In March 2024, the Deschutes County Sheriff’s Employees’ Association filed a representation petition with the Oregon Employment Relations Board by card check, seeking to certify a new bargaining unit of “all sergeants employed by the Deschutes County Sheriff’s Department.” The Deschutes County Sheriff’s Office filed timely objections to the petition on the basis that the sergeants were ‘supervisory employees’ under the Public Employee Collective Bargaining Act (PECBA), Oregon’s public employment labor statute.
For most public employers, PECBA enumerates 12 potential activities that could form the basis of a claim of supervisory status. However, just a few weeks after the petition was filed, the Oregon legislature amended PECBA to specifically exclude police sergeants from being considered supervisory, unless they have the authority to “hire, discharge or impose economic discipline” on subordinate employees that the sergeants assign, transfer, or direct. Still, the amended statute requires those sergeants to be in a different bargaining unit than “rank-and-file subordinate employees.”
In a hearing before the Board, the Sheriff’s Office contended that sergeants had the authority to issue one-day unpaid suspensions – meaning, economic discipline that would bring them within the statutory definition of supervisory. However, the Sheriff’s office relied almost entirely on “paper authority” demonstrating the sergeants’ authority to do so. Sheriff’s Office Policy 3.03 stated that sergeants “are authorized to impose a one-day suspension without pay.” But the evidentiary record did not contain “a single example of any sergeant ever issuing any economic discipline,” despite Policy 3.03 being in place for decades.
“Although most suspensions are issued to positions that sergeants directly oversee, suspension-level disciplinary actions have all been imposed by non-sergeants. Furthermore, there was no evidence that sergeants are involved in any decision-making process regarding what level of discipline should be imposed after an investigation is completed. Instead, that process is handled at a higher level by captains and the sheriff, without consultation of sergeants. Consistent with longstanding precedent, we find that the language in the Sheriff’s Office’s policy is, on its own, insufficient to vest actual authority in the sergeants to issue one-day suspensions.”
Even though sergeants conducted the initial fact-finding investigations into potential discipline, the record showed further that no sergeant had ever conducted or even attended a Loudermill hearing, nor participated in a meeting to determine the level of discipline to be recommended.
The Sheriff’s Office argued that the amended statute only required a showing that the sergeants were “authorized” to use those powers, rather than the actual exercise of those powers. The Board agreed that “that there may be justifiable and persuasive reasons why a true statutory supervisor may not yet have had the chance to exercise legitimate supervisory authority that they actually possess.” However, the Board continued, the total absence of evidence with respect to the exercise of that authority, as well as sergeant testimony as to their lack of actual authority, led to the same conclusion: that the sergeants did not, in fact, have that authority.
With that, the Board certified the Association as the exclusive representative of all sergeants of the Sheriff’s Office.
Deschutes County Sheriff’s Employees’ Association v. Deschutes County Sheriff’s Office, Case No. RC-009-24 (Or. ERB 2024).