dissenting.
ORS 243.676(l)(b) and (c) obligate the Employment Relations Board (ERB) to conduct a hearing on an unfair labor practice complaint if its investigation reveals that an “issue of fact or law exists.” ERB declined to hold a hearing in this case. The sole issue presented here is whether the complaint describes an issue of fact or law. If it does, ERB’s action was erroneous.
In Washington County Police Officers Association v. Washington County, 12 PECBR 693 (1991) (WCPOA I), ERB held that Washington County’s (the County) conduct during an investigatory meeting for a union member violated ORS 243.672(l)(a), which forbids apublic employer to “[interfere with, restrain or coerce employees in or because of the exercise of rights guaranteed in ORS 243.662.” I refer to ORS 243.672(l)(a) as the “coercion” statute. To remedy the County’s violation of the coercion statute, ERB entered the following remedial order, the text of which is critical to the outcome in this case:
*443“1. The County shall cease and desist from instructing [Washington County Police Officers Association (Association)] representatives to be silent during investigatory interviews of Association members and [from] limiting the role of the Association representative to that of an observer during such interviews.
“2. • The County shall cease and desist from interfering with employees’ representational rights in the Manual by relegating the employee representative to the role of an observer during any interview or meeting to which an employee’s right to representation attaches. The County shall modify its Manual within 14 days of this Order consistent with this Order.” 12 PECBR at 706-07.
ERB ordered the County to take two specific actions: (1) stop tellingAssociation representatives to be silent during investigatory interviews and stop limiting their role to that of an observer, and (2) stop interfering with employee rights under the County’s manual by relegating the Association’s representatives to the role of observer during interviews and “modify [the County’s] Manual within 14 days of the order consistent with this Order.” Id. at 707 (emphasis added). Only the latter remedial order is relevant to the discussion here.
The Association petitioned for, and ERB granted, reconsideration. Washington County Police Officers Association v. Washington County, 12 PECBR 693, on reconsideration, 12 PECBR 727 (1991) {WCPOA II). In WCPOA II, 12 PECBR at 731, ERB said that the PECBA did not grant union representatives the right to counsel employees during investigatory interviews and that, “[a]t this time, we believe issues of a greater or lesser role for union representatives in investigatory interviews are better left to the collective bargaining process.”
On February 1, 1992, the County promulgated a revised manual. In the revised manual, the County did satisfy the second remedial measure ordered by ERB in WCPOA I by deleting the language from its manual that, in ERB’s words, “relegat[ed] the employee representative to the role of an observer during any interview or meeting to which an employee’s right to representation attaches.” WCPOA I, 12 *444PECBR at 707 (text of remedial order No. 2).1 However, in revising its manual, the County went beyond the terms of ERB’s remedial order. In addition to deleting the language that required the Association representative to “only be an observer,” the County also struck language that expressly permitted the Association to engage in “the counseling of the employee.” The County also promulgated four procedural rules that purported to control the employee representative’s right of participation in an investigatory interview:
‘ ‘A) During the investigatory interview, the Association representative may:
“1. Inquire, at the outset of the interview, regarding its purpose, including inquiring about the general subject matter of the questioning to follow.
“2. During the questioning of the employee by the employer, participate only to the extent of seeking clarification of questions, but may not counsel the employee during questioning.
“3. After the employer has completed the questioning of the employee, ask the employee questions designed to clarify previous answers or to elicit further relevant information.
“4. Before the end of the meeting, suggest to the employer other witnesses to interview and may describe relevant practices, prior situations, or mitigating factors that could have some bearing on the employer’s deliberations concerning discipline.” Washington County Police Officers’ Association v. Washington County, 13 PECBR 627, 629 (1992) (WCPOA III).
The County promulgated those changes unilaterally, without good faith bargaining.
*445The Association filed an unfair labor practice complaint that alleged that, by promulgating those changes, the County violated the coercion statute, ORS 243.672(l)(a), and also the statute, ORS 243.672(l)(e), that requires good faith bargaining over an employer’s changes in matters of employment relations. The latter statute was not construed or applied in ERB’s WCPOA I or WCPOA II decisions. The Association argued that the County’s action violated the bargaining statute by deleting unilaterally the Association’s right under the manual to “counsel[] * * * the employee” and by imposing procedural limitations on Association representatives in interviews. The Association points out, correctly, that those changes were not ordered by ERB in its remedial order in WCPOA I. Moreover, the Association argues that WCPOA I and WCPOA II addressed the question of an appropriate remedy for a violation of the coercion statute, not whether changes to the manual that ERB ordered or that the County might unilaterally implement would violate the good faith bargaining duty or what the remedy for such a violation might be. ERB never decided in those cases whether the subject of representation rights in investigatory interviews is a mandatory subject of bargaining. ERB’s only reference to bargaining rights occurred in WCPOA II, in which ERB said:
“At this time, we believe issues of a greater or lesser role for union representatives in investigatory interviews are better leftto the collective bargaining process.” WCPOAII, 12 PECBR at 731 (emphasis added).
ERB dismissed both charges without a hearing. The principal dispute here concerns ERB’s dismissal without a hearing of the alleged bargaining violation.2 ERB expressed its reason for that dismissal in the following passage, which I quote in full:
“To the extent that the Association contends that the County violated ORS 243.672(1) (e) by unilaterally changing conditions of employment when revising the manual, we reject that contention. When revising the manual, the County did nothing more than comply with the minimum, legal requirements regarding employee rights to union representation in investigatory interviews, as set forth in *446[Washington County Police Officers Association v. Washington County, 12 PECBR 693, on reconsideration, 12 PECBR 727 (1991)]. In that case, we held that a prior edition of the manual infringed on employee rights and violated subsection (l)(a) and ordered the County to modify its manual.
“An employer has no obligation to bargain over changes made to meet minimum legal requirements. If we were to adopt the Association’s argument, we would have to hold that an employer’s modification of an unlawful practice would not be permitted, unless agreement were reached or the PECBA dispute resolution process was completed. Such a holding would require an employer to continue its unlawful conduct while bargaining was completed. We will not require employers to engage in unlawful conduct. If an employer were notified, or itself determined that it had violated minimum wage requirements, an employer would have to raise wages to the minimum wage and would not be obligated to bargain.” WCPOA III, 13 PECBR at 633-34 (emphasis added; footnote omitted).
The majority’s analysis of those eight quoted sentences is, in a word, strange. First, the majority, quoting the emphasized fourth and eighth sentences, 321 Or at 438, suggests that that language states one basis for ERB’s dismissal, i.e., that an “employer has no obligation to bargain over changes made to meet minimum legal requirements.” The majority rejects, as did the Court of Appeals, that reason as a basis for ERB’s dismissal. In rejecting that asserted rationale, the majority is correct.
The majority, however, says that ERB relied on a second reason for its dismissal, i.e., “its authority to order affirmative relief necessary to effectuate the purposes of the public employees’ collective bargaining law (PECBA).” 321 Or at 439. Those words do not appear in ERB’s order. To prove the existence of that alleged second reason, the majority quotes the other six sentences (the first through the third, and the fifth through the seventh) in ERB’s statement of its reason for dismissal. 321 Or at 439-40.
The majority’s attempt to discover a second reason for ERB’s decision fails. ERB’s purported explanation for dismissing the bargaining charge conveys only one reason: ERB believed that the County was entitled to unilaterally implement changes to meet what ERB labeled as “minimum *447legal requirements,” citing WCPOA II, and that requiring bargaining over such changes would compel an employer to continue unlawful conduct. ERB would have no basis to rely on the purported “second” reason stated by the majority, because ERB was concerned, mistakenly, with the County’s predicament that resulted from the County’s own unilateral conduct, not with ERB’s authority to order effective relief. That is the reason that ERB’s statement of its rationale does not cite the statute that authorizes ERB to order remedies, ORS 243.676(2), and makes no reference, in words, to any concern about ERB’s remedial power.
The majority jumps to the conclusion that ERB ruled as it did to protect “ERB’s authority — indeed duty — to order immediate affirmative relief.” 321 Or at 440. I have demonstrated already that ERB never reached any such conclusion. The majority simply refuses to recognize that it already has rejected, correctly, ERB’s only reason for dismissing the complaint.
The right to bargain, which ERB and the majority effectively evade, is of critical importance to the Association. In WCPOA I and WCPOA II, ERB did not decide whether the Association’s participation in investigatory interviews affected matters of employment relations and, thus, was subject to a mandatory bargaining duty. The Association asserts in this proceeding that that topic is mandatorily bargainable. It did not litigate that issue in the earlier contested cases.
If the Association is correct, it has a strong interest in bargaining for inclusion of agreements about that topic in its contract. ERB’s view that the County merely changed its manual to conform to minimum legal requirements is unresponsive to the Association’s point. If the changes to the manual concern a mandatorily bargainable subject, the Association has a right under ORS 243.672 (l)(e) to bargain about those minimum legal requirements and to require inclusion of any agreements about those matters in a contract. The County cannot evade its duty to bargain for a contract clause on a mandatory subject by unilaterally inserting wording on that subject in a County manual.
*448The majority suggests that this court’s task is to interpret ERB’s remedial order in WCPOA I to determine whether it left to the County the discretion how or when it would comply with ERB’s order or, instead, ordered the County to perform specific acts without granting discretion regarding compliance to the County. To no one’s surprise, the majority concludes that ERB’s order is of the latter kind. That is a foregone conclusion, because ERB never has issued a remedial order of the former kind.
In reaching its decision in this case, the majority’s reasoning is erroneous for several reasons. The remedial order in WCPOA I is unambiguous. Thus, neither ERB nor the majority, by “interpretation,” can read into that order a broader remedy than its clear terms describe. The dispute there concerned a phrase in the County’s manual that made the employee representative a mere “observer” during interviews. ERB found that that phrase constituted illegal coercion and ordered the County not to treat a representative as a mere observer and to modify the manual “consistent with this Order.” ERB’s remedial order in WCPOA I required deletion of the “observer” requirement, not the wholesale modification of investigatory interview procedures that the County unilaterally implemented.
However, the majority’s attempt to broaden ERB’s remedial order by a process of construction is not the main problem with its logic. The majority says that it is compelled to interpret ERB’s order to discern whether it required a specific remedial act because, if it does, it “cannot, if it is to be effective, be subjected to an indeterminate delay by a party’s insistence that it be bargained over before implementation.” 321 Or at 440 (emphasis in original).
Several problems undermine that reasoning. First, it resurrects ERB’s notion that the County’s duty to comply with ERB’s order excuses it from fulfilling other statutory obligations, such as bargaining in good faith, that arise upon issuance of a demand to bargain. The majority opinion rejects that view, as did the Court of Appeals, and I agree, because the County’s difficulty is traceable to its own wrongdoing. If the County’s argument about inconsistent legal obligations is insufficient to justify nullifying compliance with the statutory bargaining obligation, so is the majority’s theory that *449postpones compliance with the bargaining obligation. The majority fails to explain its irreconcilable answers on those issues.
Second, the majority simply is wrong in assuming that the Association’s post-order demand for bargaining somehow will disrupt the effectiveness of ERB’s order and cause indeterminate delay. The timing of bargaining can be critical to the effective functioning of the bargaining process. The question before ERB was whether the County had a bargaining obligation when the Association demanded bargaining and violated it by unilaterally implementing numerous changes in the manual. The bargaining demand has no legal effect on ERB’s order or the County’s obligation to comply with it. Certainly, the ERB order does not insulate the County from a bargaining obligation that arises before it complies with the order.
Third, even if ERB had expressly ordered the County to make the modifications that it unilaterally implemented, the Association is entitled to demand bargaining over those changes if they relate to a mandatory bargaining subject. ERB has yet to rule on the bargainability of those subjects. If the changes relate to a mandatory subject, the question whether the ERB order is a complete defense to the bargaining charge or merely affects the potential remedy is itself an issue that ERB must decide in a hearing and not reject summarily.
Instead of speculating that bargaining would lead to “an indeterminate delay” in implementation of ERB’s order, which is a prejudgment that is unfounded on this record, the majority and ERB should allow the parties to participate in the bargainingprocess in the way that they deem appropriate. That process could result in an agreement, perhaps before the compliance date set by ERB’s order, and there is no justification for the majority’s assumption to the contrary. Properly viewed, the coexistence of the ERB remedial order and the demand to bargain merely is a source of pressure on both labor and management that either side may exploit lawfully in order to achieve their objectives in the bargaining arena. The majority upsets the equilibrium of the bargaining process by canceling the County’s bargaining obligation and permitting the County to implement unilaterally the changes *450in its manual that it prefers as the new status quo. That result necessarily places a greater burden on the Association in its attempt to bargain for a different set of interview procedures in a contract.
The majority purports to mitigate the effect of affirming ERB’s order by stating in a footnote that either side can “bargain over any appropriate subject of bargaining at any time. We hold only that bargaining may not delay implementation of certain specific orders of ERB, such as the one at issue here.” 321 Or at 440 n 7. That statement cannot hide the fact that the ERB order here is typical of many ERB remedial orders and that the result adopted by the majority will prejudice the position of the party demanding bargaining, which is, typically, labor in virtually every similar case. The majority’s statement offers no solace to those employee organizations that must bargain for changes in management’s unilaterally implemented status quo.
Finally, the majority fails to justify ERB’s action in dismissing the complaint without a hearing. As discussed above, ERB never decided in WCPOA I whether the procedures applicable to investigatory interviews concern a mandatory bargaining subject. In WCPOA II, 12 PECBR at 731, ERB said that the role of the union representative in investigatory interviews is “better left to the collective bargaining process.” The Association’s complaint here raised that viable legal issue, as well as the question of what remedy ERB should order, if any, for the County’s refusal to bargain over its procedural changes. ERB was obligated to address those issues in a hearing.
If any portion of the change implemented by the County was not compelled by ERB’s remedial order in WCPOA I, ERB erred in dismissing the Association’s charge without a hearing. Neither ERB nor the majority explain how that order can be construed to require the County to delete unilaterally the Association’s affirmative right under the former manual to engage in “the counselling of the employee.” That error alone requires reversal of ERB’s dismissal order.
As the majority correctly observes, the County’s reliance on “minimum legal requirements” does not excuse *451the County from its bargaining obligations or “excuse ERB from enforcing them.” 321 Or at 439. As a result, the Association’s complaint raised an “issue of fact or law” within the meaning of ORS 243.676(1) that required ERB to hold a •hearing. ERB’s dismissal of the complaint without a hearing was error.
I respectfully dissent.
The original version of the manual, which was in effect when Washington County Police Officers Association v. Washington County, 12 PECBR 693 (1991) (WCPOAI), was decided, said, as material:
“The Union representative shall only attend any employee interviews as an observer and shall not participate in the interview unless expressly allowed to by the supervisor.
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“The selected representative is restricted to the counseling of the employee and shall not actively participate in the interview of the employee.” Id. at 699-700 (emphasis added).
I express no view regarding the correctness of the majority’s analysis concerning the dismissal of the charge under the coercion statute.