for both Kotek and Courtney pointed to a memo the pair sent jointly in mid-November, which urged lawmakers not to weigh in on the organizing attempt. “While every employee and certainly every member is entitled to their opinion on such an effort, it is important to recognize that employees have a right to discuss these matters,” the memo said in part.

Legislative staffers play an integral role in the Capitol, assisting lawmakers with daily tasks and handling constituent inquiries.

Oregon aides have discussed unionizing for years, but finally filed a petition to be recognized with the ERB earlier this month. Legislative employees who spoke with OPB said they were motivated in part by recent changes to pay and harassment policies, which they said showed a need for staff to have a seat at the table.

Related: Workplace dispute reveals major flaws in Oregon Capitol's harassment policy

According to IBEW 89, staffers for politicians in both parties signed a petition for the state to formally recognize their union. At least half of the proposed 110-person bargaining unit needed to sign for that petition to move forward.

The push comes as legislative staffers around the country have shown interest in unionizing. City Hall employees in New York City recently organized a union, and Delaware statehouse employees failed in their attempt earlier this year.

If Oregon aides succeed, they would be the first partisan staffers in a state Capitol to unionize.