Portland police captains, commanders recently excluded from union support bill that would allow them back in

The Portland police commanding officers union is urging state lawmakers to reverse a state labor board ruling that excluded Portland police captains and commanders who serve as division managers from union membership.

House Bill 2978, written narrowly to affect about a dozen Portland police officers, would allow those higher-ranking officers back into the collective bargaining unit.

“This is Oregon. We are not Wisconsin. We do not engage in union busting for its own sake,” said Hank Kaplan, an attorney who has represented the Portland Police Commanding Officers’ Association for more than 25 years. “This is a state that’s built on the backs of labor.”

Kaplan told the House Committee on Business and Labor last week that the loss of collective bargaining rights could hamper the Portland police captains and commanders, who are tasked with adopting federally-mandated police training and policy reforms.

He said civil service board protections are not an adequate substitute for a union contract, and urged lawmakers to restore “what was a productive status quo for 24 years.”

But Portland city officials and a representative from the League of Oregon Cities last week urged legislatures to oppose the bill, cautioning that it represented an end-run around a ruling issued last year by the state Employment Relations Board.

“We’re very concerned about the precedential nature of this bill coming on the heels of an ERB decision,” said Scott Winkels, lobbyist for the League of Oregon Cities.

The matter has hinged on how the state defines “supervisory employees.”

Under current state law, a supervisory employee is any individual having authority “to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward or discipline other employees, or responsibly to direct them, or to adjust their grievances or effectively to recommend such action.”

The three-member state labor panel ruled last April that the Portland police commanders and captains who oversee a police division or precinct can hire non-sworn employees, assign and direct officers to different assignments within their units, use independent judgment in their jobs and, therefore, meet the state’s definition. Supervisory employees cannot be represented by a union, under state law governing public employees.

The state board ruling came after Mayor Charlie Hales asked for a clarification of whether members of the 44-member commanding officers union fit the state definition.

HB 2978, would exclude an officer employed by a city of more than 325,000 “who assigns, transfers or directs the work of other employees but does not have the authority to hire, discharge or impose economic discipline on those employees” from being considered a “supervisory employee” under state law.

Among the chief sponsors who introduced the bill is state Rep. Jeff Barker, a retired Portland police lieutenant and a former Portland police union president.

Portland police Detective Division Cmdr. George Burke told lawmakers last week that some police captains or commanders might be reluctant to make difficult decisions in highly evolving situations if they don’t have the protections of a union.

Winkels challenged Burke’s argument. “Portland is the only city that had this command staff arrangement – the same decisions are being made in Eugene, and in Tigard, and in Marion County, Washington County and in Gresham,” Winkels said. “Lieutenants, commanders, senior officers are making these decisions and doing it effectively.”

The city of Portland and the commanding officers’ union agreed that last year’s state labor board ruling, which would have allowed some captains to remain in the union and excluded other captains based on their assignments, was not workable. So they worked out an agreement that excluded all captains and commanders, yet retained certain wage, longevity pay and other benefits.

Martha Pellegrino, representing the city, told lawmakers last week that the Portland Police Commanding Officers Association and its attorney signed off on that agreement.

“There are discussions underway between the city and PPCOA relating to outstanding issues,” Pelligrino told lawmakers. “Allow us to achieve agreement locally.”

An amendment to HB 2978 that would drop the city population restriction would broaden the changes and could impact other Oregon law enforcement agencies.

Sergeants in Hillsboro, Washington county and Tualatin are going before the state labor board separately to petition to be recognized as members of collective bargaining units.

“Just because a police sergeant is a senior person on a shift, or they may be a senior patrol person, their duties are not sufficient enough to deprive them of collective bargaining rights that other police have,” said Dan Thenell, an attorney who represents the sergeants.

Though police sergeants from larger law enforcement agencies are part of unions, whether they can be represented by a collective bargaining unit depends on the roles they perform. That can differ substantially by agency.

In 2014, the legislature amended the supervisory employee definition as it relates to firefighters, adopting the same change now being sought by police sergeants in metro-area agencies.

As a result of the 2014 amendment, a fire battalion chief who “assigns, transfers or directs the work of other employees but does not have the authority to hire, discharge or impose economic discipline” is not considered a supervisory employee and can be represented by a union.

Michael Selvaggio, a lobbyist for the recently-formed Oregon Coalition of Police and Sheriffs, spoke in favor of the amendment. He said the state’s current definition of a supervisory employee is “overly broad” and unfairly bars many officers from enjoying the same rights as their counterparts do in larger agencies.

–Maxine Bernstein

503-221-8212; @maxoregonian