concurring in part; dissenting in part.
The sole question presented by this case is whether ERB erred in dismissing Association’s unfair labor practice complaint pursuant to ORS 243.676(l)(b). That statute provides that when an unfair labor practice complaint is filed, *551ERB has an obligation to investigate the complaint to determine if a hearing is warranted. If the investigation reveals that there is no issue of fact or law, ERB may dismiss the complaint. ERB concluded that there was no issue of fact or law raised by this complaint and dismissed it. Association seeks review of that decision. The majority concludes that ERB was correct in its determination that there was not an issue of fact or law regarding the alleged violation of ORS 243.672(1)(a), but that the complaint did raise issues of fact and law regarding employer’s alleged violation of ORS 243.672(1)(e). I agree with the majority’s disposition of the alleged violation of ORS 243.672(l)(a). However, I do not agree that the complaint raised an issue of fact or law concerning the alleged violation of ORS 243.672(1)(e). Accordingly, I dissent.
ORS 243.672(l)(e) makes it an unfair labor practice to refuse to bargain collectively in good faith. In my view, there is no allegation regarding employer’s conduct here that raises a question of fact or law as to whether employer refused to bargain in good faith.
Here, ERB’s prior proceedings addressed the very issue that Association wants to bargain on; namely the role of the union representative in an investigatory interview. In the earlier proceedings before ERB, the Board concluded that employer had violated ORS 243.672(l)(a) by requiring the union representative to remain silent, by threatening to eject him if he did not comply with that directive and by “publishing its Manual with instructions that relegate the Association representative to the role of a silent observer in the investigation interviews.” It concluded:
“After weighing the rights of employers to investigate employee conduct and to maintain control of the workplace, the representation rights of employees, and the policy reasons for having pre-grievance union representation, this Board holds that the role of a union representative during interviews comprises the following:
“ 1. The representative may 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, the representative may participate only to the extent of seeking clarification of questions.
*552“3. After the employer has completed the questioning of the employee, the representative may ask the employee questions designed to clarify previous answers or to elicit further relevant information.
“4. Before the end of the meeting, the representative may 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.” (Footnotes omitted.)
On reconsideration, ERB further clarified the role of the union representative by discussing the meaning of “counseling.”
ERB’s decision in the earlier proceeding clearly resolved the issue presented and ordered employer to include specific language in its manual:
“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.”
With a minor change, employer adopted such language in its manual and that is the act that Association now challenges as an unfair labor practice. ERB explained its rationale for concluding that employer’s action was not a violation of ORS 243.672(1)(e). I agree with ERB’s reasoning:
“We also reject the Association’s contention that the County’s adoption of the manual violated ORS 243.672-(l)(e), although we are not certain what theory the Association is pursuing in this case. To the extent that the Association contends the employer violated ORS 243.672(l)(e) by breaching the employees’ right to representation during an investigatory interview, we reject this contention. This Board has never held that such a breach of employee representational rights would violate subsection (l)(e), and we know of no basis that would allow us to do so now. Such contentions regarding representational rights during representational hearings have been and will continue to be addressed under subsection (l)(a).
*553“To the extent that the Association contends that the County violated ORS 243.672(l)(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 Washington County. 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.”
The majority reasons that even though in modifying the manual as it did, employer was simply complying with its legal obligation to carry out the ERB order, there is an obligation to bargain here because bargaining would afford an opportunity for an exchange of ideas that could carry out the statutory policy of promoting the peaceful adjustment of disputes. While I would agree that the opportunity to communicate and avoid disputes is a laudable objective, I think that the majority loses sight of what happened here. Unlike the situation in Salem Police Employees Union v. City of Salem, 308 Or 383, 781 P2d 335 (1989), employer was not seeking to unilaterally implement a policy that had potential impacts on employment relations. The rights of the parties were litigated and defined in detail in the earlier proceeding. Employer’s adoption of the disputed provision in the manual was far from unilateral. Further, as employer points out, the Association does not allege that it failed to comply with its obligations under the collective bargaining agreement.
Under these circumstances, I do not think that employer had a further obligation to bargain. I agree with ERB’s determination that this complaint did not raise an issue of fact or law regarding a violation of ORS 243.672(l)(e) and I would uphold its dismissal of the complaint. For all of the above reasons, I respectfully dissent.