dissenting.
For the reasons stated by Judge Riggs in the Court of Appeals’ opinion in this case, Federation of Oregon Parole v. Dept. of Corrections, 132 Or App 406, 888 P2d 597 (1995) (.FOPPO ID, I would hold that the State of Oregon, acting through the Department of Corrections, did commit an unfair labor practice under ORS 243.672(l)(e).1
The state refused to bargain with the Federation of Oregon Parole and Probation Officers (FOPPO) over the impact of a prospective “intergovernmental agreement” on the terms and conditions of employment of correctional officers employed with the Department of Corrections. The state executed the agreement without bargaining.
The majority holds that the state did not violate ORS 243.672(l)(e) for several reasons. First, according to the majority, the transfer statute determines the employment rights of transferred employees and the transfer results from a statutory requirement, not from a genuine “agreement” between the state and Multnomah County. Second, the state did not initiate a unilateral change in employment conditions; Multnomah County initiated the transfer action. Third, the state’s agreement with FOPPO relieved the state of any further duty to bargain over its terms while it was in effect.
Those arguments are unconvincing. The transfer statute requires the transferee employer, here Multnomah County, to continue some aspects of the affected employees’ *225pre-transfer employment benefits in several areas, such as salary, sick leave accrual, vacation leave, and health benefits. ORS 236.610(2) and (3) (1993). Nothing in the transfer statute suggests that the transferee employer cannot agree to extend employment benefits beyond the minimum requirements set by the transfer statute. The legislature’s establishment of a statutory floor of employment benefits for transferred employees does not negate the right of the employees to bargain for protection against the impact of the transfer that is greater than the statutory floor.
The question of which public entity initiated the transfer action is beside the point. The majority ignores the fact that, under ORS 243.672(l)(e), when a public employer ceases to perform bargaining unit work, the decision to do so and the impact of that decision are subject to a separate duty-to-bargain analysis. See FOPPO v. Corrections Division, 7 PECBR 5649, 5654-55 (1983) (discussing rule in the context of subcontracting). Even if the decision to take that action is not subject to mandatory bargaining, the employer must bargain over the impacts of such an action if it affects employment relations. Id. As the majority admits, 322 Or at 218, that is the case here. The employees facing the transfer correctly anticipated that the transfer would negatively impact their salary, insurance benefits, and personal safety.
I now apply the separate analysis that the statute requires. The state has an interest in resisting bargaining over the decision to transfer its employees and their work to Multnomah County because that decision belongs to the county, not to the state. However, the state has no equivalent interest in refusing to bargain over the impacts of the transfer on employees’ working conditions. Those impacts were within the state’s power to control. Under ORS 423.550(2)(c), which incorporates ORS 236.610 to 236.650, transferred employees are entitled to protection against any reduction in their salary, health benefits, and other specified conditions of employment as a result of the transfer. Whether a reduction has occurred, in violation of that statute, is measured by what conditions of employment are in place at the time of the transfer. Thus, the employees could have protected themselves from some or all of the negative impacts of the potential transfer by bargaining with the state for those *226protections before the transfer occurred. The Court of Appeals correctly recognized that the state has no excuse for resisting bargaining over those impacts of the transfer on working conditions that were within the state’s power to control. Bargaining with the state could alleviate some or all of the employees’ concerns over their rights in the prospective transfer, whether or not bargaining would lead to any agreement with the state. Multnomah County’s role in initiating the transfer does not alter that fact and does not relieve the state of its duty to bargain.
The majority concludes that “ODOC lacked authority to determine the post-transfer terms and conditions of employment of the affected employees” because “ORS 423.550 governs the impact of a transfer decision on former ODOC employees” and that statute does not require an intergovernmental agreement to set out the terms and conditions of employment for transferred employees. 322 Or at 223. Those statements suffer from a serious lack of analysis. First, we must determine whether the state violated a duty to bargain at the time that it refused to bargain. Here, the refusal occurred before the transfer, yet the majority focuses only on the state’s inability to influence the conditions of employment of its employees after the transfer took place. The majority refuses to determine whether the state violated its bargaining duty at the only relevant time, i.e., before the transfer. Second, the absence of a reference to working conditions as an element of an intergovernmental agreement is meaningless in light of the clear terms of ORS 423.550(2)(c) that protect transferred employees from any reduction in specified working conditions as a result of the transfer. In other words, pre-transfer bargaining could protect the transferred employees’ working conditions regardless of the literal terms of the intergovernmental agreement.
An order to bargain would promote industrial peace in the face of a unilateral transfer to a new bargaining unit. The transfer threatened an imminent reduction in the working conditions of the affected employees; therefore, its impact on employees was a proper subject of mandatory bargaining. Accordingly, I would hold that the Employment Relations Board erred in its determination that the state did not violate ORS 243.672(l)(e). I agree with the Court of Appeals *227that the case should be remanded to the Employment Relations Board “to fashion a remedy.”
I respectfully dissent.
The pertinent portions of ORS 243.672(l)(e) are contained in the text of the majority opinion, 322 Or at 220.