Freedom Foundation files lawsuit to block unionization of Oregon’s legislative staff

By Sam Stites (OPB)
Aug. 6, 2021 10:57 p.m.

Group argues that unionization of legislative staff is unconstitutional and at odds with state’s separation of powers law.

A lawsuit filed in Oregon Appellate Court is challenging the efforts of staff within Oregon’s Legislature to unionize.

A petition filed on Thursday by the Freedom Foundation — an Olympia-based group that combats public sector unions in Oregon, Washington and California other states — is seeking judicial review of the state Employment Relations Board’s (ERB) April ruling that cleared the way for legislative staff to vote to unionize in late May under the banner of the International Brotherhood of Electrical Workers Local 89.


That vote was certified by the ERB on June 8 with a collective bargaining unit consisting of legislative assistants. The petition also gives notice that the foundation intends to challenge the constitutionality of the vote in court.

According to court documents, the petition lists State Rep. Kim Wallan, R-Medford, and Sarah Wallan Daley — Wallan’s daughter and legislative director — as petitioners. It also lists both IBEW and the ERB as respondents.

Jason Dudash, Oregon director of the Freedom Foundation, said he believes the idea of a union is “fundamentally incompatible” with the work of the legislature.

“Unionizing legislative assistants will compromise the integrity of the legislative branch and erode trust by the people toward their elected lawmakers,” Dudash said in a statement Friday.

The group’s argument is that the bargaining unit representing legislative assistants is in conflict with the state law dividing power between Oregon’s three branches of government. Their argument also notes that the state’s Employee Collective Bargaining Act doesn’t define the legislature as a public employer.

According to Rebekah Millard, an attorney for the Freedom Foundation, unionization of legislative staff violates state separation of powers law by subjecting the legislative branch to the ERB, whose authority is derived from the Governor’s office.


Millard said in a statement that unionization “upends the concept of three co-equal branches of government” promised by Oregon’s constitution.

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

The Freedom Foundation’s argument is nearly identical to one made by the Oregon Legislature itself last December when it objected to unionization efforts organized by staffers.

The Oregon Department of Justice objected on behalf of the Legislature on the grounds that the bargaining unit would be unconstitutional but was unsuccessful in halting the effort.

The legislature also argued 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.

In its court filing Thursday, the foundation submitted declarations of support from both Wallan and Daley.

Wallan states that unionization would be a conflict of interest for her staff in situations where the union takes a position on a political issue or race when her office has a different position.

“Because I am charged with official duties as a member of the Legislative Branch, I am very careful and selective about those to whom I delegate duties, and I work hard to earn the loyalty and commitment of my staff.” she wrote. “Because of the nature of the job, it is essential that I am able to rely on the absolute loyalty of my Legislative Assistants, and that they understand and exercise confidentiality.”

Rep. Wallan was not immediately available for comment.

Legislative staffers supportive of unionization deferred comments to IBEW representatives, but one staffer confirmed that further legal challenges launched by anti-union groups were expected following the vote certification.

Tony Ruiz, IBEW Local 89 executive board member for Oregon, declined to comment on the lawsuit Friday afternoon.