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The Oregon Court of Appeals on July 6 rejected a legal appeal by state Rep. Kim Wallan (R-Medford) and Wallan’s aide Sarah Daley that sought to block the formation of a union representing Oregon legislative staff.
Wallan and Daley took issue with a June 2021 ruling by the Oregon Employment Relations Board that greenlighted the formation of a union by the International Brotherhood of Electrical Workers Local 89. In that case, the state and legislative leaders had objected to the proposed union.
After the decision by the state Employment Relations Board, representatives of the roughly 200 staff and legislative leaders began negotiating a contract, a process that has proceeded episodically and continues.
Related: Union Representing Legislative Staff Increases Pressure for a Contract
In the meantime, Wallan and Daley appealed the ERB decision, arguing that it represented, according to a court summary, “a violation of the constitutionally required separation of powers and a failure to comply with the Public Employees Collective Bargaining Act.”
They argued, among other points, that the creation of a union could cause conflict between lawmakers and their staff that would not otherwise exist.
But rather than ruling on the merits of Wallan and Daley’s concerns, the appeals court determined they lacked standing because they were not parties in the case before the Employment Relations Board. In order to gain standing to appeal, the court determined, Oregon law requires Wallan and Daley to show they would be individually harmed by the formation of the union.
“Rep. Wallan does not identify any personal stake or how she will be legally affected by any perceived conflict of interest,” the court determined. “Furthermore, the circumstances she identifies are speculative and do not indicate any injury that she has suffered to a substantial interest as a result of ERB’s order certifying the bargaining unit.”
In a concurring opinion, Chief Judge Erin Lagesen noted that if Wallan and Daley’s concerns turn out to be legitimate, their argument could merit review.
“That ERB’s decision has not caused injury to petitioners yet does not mean that it will not,” Lagesen wrote.
The Freedom Foundation, an anti-union nonprofit that hired the attorneys representing Wallan and Daley, blasted the court’s decision, calling it “laughable.”
“The law surrounding the merits of this case is plainly in our favor, which is why the court had to use a new theory of standing—never before applied in Oregon law—to be able to rule against us,” said Jason Dudash, the Freedom Foundation’s Northwest director.
Dudash noted that the Oregon Department of Justice argued against formation of the legislative staff union in front of the Employment Relations Board in 2021 and then turned around and supported the union in recent arguments in front of the Oregon Court of Appeals. (Disclosure: Attorney General Ellen Rosenblum is married to the co-owner of WW’s parent company.)
“Let’s not forget, the constitutional arguments we are making were originally made by the attorney general herself,” Dudash says. “Now those same attorneys are fighting against the arguments they originally made.”
Roy Kaufmann, a spokesman for the the Department of Justice disagrees with that characterization. “In court we addressed only whether an individual legislator had authority to appeal ERB’s decision,” Kaufmann says. “The Court of Appeals ruled in our favor. We did not take any position that was inconsistent with what we previously argued before ERB.”