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ORPELRA Oregon Public Employer Labor Relations Association Presentation and Luncheon May 22, 2013 By Jeffrey P. Chicoine, partner Miller Nash LLP http://www.millernash.com/jeffrey-p-chicoine

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‐i‐ I. REPRESENTATION & UNIT CLARIFICATION CASES.................................................................... 1 A. Card-Check Rules ................................................................................................................................ 1 1. AFSCME Council 75 v. Washington Cnty., No. CC-008-12, 25 PECBR 466 (Apr. 26, 2013) ....................................................................................................................... 1 2. Coalition of Graduate Emp ................................................................................................. 1 B. Public-Employee Status ...................................................................................................................... 1 3. Coalition of Graduate Emps., Local 6069, AFT v. Or. State Univ., NO. UC-04-12, 25 PECBR 356 (Jan. 4, 2013): ......................................................................... 1 C. Supervisory Status ................................................................................................................................ 2 4. IBEW Local 659 v. City of Myrtle Creek, No. CC-01-12, 24 PECBR 817 (June 13, 2012): ...................................................................................................................... 2 5. AFSCME v. State of Or., Dep't of Justice, No. CC-003-10, 24 PECBR 893 (June 21, 2012): ...................................................................................................................... 2 D. Police Units: Transfers and Redesignations ................................................................................... 2 6. Woodburn Police Ass'n. v. City of Woodburn, No. UC-014-11, 25 PECBR 1 (July 12, 2012): .................................................................................................................. 2 7. Josephine Cnty. v. Josephine Cnty. Sheriff's Ass'n, No. UC-01-12, 25 PECBR 189 (Oct. 31, 2012): ............................................................................................... 3 8. Jackson Cnty. v. Jackson Cnty. Sheriff's Emps.' Ass'n, No. UC-25-11, 25 PECBR 414 (Feb. 27, 2013): ............................................................................................... 4 9. FOPPO v. Clatsop Cnty. & AFSCME, No. RC-009-12, 25 PECBR 174 (Oct. 26, 2012): ...................................................................................................................... 4 10. Gresham Police Officers' Ass'n. v. City of Gresham & Teamsters Local 223, No. UC-06-12, 25 PECBR 303 (Dec. 28, 2012): ..................................................... 4 II. INTERFERENCE, DOMINATION & DISCRIMINATION ................................................................ 5 11. OSEA v. Baker Sch. Dist. 5J, No. UP-21-11, 24 PECBR 837 (June 13, 2012): ....................................................................................................................................... 5 12. Tigard Police Officers' Ass'n v. City of Tigard, No. UP-59-10, 24 PECBR 927 (June 25, 2012): .............................................................................................................. 5 13. AFSCME v. Crook Cnty. Road Dep't, No. UP-45-10, 25 PECBR 121 (Oct. 3, 2012) (appeal pending): .................................................................................................... 5 14. Eagle Point Educ. Ass'n v. Jackson Cnty. Sch. Dist. No. 9, No. UP-61-09, 24 PECBR 943 (June 25, 2012): ......................................................................................... 6 15. AFSCME Local 88 v. Multnomah Cnty., No. UP-22-10, 24 PECBR 978 (June 26, 2012): ...................................................................................................................... 6 16. AFSCME Local 2043 v. City of Lebanon, No. UP-14-11, 24 PECBR 996 (June 29, 2012): ...................................................................................................................... 6

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‐ii‐ 17. Milwaukie Police Emps. Ass'n v. City of Milwaukie, No. UP-52-11 25 PECBR 263 (Dec. 12, 2012): .............................................................................................. 6 18. ILWU v. Port of Portland, No. UP-35-10, 25 PECBR 285 (Dec. 19, 2012): ............. 7 19. ATU Local 757 v. TriMet, No. UP-39-10, 25 PECBR 325 (Dec. 28, 2012) (appeal pending): ................................................................................................................... 8 20. City of Portland Prof'l. Emps.' Ass'n. v. City of Portland, No. UP-27-10, 25 PECBR 55 (Sept. 5, 2012) (appeal pending): .................................................................... 8 III. UNILATERAL CHANGE .............................................................................................................................. 9 21.

• Assn. of Oregon Corrections Emp., v. State of Oregon, 353 Or 170 (Jan.

17, 2013), reversing and remanding 246 Or App 477 (2011): ....................................... 9 22. Three Rivers Ed. Ass'n. v. Three Rivers Sch. Dist., 254 Or App 570 (Jan. 16, 2013), reversing No. UP-016-08, 23 PECBR 638 (Mar. 29, 2010):....................... 9 23. Amalgamated Transit Union, Division 767 v. TriMet, 250 Or App 681 (June 27, 2012), affirming No. UP-62-05, 22 PECBR 911, ruling on reconsideration, 23 PECBR 34 (2009):.............................................................................. 9 24. ATU Local 757 v. Tri-Met, No. UP-39-10, 25 PECBR 325 (Dec. 28, 2012) (appeal pending): ................................................................................................................... 9 25. Milwaukie Police Emps. Ass'n. v. City of Milwaukie, No. UP-52-11, 25 PECBR 263 (Dec. 12, 2012): ............................................................................................ 10 26. AFSCME Local 189 v. City of Portland, No. P-046-08, 24 PECBR 1008 (June 29, 2012), order adhered to on reconsideration, 25 PECBR 85 (Sept. 17, 2012): .............................................................................................................................. 10 27. AFSCME v. City of Portland, No. UP-47-09, 25 PECBR 14 (July 13, 2012),

• rder adhered to on reconsideration, 25 PECBR 80 (Sept. 11, 2012): ......................

11 28. Jackson Cnty. Sheriff's Emps.' Ass'n v. Jackson Cnty. Sheriff's Dept, No. UP-23-11, 25 PECBR 449 (Apr. 11, 2013): .................................................................... 12 IV. REQUEST FOR INFORMATION ............................................................................................................. 12 29. ATU v. TriMet, No. UP-56-09, 25 PECBR 152 (Oct. 10, 2012): ............................... 12 V. REFUSAL TO BARGAIN / BAD-FAITH BARGAINING ................................................................. 13 30. OSEA v. Baker Sch. Dist. 5J, No. UP-21-11, 24 PECBR 837 (June 13, 2012): ..................................................................................................................................... 13 31. AFSCME v. State of Or., Dep't of Corrs., No. UP- 006/016-10, 24 PECBR 864 (June 19, 2012) (Rossiter, Gamson concurring; Logan recused) ......................... 13 32. Jackson Cnty. v. Jackson Cnty. Sheriff's Emps.' Ass'n, No. UP-24-11, 25 PECBR 209 (Nov. 5, 2012): .............................................................................................. 14 VI. BREACH OF CONTRACT .......................................................................................................................... 14

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‐iii‐ 33. PSU Association of University Professors v. PSU, 352 Or 697 (Nov. 29, 2012) (reversing court of appeals and affirming ERB, No. UP-36-05, 22 PECBR 302, ruling on reconsideration, 22 PECBR 503, and on motion to stay, 22 PECBR 619 (2008)): ............................................................................................. 14 34. AFSCME v. Crook Cnty. Road Dep't, No. UP-45-10, 25 PECBR 121 (Oct. 3, 2012) (appeal pending): .................................................................................................. 14 35. ATU Div. 757 v. Tri-Met, No. UP-42-10, 25 PECBR 385 (Jan. 15, 2013): .............. 15 36. Portland Police Ass'n. v. City of Portland, No. UP-25/26/27-11, 25 PECBR __ (May 3, 2013): ................................................................................................ 15 VII. TIMELINESS ................................................................................................................................................... 16 37. Rogue River Educ. Ass'n v. Rogue River Sch. Dist. 35, UP-17-08, 25 PECBR 230 (Nov. 13, 2012), order on remand from 244 Or App 181 (2011): ................................................................................................................................... 16 38. Seehawer v. AFSCME & Dep't of Corrs., No. FR-02-11, 25 PECBR 47 (Aug. 27, 2012): ................................................................................................................... 16 VIII. ENFORCING ARBITRATION AWARDS .............................................................................................. 17 39. Portland Police Ass'n v. City of Portland, No. UP-23-12, 25 PECBR 94 (Sept. 21, 2012) (appeal pending): .................................................................................... 17 40. State of Oregon, Dep't of Admin. Servs. v. SEIU Local 503, No. AR-002- 11, 25 PECBR 402 (Feb. 15, 2013): ................................................................................. 17 IX. MOTION TO STAY ....................................................................................................................................... 18 41. ATU Div. 757 v. Tri-Met, No. UP-39-10, 25 PECBR 431 (Mar. 14, 2013):............. 18 42. AFSCME Local 1329 v. Crook Cnty. Road Dep't, No. UP-45-10, 25 PECBR 435 (Mar. 22, 2013):............................................................................................. 18 X. INTEREST ARBITRATIONS ...................................................................................................................... 18 43. FOPPO and Multnomah Cnty., IA-05-11 (Whalen, Arb., May 11, 2012) (Employer): .......................................................................................................................... 18 44. ATU Local 757 and TriMet, No. IA-07-10 (Gaba, Arb., July 12, 2012) (employer): ........................................................................................................................... 19 45. IAFF Local 1432 v. City of Medford, No. IA-13-11 (Lankford, Arb. Aug. 20m 2012) (employer): ....................................................................................................... 19 46. City of Albany and Teamsters Local 223/Albany Police Ass'n, No. IA-11- 11 (deGrasse, Arb., Oct. 26, 2012) (employer): ............................................................. 19 47. City of Troutdale v. Troutdale Police Officers' Ass'n, No. IA-08-12 (Krebs, Arb., Jan. 16, 2013) (union): .............................................................................................. 19 48. Jackson Cnty. and Jackson Cnty. Sheriff's Ass'n, No. IA-02-12 (Axon, Arb.,

• Mar. 8, 2013) (employer):

................................................................................................... 19 XI. OTHER CASES ............................................................................................................................................... 20

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‐iv‐ 49. Ellins v. City of Sierra Madre, 710 F3d 1049 (9th Cir Mar. 22, 2013): ....................... 20 50. James v. Clackamas County, 353 Or 431 (Apr. 11, 2013), affirming 243 Or App 453 (2011): ................................................................................................................... 20

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I. REPRESENTATION & UNIT CLARIFICATION CASES A. Card-Check Rules 1. AFSCME Council 75 v. Washington Cnty., No. CC-008-12, 25 PECBR 466 (Apr. 26, 2013)

Union proposed unit consisting of 29 unrepresented appraisers in four classifications. ERB held that it was not an appropriate bargaining unit. ERB focused on other unrepresented employees, in same department, performing similar or related work and sharing same wage and benefit package and supervisors. In short, the petitioned-for group lacked a distinct community of interest from other unrepresented employees in the county.

2. Coalition of Graduate Emp. v Or. State Univ., No. CC-05-12, 25 PECBR 42 (Aug. 20, 2012) (dismissal order):

ERB rejected union request that card-check rules be applied to unit clarification petition seeking to add group of employees to existing unit. ERB held (a) that the card check rules apply only to a representation petition, (b) that the petitioning unit must have a 50 percent showing of majority of the entire proposed unit, the old unit and the group being added; and (c) that the union provided cards only from group to be added, which was not arithmetically sufficient to satisfy the 50 percent showing for the entire combined unit.

B. Public-Employee Status 3. Coalition of Graduate Emps., Local 6069, AFT v. Or. State Univ., NO. UC-04-12, 25 PECBR 356 (Jan. 4, 2013):

ERB held that graduate teaching and research assistants whose assistantship work is part of their graduate studies are public employees, overturning 1977 case and rejecting contrary NLRB authority. (Rossiter and Weyand in majority; Logan dissenting) Reasoning: The assistants get paid, perform work, and otherwise satisfy common-law concepts of employer-employee relationship as defined by Roberts' Dictionary of Industrial Relations and under right- to-control test.

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C. Supervisory Status 4. IBEW Local 659 v. City of Myrtle Creek, No. CC-01-12, 24 PECBR 817 (June 13, 2012):

ERB held that the clerical employees and public works employees shared a community of interest and belonged in a single bargaining unit. ERB focused on its "long-standing preference" for the "largest appropriate bargaining unit." 24 PECBR at 833. ERB also excluded two positions with tenuous claim to supervisory status, a finance officer and public works foreman, based on rarely used authority to issue reprimands and to assign and direct work of others. The parks foreman, however, was not a supervisor (while he had previously issued

• ne performance evaluation, he changed positions per direction of city administrator).

5. AFSCME v. State of Or., Dep't of Justice, No. CC-003-10, 24 PECBR 893 (June 21, 2012):

Under OAR 115-025-0005(3), ERB held that Assistant Attorneys-In-Charge ("AAICs") in five units

• f the Department of Justice were included in the bargaining unit under the terms of the original
• certification. ERB rejected the State's defense based on the past practice of excluding these

positions over several years, noting that such extrinsic evidence comes into play only when the contract terms are ambiguous. The certification included all attorneys below the attorney-in-charge position but excluded supervisors. Thus, the only issue was whether the AAICs were supervisors. But, AAIC exercised none of the 12 indicia of supervisors. Evaluations (unless used to determine pay raises, for discipline, or in discharge) and assignment of work to equalize workload are not an exercise of supervisory authority.

D. Police Units: Transfers and Redesignations 6. Woodburn Police Ass'n. v. City of Woodburn, No. UC-014-11, 25 PECBR 1 (July 12, 2012):

Code enforcement officers held more appropriately included in the police officers' unit, rather than general countywide unit. ERB considered statutory factors of community of interest and wages, hours, and other working

• conditions. But in such a petition to add strike-permitted employees to a strike-prohibited

bargaining unit, ERB also considered: (a) the percentage of strike-prohibited employees in the bargaining unit; (b) the relationship of the employees' duties to the mission of a law enforcement agency; (c) the uniqueness of the employees' positions; (d) the extent to which other employees with similar duties are organized; (e) the pattern of organization in the workforce; and (f) the history and stability of labor relations. ERB summarized the test: "When a petition involves a law enforcement agency, we focus on the degree to which the work of the petitioned-for employees is distinctive to the agency and whether

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the positions at issue are significantly involved and integrated with a law enforcement mission." 25 PECBR at 10. Specifically, ERB found that:  CEOs have no significant interchange, transfer, or promotion ladder with other AFSCME- represented employees in the general strike-permitted unit.  The wages and benefits packages are not dramatically different between the police and the AFSCME units.  CEOs and police share common supervisors, wear uniforms, and carry tasers and asps. CEO work equates to police work in terms of enforcing laws and interacting with public, and there is some limited interchange of duties (some traffic enforcement work).  With only 2 CEOs and 20 police, adding the CEOs to the police unit would not upset the balance between sworn and nonsworn personnel. ERB was not persuaded to keep CEOs in the strike-permitted countywide unit despite a history of 20 years with the AFSCME unit and even though the CEOs work day shifts, receive holidays off, and work in office with other AFSCME employees.

7. Josephine Cnty. v. Josephine Cnty. Sheriff's Ass'n, No. UC-01-12, 25 PECBR 189 (Oct. 31, 2012):

ERB dismissed an employer petition for redesignation of strike-permitted employees of sheriff's

• ffice into separate bargaining units represented by same union.

Petition for redesignation is filed under OAR 115-025-0000(1)(e), contending that an employee or employees should not be included in an existing unit under the criteria of ORS 243.682(1)(a). ERB has held that this language "requires us to find that employees have a clearly distinct community

• f interest to justify their redesignation out of the unit." ERB has applied the following six factors

as governing redesignation petitions, proposing to split bargaining units that contain both strike- prohibited and strike-permitted employees: "(1) all of the employes are organized with some common supervision and compensation patterns; (2) the community of interest among the employes is a stronger factor than the loss of the strike-permitted employes' right to strike; (3) fragmentation is avoided; (4) strike-prohibited employes constitute the larger percentage of persons in the unit; (5) the unit has historically been mixed; (6) regarding a consent unit, the employer shows a significant change in circumstances." 25 PECBR at 202 (internal quotation marks and citation omitted). ERB rejected the County's argument to apply the factors used in a labor organization petition to transfer employees under OAR 115-025-0005(6) from a mixed to a strike-prohibited unit (listed above in the Woodburn Police summary). ERB concluded that the factors for employer redesignation petitions should remain unchanged, noting:

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 Unit at issue already determined to be appropriate by employer consent or Board certification  No showing of interest is required  Redesignation is not subject to employee choice through an election  Employees will be removed from the unit of their choice–purely legal fiction

8. Jackson Cnty. v. Jackson Cnty. Sheriff's Emps.' Ass'n,

• No. UC-25-11, 25 PECBR 414 (Feb. 27, 2013):

ERB held that strike-permitted employees of the sheriff's office (records clerks and other administrative staff) are not to be excluded from the strike-prohibited unit. The test is whether the current unit is an appropriate bargaining unit. Thus, in this redesignation petition, the employer must show that the strike-permitted employees have interests that are clearly distinct from those of the strike-prohibited employees.

9. FOPPO v. Clatsop Cnty. & AFSCME, No. RC-009-12, 25 PECBR 174 (Oct. 26, 2012):

ERB carved out a separate unit for six parole and probation officers from an AFSCME-represented unit of strike-prohibited Sheriff Department employees. ERB focused on its practice of giving PPOs their own unit as a separate "craft" notwithstanding the County's opposition to undue fragmentation of its bargaining units. There appears to have been

• nly one nonsworn position within the existing unit and that the clerical and administrative staff of

the sheriff's office was represented in a county–wide department. Although ERB seemed not to focus on this fact, the County might have more effectively challenged this carve-out if all department employees were within one unit.

10. Gresham Police Officers' Ass'n. v. City of Gresham & Teamsters Local 223,

• No. UC-06-12, 25 PECBR 303 (Dec. 28, 2012):

ERB denied a petition to move 25 nonsworn employees of police department into the strike- permitted police unit. The police union filed this transfer petition under OAR 115-025-0005(6) with a sufficient showing

• f interest. The petition was dismissed with ERB concluding that the petitioned-for employees were

"not more appropriately placed in the [police] unit." 25 PECBR at 324. ERB applied the factors summarized above in Woodburn Police and considered the degree to which the work of the petitioned-for employees is distinctive to the agency and whether the positions at issue are significantly involved and integrated with a law enforcement mission.

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II. INTERFERENCE, DOMINATION & DISCRIMINATION 11. OSEA v. Baker Sch. Dist. 5J, No. UP-21-11, 24 PECBR 837 (June 13, 2012):

Union filed multiple charges related to allegedly misleading information provided by the school board at a school board meeting about an insurance proposal and challenged the district's implementation of its final offer. ERB dismissed the interference, domination, and bad-faith bargaining charges based on statements made at the school board meeting. Among other things, ERB noted that the statements were not deliberately misleading, were made in the context of budget reduction proposals still undergoing public review and discussion, and were not made about bargaining. ERB specifically disavowed an earlier test for "in the exercise" violations of ORS 243.672(1)(a), which required a showing that the statements" "inevitably have the effect of interfering with protected rights." 24 PECBR at 853 n.10.

12. Tigard Police Officers' Ass'n v. City of Tigard, No. UP-59-10, 24 PECBR 927 (June 25, 2012):

ERB held that the removal of an Association officer from a special assignment did not interfere with the exercise of PECBA-protected rights. There was no evidence of any causal link between the

• fficer's Association activity or other PECBA-protected right. ERB specifically rejected the

possibility that a response by the officer on an internal complaint form could not be the basis for such a claim because answering the form (protesting another reassignment) was not a PECBA- protected right, but the exercise of an individual act. (Note that filing a grievance over same issue would give rise to a different result.)

13. AFSCME v. Crook Cnty. Road Dep't, No. UP-45-10, 25 PECBR 121 (Oct. 3, 2012) (appeal pending):

ERB found employee discharged without just cause in a breach-of-contract case under ORS 243.672(1)(g), as summarized below. One reason for the employee's discharge involved her efforts to amend a safety committee report regarding another employee in her role as a union steward. ERB concluded that those actions were protected activity and that her involvement in making the amendments was legitimate and lawful. Therefore, it found that citing that involvement as a reason for discharge violated the "because of" prong of ORS 243.672(1)(a) and was anti-union discrimination under ORS 243.672(1)(c). ERB concluded that the conduct involving the safety report was egregious and ordered a $1,000 fine because it involved the exercise of protected rights.

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14. Eagle Point Educ. Ass'n v. Jackson Cnty. Sch. Dist. No. 9, No. UP-61-09, 24 PECBR 943 (June 25, 2012):

ERB held that the District had not interfered with the exercise of protected rights under the "in or because of" prong of ORS 243.672(1)(a) when unilaterally initiating the Collaborative System Initiative ("CSI"). The CSI was set up and functioned like any other district committee that involved administrators and staff. The CSI was not a labor organization dominated by the District under ORS 243.672(1)(b). ERB analyzed in great detail what constituted a labor organization and determined that the CSI was not.

15. AFSCME Local 88 v. Multnomah Cnty., No. UP-22-10, 24 PECBR 978 (June 26, 2012):

A supervisor who incorporated comments into his evaluation about the employee's role as union steward violated "in" and "because of" prongs of ORS 243.672(1)(a) and was discrimination under ORS 243.672(1)(c). The majority ruled that the standards for a discrimination charge, like a (1)(a) "because of" charge requires a showing that the employee exercised protected activity as an element

• f the case. Gamson, concurring, noted several older cases that do not have that requirement.

16. AFSCME Local 2043 v. City of Lebanon, No. UP-14-11, 24 PECBR 996 (June 29, 2012):

City councilor published letter in a local newspaper while the parties were bargaining that, among

• ther things, invited union members to seek out the Department of Labor to learn how to decertify

their union. ERB found that this statement "constitutes an attempt to impliedly coerce employees in their exercise of an important protected right―choosing whether to be represented by a union." 24 PECBR at 1003. A number of comments did not violate ORS 243.672(1)(a), including her criticism of union leaders, her "charge that the Union and the Teamsters have 'millions of dollars to support and pursue' actions against the City, and her accusation that 'unions have "dropped out" of the history and evolution of the American workplace.'" 24 PECBR at 1003. ERB concluded that her statements were not constitutionally protected individual statements, but those of a public employer. Yet there was no showing that she was authorized by the public employer to make such statements. ERB relied on the fact that as a council member she had "ultimate responsibility for formulating and implementing the county's labor relations policies." 24 PECBR at 1005.

17. Milwaukie Police Emps. Ass'n v. City of Milwaukie, No. UP-52-11 25 PECBR 263 (Dec. 12, 2012):

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ERB held that a police chief's announcement that the City would start following its policy of requiring members of the bargaining unit to take their meal and rest periods inside the City limits did not interfere with, restrain, or coerce employees in the exercise of their protected rights. During a grievance hearing, the chief learned of widespread disregard of a published City policy requiring staff to remain within City limits on meal and rest breaks and testified that he would probably have to do something about that. ERB held that neither the "in the exercise" nor the "because of" prong of ORS 243.672(1)(a) was violated. While possible that employees could be chilled by the chief's testimony, mere possibility is not enough to create an "in" prong violation. A violation occurs only when the chilling effect would be the natural and probable consequence of the employer's action or statement. ERB also concluded that the police chief was not enforcing the policy "because of" officers' testimony at the grievance arbitration hearing. ERB focused on whether the chief was motivated to act because of the employees' exercise of protected rights―in this case, their hearing testimony. ERB characterized the question as whether "the City acted because of a legitimate concern that was discovered during protected activity, or if it acted because of the protected activity itself. To answer this question, we focus on the strength of the causal link between the City's actions and the protected activities of the employees." 25 PECBR at 278. ERB concluded that several facts undercut a "causal link" between the exercise of protected activity and the decision to enforce the policy:  Chief had already taken steps to enforce the policy before the testimony of the union members.  Chief testified he had learned of the problem during the investigation and intended to correct situation in the future in the City's case-in-chief before hearing the officers' testimony.  Chief had a valid reason to enforce the policy, which was lack of coverage when officers were on break. ERB also ruled: "Consistent with this approach, we reject the idea that an employer cannot enforce a policy just because the non-compliance was discovered during the course of protected activity. Put another way, protected activity cannot become a shield against employer enforcement of otherwise lawful policies absent additional evidence that the enforcement is directly in response to the protected activity." 25 PECBR at 279.

18. ILWU v. Port of Portland, No. UP-35-10, 25 PECBR 285 (Dec. 19, 2012):

Representation rights: ERB held that the Port required an employee to attend a disciplinary meeting without union representation, in violation of ORS 243.672(1)(a). Employer called employee into a meeting after his refusing to sign a letter summarizing revised health restrictions. Although the employer argued that it was not an investigatory meeting that could lead to discipline (and hence no Weingarten rights applied), ERB concluded that the employee was reasonable given the circumstances to assume that the meeting could lead to discipline and so had a right to have union representation.

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Union communications: ERB held that the Port improperly disciplined a union leader for sending union-related communications, in violation of ORS 243.672(1)(a) and (b). The Port's discipline of union officer for sending e-mail about a fellow bargaining unit member was unlawful because the e-mail was part of a legitimate union communication with members. ERB noted how it had protected such communications in other cases notwithstanding employer policies about interoffice communications or acceptable use of agency e-mail and computer systems. The employer's discipline violated ORS 243.672(1)(a) "because of" prong, constituted a "derivative" violation of the "in" prong, and violated ORS 243.672(1)(b). ERB, following its practice, did not consider whether ORS 243.672(1)(c) was violated. No practice of disciplining union leaders: ERB also ruled that the Port had not discriminatorily disciplined union officers, leaders, or bargaining unit members between January and July 2010, in violation of ORS 243.672(1)(a), (b), or (c).

19. ATU Local 757 v. TriMet, No. UP-39-10, 25 PECBR 325 (Dec. 28, 2012) (appeal pending):

See discussion under unilateral change.

20. City of Portland Prof'l. Emps.' Ass'n. v. City of Portland, No. UP-27-10, 25 PECBR 55 (Sept. 5, 2012) (appeal pending):

The City's failure to provide paid leave to union witnesses in grievance arbitration did not violate the "in the exercise" prong of ORS 243.672(1)(a). (Rossiter and Logan; Weyand dissenting) The City applied its personnel policy that provided: "Any employee who must attend court or other legal proceedings arising from actions taken in the course of employment shall be considered 'at work' and shall receive regular wages." The City explained that it would "pay witnesses when: (1) the employee appears and testifies about actions the employee took in the course of his or her employment; or (2) when the City orders the employee to testify, in which case the employee's employment for that time is that appearance and testimony. City witnesses testified that the City does not pay employees it does not direct to testify who testify about matters the employee simply 'observed at his work' while in the course of his or her employment." 25 PECBR at 58. ERB reasoned: "All witnesses to City legal proceedings are treated in the same fashion―they receive pay for their testimony if, in the City's opinion, the proceeding arises 'from actions taken in the course of [the individual's] employment [with the City].' Under the City's policy, the amount of pay a witness receives does not depend on whether a witnesses' [sic] testimony is favorable to the employer or whether the witness is testifying in a legal action initiated by a union." 25 PECBR at 63 (emphasis omitted). ERB distinguished two earlier cases in which it held that the employer's refusal to pay union witnesses violated the "in the exercise" prong of ORS 243.672(1)(a). In one, the employer policy

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simply provided for payment whenever employees appeared in response to a subpoena. In the

• ther, the policy said that employer witnesses would be paid but not union witnesses.

III. UNILATERAL CHANGE 21.

• Assn. of Oregon Corrections Emp., v. State of Oregon, 353 Or 170

(Jan. 17, 2013), reversing and remanding 246 Or App 477 (2011):

In a unilateral change case, the Oregon Supreme Court applied the NLRB's clear and unmistakable waiver standard to determine whether there was a waiver of the statutory obligation to bargain, in this case work schedules. The court concluded that the agreement did not establish a clear and unmistakable waiver. The court of appeals had instead applied the contract interpretation principles. The court remanded to the court of appeals to consider a defense not considered, which is whether the union waived bargaining by failing to make a timely demand. 22.

Three Rivers Ed. Ass'n. v. Three Rivers Sch. Dist., 254 Or App 570 (Jan. 16, 2013), reversing No. UP-016-08, 23 PECBR 638 (Mar. 29, 2010):

ERB had ruled (1) the increase in teacher's student contact was not an impact of a change in the school schedule, and (2) therefore, the District was not obligated to bargain over impact of the change in the school schedule. ERB had reasoned that there was no causal link between the change in school schedules and the increase in contact time or workload. The calendar and the workload change were independent of each other. The court concluded that the ERB decision lacked substantial reasoning and remanded the case to ERB.

23. Amalgamated Transit Union, Division 767 v. TriMet, 250 Or App 681 (June 27, 2012), affirming No. UP-62-05, 22 PECBR 911, ruling on reconsideration, 23 PECBR 34 (2009):

ERB had rejected a unilateral change allegation when TriMet updated its customer service policy and

• procedures. The court affirmed ERB in finding that ATU had failed to carry its burden of

establishing what the status quo was and what was changed. ERB had also ordered TriMet to rescind a discipline that had already been subject to arbitration and reduced from a suspension to a written warning. ATU had argued that the discipline was based, in part, on an ATU report given to TriMet on the condition that it not be used to discipline any

• employee. ATU charged TriMet with breach of a written agreement under ORS 243.672(1)(g).

ERB agreed and as a remedy ordered the discipline rescinded. The court rejected TriMet's argument that this was a collateral attack on an arbitration award and that ERB was effectively reviewing the award.

24. ATU Local 757 v. Tri-Met, No. UP-39-10, 25 PECBR 325 (Dec. 28, 2012) (appeal pending):

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Unilateral change: TriMet did not commit a unilateral change violation when it declined to continue COLAs or by passing the premium increases on to the employees. TriMet's actions were consistent with the status quo obligations under ORS 243.756. The parties' agreement provided for COLAs every six months "during the term of the Agreement," and thus the obligation ended when the agreement expired. But as ERB noted, the agreement by its terms expired if either party gave "sixty days' notice of opening," which was done, and so the agreement terminated. 25 PECBR at 346. Interference: TriMet violated ORS 243.672(1)(a) by not paying COLAs and requiring employees to pick up the premium increases for medical coverage because it did so in response to the delay expected from ERB's filing an unfair-labor-practice complaint. Although TriMet was permitted to stop paying COLAs and not make additional premium payments under the PECBA, ERB concluded that TriMet had decided to take these steps because ATU had filed an unfair-labor- practice charge. ERB looked to the express statements of Director McFarlane that linked the filing and the ensuing delay with the decision to make the changes. ERB applied a "mixed motive" analysis because there were both lawful and unlawful reasons for the

• decision. ERB sought "to determine if TriMet would have stopped paying COLAs and health

insurance premium increases had ATU not filed the ULP." 25 PECBR at 341. ERB concluded that a statement that the decision "was related to the overall stalling" was a reference to delay caused by the ULP filing. Id. Direct dealing: When deciding to pass on premium increases to employees, TriMet offered employees a no-cost insurance option without first making the offer to the union. TriMet argued that it did not solicit input from employees and so was not bargaining directly with them. ERB concluded that by making this offer to employees without first going to the union with it, TriMet violated its duty to bargain in good faith.

25. Milwaukie Police Emps. Ass'n. v. City of Milwaukie, No. UP-52-11, 25 PECBR 263 (Dec. 12, 2012):

[also discussed above in interference section] ERB held that the City did not change the parties' past practice of allowing bargaining unit employees to take their meal and rest periods outside the City limits. ERB reasoned that the challenged policy involved on-duty personal conduct and was thus a permissive subject of bargaining. ERB emphasized that officers were paid for meal and rest periods and subject to call during their breaks and remained on duty.

26. AFSCME Local 189 v. City of Portland, No. P-046-08, 24 PECBR 1008 (June 29, 2012), order adhered to on reconsideration, 25 PECBR 85 (Sept. 17, 2012):

ERB held that the City did not unilaterally change the status quo when charging the union for information requested, but failed to provide information requested by the union in a timely manner.

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In 1975, ERB determined that charges for information requests was a permissive subject of bargaining, and under ORS 243.650(7)(b) remained permissive. Furthermore, ERB concluded that there was no mandatory effect to bargaining, since the financial impacts were on the union and not the individual employees. Thus, ERB reversed Lebanon Educ. Ass'n v. Lebanon Cmty. Sch. Dist.,

• No. UP-4-06, 22 PECBR 323, 360 (2008).

In applying this rule, ERB noted that "'[w]here the responding party incurs expenses in providing the information that it would not otherwise incur, it may ask for reimbursement of such reasonable costs after informing the requesting party of its intention to do so. If such reimbursement is refused, the party may decline to provide the data.'" 24 PECBR at 1033 (quoting OSEA v. Colton

• Sch. Dist. 53, No. C-124-81, 6 PECBR 5027, 5032 (1982)).

ERB did find that the City had unreasonably delayed before asking the union to clarify its requests, six weeks for one request and eight weeks for the other request. This case contains Member Gamson's now (in)famous last dissent in which he castigates his Board colleagues for having regularly excluded him from Board business over the prior four months.

27. AFSCME v. City of Portland, No. UP-47-09, 25 PECBR 14 (July 13, 2012),

• rder adhered to on reconsideration, 25 PECBR 80 (Sept. 11, 2012):

ERB held that the City made a unilateral change in mandatory subjects of bargaining by eliminating the I&R Unit and transferring its work to lower-paid bargaining unit employees because it did not bargain the effects of the transfer. (Rossiter and Logan, with Weyand recusing himself) An employer's decision to reorganize the structure in which its work is performed is a permissive subject of bargaining, and the employer has no bargaining obligation regarding that decision. It must, however, bargain about any impacts of that decision before making the change. The mandatory effects include layoffs and bumping rights and workload of remaining employees. ERB held that the City failed to bargain because it effectively implemented change two days after it started bargaining, although the workers were not transferred until 90 days later, and because it refused to bargain over workload of remaining employees. ERB concluded that the agreement did not permit the change, although management rights clause gave City sole discretion over managing its workforce except as limited by the layoff/recall provisions. Remedy: ERB declined to order reconstitution of the disbanded unit, noting that the decision to reorganize is a permissive subject and three years had passed. The City was ordered to return to interim bargaining to negotiate over the mandatory impacts. On reconsideration: ERB distinguished reorganizations, including the elimination of the entire department, which it finds to be permissive, from contracting out bargaining unit work, which it finds to be mandatory per AFSCME Local 189 v. City of Portland, No. UP-049-08, 24 PECBR 612 (Feb. 27, 2012). ERB declined to order back pay because no one lost his or her job and it would not

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set the rate for any changes in workload, which should be determined in negotiations. By contrast, in other cases in which an employer failed to bargain a change that was mandatory, ERB had

• rdered back pay to remedy job losses.

Requests for information: ERB also held that the City had not failed to timely respond to union requests for information. Two of the requests specified in the complaint were untimely, having

• ccurred more than 180 days before the complaint was filed. The City responded to the two timely

requests by providing a memorandum and an in-person meeting.

28. Jackson Cnty. Sheriff's Emps.' Ass'n v. Jackson Cnty. Sheriff's Dept,

• No. UP-23-11, 25 PECBR 449 (Apr. 11, 2013):

ERB held that the County did unilaterally change the status quo by limiting the number of deputies who could take a vacation at any one time. ERB held that the standards were: (1) whether an employer made a change to the status quo; (2) whether the change concerned a mandatory subject of bargaining; and (3) whether the employer exhausted its duty to bargain. ERB noted: "We begin with the preliminary step in any unilateral change claim―whether there has been a change in the status quo. To make that determination, we consider whether the parties have, by their words or actions, defined their rights and responsibilities with regard to a given employment condition." 25 PECBR at 457 (internal quotation marks and citations omitted). ERB concluded: "After considering the parties' agreement, work rules, policies, and the County's 'pattern of behavior,' we find the status quo to be that the County retained (and exercised) the right to determine (for operational needs) the number of corrections deputies who could take vacation at the same time. As a result, there was no change in the status quo in December 2010, when the County again exercised that right." 25 PECBR at 458.

IV. REQUEST FOR INFORMATION 29. ATU v. TriMet, No. UP-56-09, 25 PECBR 152 (Oct. 10, 2012):

TriMet failed to timely respond to a union request for information about the date that TriMet's medical insurance provider used for calculating copayments. The request was first made orally and then in writing. Efforts to resolve the underlying dispute was pursued along multiple channels, and several times it appeared to at least some of the participants that the matter was resolved. ERB rejected the argument that TriMet was engaged in repeated requests in "fish and grieve" expeditions, finding that the record did not support that argument—although it did recognize such a history as a legitimate defense. ERB held that the parties could not waive or otherwise be estopped from expecting timely responses, rejecting out of hand a TriMet argument that the parties had a standard 30-day response time—which ERB noted was not satisfied.

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ERB evidentiary ruling: In two conversations the context of which was disputed, ERB credited versions propounded by the union attorney because she produced what were found to be "contemporaneous notes."

V. REFUSAL TO BARGAIN / BAD-FAITH BARGAINING 30. OSEA v. Baker Sch. Dist. 5J, No. UP-21-11, 24 PECBR 837 (June 13, 2012):

Discussion about rejected interference, domination, and discrimination claims is summarized above. District had proposed cost savings from prorating insurance coverage based on the number of days

• worked. ERB concluded that the District had wrongfully implemented its final offer because it

"failed to include any information about how it had calculated its savings from the proration proposal [and provide] a cost summary of the other economic issues in its final offer." 24 PECBR at 861. The remedy ERB ordered was to undo the implementation (from one year before) and file new final offers and cost summaries. ERB rejected a number of other contentions that the union made about the final offer, including that it had been mislabeled as "Last Offer," that actual contract proposals had not been included (instead, the District included a summary), that the proposals were too vague to be implemented (ERB noted that the union could have hashed these out in bargaining), and that one proposal extended outside the term of the proposed contract.

31. AFSCME v. State of Or., Dep't of Corrs., No. UP- 006/016-10, 24 PECBR 864 (June 19, 2012) (Rossiter, Gamson concurring; Logan recused)

Department deputy director engaged in unlawful direct dealing when he convened a meeting of union leaders not on the bargaining team to discuss bargaining issues. The State argued that the deputy director's conversation was limited to two union leaders; he merely offered options to furlough days, did not ask for or take responses or input, and expressly stated that he was not bargaining with them. One of six options had not been discussed in bargaining with the union and involved the offer of "sweeteners," although it was not clear whether the sweeteners were new. Two lessons: (1) before going public with any idea, need to present idea/proposal to the union bargaining team, (2) any sort of private meeting smacks of bargaining and proceeds at your risk. Adding new proposal outside of time limits of ground rules and including it in final offer breached written agreement and constituted an unfair labor practice under ORS 243.672(1)(g). Proposal of suspending holiday pay in lieu of furloughs had been discussed, and was part of a "suppositional proposal" but never part of a formal proposal, so ERB considered it a new proposal. Lesson: Suppositional proposals don't count (according to Rossiter).

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Gamson in concurring opinion distinguishes between new issues being raised in a final offer versus a new proposal. 24 PECBR at 891.

32. Jackson Cnty. v. Jackson Cnty. Sheriff's Emps.' Ass'n,

• No. UP-24-11, 25 PECBR 209 (Nov. 5, 2012):

Jackson County Sheriff's Employees' Association did not refuse to bargain in good faith over Jackson County's proposal to separate a mixed unit of strike-permitted and strike-prohibited employees. ERB starts with proposition that the complainant bears the burden of proof and must prove disputed issues by a preponderance-of-the-evidence standard. Union walked out on initial bargaining session on belief that County was conditioning further bargaining on a permissive subject of bargaining, that is, dividing the unit. ERB found that the County, despite two requests from the union, did not clarify whether it was so conditioning

• bargaining. When the County later clarified that it was not conditioning bargaining, the union

returned to the table. ERB applied a totality-of-circumstances test to the allegation, found that the County had not met its burden, and dismissed the complaint.

VI. BREACH OF CONTRACT 33. PSU Association of University Professors v. PSU, 352 Or 697 (Nov. 29, 2012) (reversing court of appeals and affirming ERB, No. UP-36-05, 22 PECBR 302, ruling on reconsideration, 22 PECBR 503, and on motion to stay, 22 PECBR 619 (2008)):

A "resort to other procedures" provision in a party's grievance-arbitration article constituted unlawful retaliation. The provision permitted the employer to cease processing a grievance that was also the subject of an administrative agency investigation or charge or a court action.

34. AFSCME v. Crook Cnty. Road Dep't, No. UP-45-10, 25 PECBR 121 (Oct. 3, 2012) (appeal pending):

ERB held that the employer lacked just cause to discharge the union's chief steward. (Rossiter and Logan; Weyand recused) ERB applied a just-cause standard as required by the parties' agreement under ORS 243.672(1)(g). In applying just cause, ERB invokes a "reasonable employer" standard, which it describes as one under which the employer:

• 1. generally disciplines employees in good faith and for cause,

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• 2. imposes sanctions proportionate to the offense,
• 3. considers the employee's length of service and record in determining sanctions,
• 4. applies principles of progressive discipline unless the offense is gross,
• 5. enforces reasonable rules,
• 6. gives employees fair notice that violations of these rules may result in discipline,
• 7. imposes discipline in a timely manner,
• 8. warns an employee about proposed discipline,
• 9. makes a fair investigation before imposing discipline,
• 10. gives an employee an opportunity to refute the charges, and
• 11. bases any disciplinary action on substantial evidence.

In this case, the County proposed discipline for six different offenses, and ERB reviewed each. The first three occurred seven months or more before the discharge and had not resulted in discipline at the time. ERB thus concluded that the employer was unreasonable in failing to timely inform the employee that those acts were unacceptable and so rejected those incidents as a legitimate basis for discharge. As to the three remaining incidents―negligence in getting the broom vehicle stuck, violating rules about using diesel fuel as a release agent, and visiting the department facilities during off- hours―ERB held that the employer had acted unreasonably in discharging the employee. Other

• perators had gotten the broom truck stuck and required a tow. The County did not prove that the

employee was aware that she could not use diesel fuel as a release agent, and another employee who visited facilities was simply told not to do so again without any discipline.

35. ATU Div. 757 v. Tri-Met, No. UP-42-10, 25 PECBR 385 (Jan. 15, 2013):

TriMet violated the terms of an agreement with ATU regarding Fare Inspectors by removing three Fare Inspectors from their Fare Inspector positions, and later placing two of them on more onerous

• schedules. (Logan and Weyand)

ERB enforced two side agreements involving Fare Inspectors. One agreement guarantees them jobs in the Fare Inspector position until they "resign, retire or involuntarily leave the district." The second agreement adds two persons to coverage of the first agreement. TriMet unsuccessfully argued that the phrase in the second agreement that it "identifies all the terms and conditions of the settlement in its entirety" was ambiguous. ERB thus considered extrinsic evidence, including the self-serving testimony of the aggrieved employees and the union official about their "unrebutted" understanding of what was intended at a meeting. Considering the extrinsic evidence, ERB extended the guarantees of the first agreement to the two employees subject to the second agreement.

36. Portland Police Ass'n. v. City of Portland, No. UP-25/26/27-11, 25 PECBR __ (May 3, 2013):

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The union challenged the discipline of three employees under the contractual just-cause provision as a breach of contract under ORS 243.672(1)(g). The union had taken each discipline to arbitration under the parties' agreement. The arbitrator ruled that three grievances were untimely filed and thus not arbitrable. ERB refused to permit the union to bring the claims for breach of contract under ORS 243.672(1)(g) under its deferral standards.

VII. TIMELINESS 37. Rogue River Educ. Ass'n v. Rogue River Sch. Dist. 35, UP-17-08, 25 PECBR 230 (Nov. 13, 2012), order on remand from 244 Or App 181 (2011):

Timeliness: Court of appeals ruled that "discovery rule" applied to PECBA's 180-day statute of limitations, which requires ERB to ask "whether the association knew or reasonably should have known [of the unfair labor practice] more than 180 days before it filed its complaint." 244 Or App at 193 (emphasis omitted). ERB held that the 180-day period ran from date on which the Association (not the employee) learned about the change of benefits in November 2007. The employer made the change in June 2007 but did not inform the Association of the change. Breach of contract: ERB held that the District owed employee an additional year of benefit coverage under an early retirement memorandum of understanding ("MOU") entered in 2000. ERB concluded that the triggers for terminating benefits in the 2000 MOU were not satisfied and concluded that there was no evidence that provisions of a 2007 MOU would apply retroactively to cover an employee retiring under the 2000 MOU. Key rulings:  No additional evidence permitted.  Claim based on a separate MOU for retirement benefits that does not reference the CBA's grievance arbitration provision and is not incorporated into the CBA. Therefore, no exhaustion of the contractual remedies is required.  No weight given to employer's understanding of MOU provision not shared with Association because it is not an "objective manifestation" of the parties' intent.

38. Seehawer v. AFSCME & Dep't of Corrs., No. FR-02-11, 25 PECBR 47 (Aug. 27, 2012):

Duty of fair representation: ERB dismissed this duty-of-fair representation case, issuing several rulings:

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 Even nonlawyers appearing pro se must comply with rules about listing and exchanging exhibits before hearing.  The 180-day limitation period applied to claims of unfair representation. The employee was

• r should have been aware of his union's alleged acts or omissions, including the alleged

failure to ask for in-person meeting regarding grievance, refusal to represent him at grievance meeting, and failure to provide him with proper fax number for filing when they occurred.  Passage of time serves as notice to employee that union intends not to act.

VIII. ENFORCING ARBITRATION AWARDS 39. Portland Police Ass'n v. City of Portland, No. UP-23-12, 25 PECBR 94 (Sept. 21, 2012) (appeal pending):

ERB enforced an arbitration award issued by Arbitrator Jane Wilkinson, who reinstated Officer Ronald Frashour, despite shooting an unarmed Aaron Campbell in the back when turning away from officers. The arbitrator ultimately concluded that the officer acted consistent with his training and with constitutional standards for deadly force. The City challenged the award under the PECBA public policy exception of ORS 243.706(1). In its review, ERB applied its standard for reviewing arbitration awards under its three-part test: "(1) we determine whether the arbitrator found that the grievant engaged in the misconduct for which discipline was imposed; (2) if so, we then determine if the arbitrator reinstated or otherwise relieved the grievant of responsibility for the misconduct; and (3) if so, we determine if there is a clearly defined public policy, as expressed in statutes or judicial decisions, that applies to the award and makes it unenforceable." 25 PECBR at 111. Two key factors: Arbitrator did not find that the grievant engaged in any misconduct. In any event, ERB has not looked to the particular findings but the arbitrator's ultimate conclusions. There are cases in which an arbitrator may find misconduct but then impose a lesser penalty or find misconduct but conclude that it was not sufficient to find just cause. Second, ERB understands the Oregon Supreme Court to require a public policy to specifically bar employment under the circumstances found by the arbitrator, which would generally arise only under an accreditation statute. This approach is substantially narrower than was intended by, and would seem to ignore legislative comments made by, the chief sponsor of the exception, Sen. Neil Bryant.

40. State of Oregon, Dep't of Admin. Servs. v. SEIU Local 503,

• No. AR-002-11, 25 PECBR 402 (Feb. 15, 2013):

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Issue: Did the arbitrator exceed his authority when deciding that certain employees were due a wage increase notwithstanding the state salary freeze? Held: No, arbitrator was merely filling the gap. ERB noted that "gap-filling" is an appropriate role for a trier of fact in a contract dispute generally and in particular for an arbitrator in a collective bargaining context, citing prior court of appeals case.

IX. MOTION TO STAY 41. ATU Div. 757 v. Tri-Met, No. UP-39-10, 25 PECBR 431 (Mar. 14, 2013):

ERB ordered TriMet to repay insurance contributions collected from staff. ERB rejected TriMet's petition to stay the order because TriMet failed to establish irreparable harm. TriMet claimed, but did not prove to ERB's satisfaction, that the amount it would have to repay was $3.6 million and that its chance of recovering such payments from employees was remote (despite the union's direction to members not to cooperate with TriMet in recouping payments to employees permitted by an interest arbitration award).

42. AFSCME Local 1329 v. Crook Cnty. Road Dep't, No. UP-45-10, 25 PECBR 435 (Mar. 22, 2013):

ERB ordered reinstatement and back pay, and the County moved to stay the award. ERB uniformly rejects irreparable-harm claims as to reinstatement (even when public safety is at stake and potential for liability is high) and finds that the difficulty of recouping back wages is not irreparable.

X. INTEREST ARBITRATIONS 43. FOPPO and Multnomah Cnty., IA-05-11 (Whalen, Arb., May 11, 2012) (Employer):

The key differences in the parties' proposals for three-year contract was that the County proposed a third-year wage adjustment of a COLA from 1 to 4 percent, and the union proposed a reopener, an ORPAT incentive and a workers' compensation supplement.  County did not claim inability to pay, and so the arbitrator did not consider it.  The arbitrator found that County currently has the ability to attract and retain personnel.  The parties disagreed about comparables, and the arbitrator rejected the union's efforts to use the state and the county's submission of California counties of like size, relying solely on comparisons to Washington and Clackamas counties. The arbitrator found the County slightly behind these two comparables.  The arbitrator considered other factors, including that the County was a "leader" in the state and its officers had greater risks and responsibilities than the comparables, which argued for higher wages.

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 But the arbitrator considered that the current economic climate put the parties' proposals on equal footing.  Arbitrator considered other proposals, most significantly a workers' compensation supplement, without limit and other complicating factors. Calling the case close, the arbitrator found for the County in light of the workers' compensation proposal.

44. ATU Local 757 and TriMet, No. IA-07-10 (Gaba, Arb., July 12, 2012) (employer):

The focus of the case was TriMet's inability-to-pay argument. TriMet calculated the difference in the two proposals at $12 million based on the parties' health insurance proposals. TriMet also proposed a defined contribution plan for all new hires and a revised retiree medical program. Arbitrator concluded that TriMet had the ability to pay and had no difficulty attracting and retaining

• workers. TriMet's costs, however, exceed others in the western United States.

45. IAFF Local 1432 v. City of Medford, No. IA-13-11 (Lankford, Arb.

• Aug. 20m 2012) (employer):

Cost differences between the union and employer proposals are $176,000 (union calculation) and $260,040 (employer calculation). Ability to pay and retention of employees was not a factor. The comparability analysis, even that presented by the union, showed the City employees paid above the average and on that ruled for the employer.

46. City of Albany and Teamsters Local 223/Albany Police Ass'n, No. IA-11-11 (deGrasse, Arb., Oct. 26, 2012) (employer):

The only disputed issue was wages. Employer proposed 0-2 to 2 percent. The union proposed 1 percent, 2.9 percent, and a COLA of 1 to 4 percent. The pertinent statutory factors were ability to pay, comparability, and the cost of living. The arbitrator found that the union discounted the employer's inability to pay, ignoring the compounding effects and that union's comparability analysis was flawed.

47. City of Troutdale v. Troutdale Police Officers' Ass'n, No. IA-08-12 (Krebs, Arb., Jan. 16, 2013) (union):

The only issue was health insurance. The parties had agreed to a three-year agreement, with the employer picking up the employees' PERS contribution.

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The arbitrator rejected the City's proposed change in health plans that would save the City money,

• pting to maintain the current plan, noting that the City was low relative to comparables in overall

compensation.

48. Jackson Cnty. and Jackson Cnty. Sheriff's Ass'n, No. IA-02-12 (Axon, Arb.,

• Mar. 8, 2013) (employer):

The union proposed substantially higher wage and medical insurance contributions. The County proposed a hard cap on medical costs, with employees picking up all increases in excess of the cap. The arbitrator looked to criteria of other factors in rendering his ruling for the employer, seemingly because of internal equity issues.

XI. OTHER CASES 49. Ellins v. City of Sierra Madre, 710 F3d 1049 (9th Cir Mar. 22, 2013):

Union officer's activities to obtain a vote of no confidence against the city's police chief involved a matter of public concern and was thus constitutionally protected, and the delay in pay increase constituted an adverse employment action actionable under 42 USC § 1983. The chief was not entitled to qualified immunity because she "acted unreasonably in light of clearly established law." 710 F3d at 1064. Summary judgment for the chief was reversed. The grant of summary judgment for the City was affirmed because it was not liable for the chief's actions.

50. James v. Clackamas County, 353 Or 431 (Apr. 11, 2013), affirming 243 Or App 453 (2011):

Affirming the court of appeals, reversing the trial court, supreme court held that the County's

• bligation to underwrite the medical benefits for management employees of the sheriff's office

ceased when the fund established in 1995 for that purpose by County ordinance was depleted. A retired management employee sued the County for reducing his retiree medical benefits. The appellate court found that a "legislative" contract was created by the County board through an

• rdinance to fund certain retiree medical benefits, which was made contingent on adequate funding.

The court noted that unless an employment contract provides otherwise, an employer may prospectively modify or eliminate benefits not already earned as compensation for work. That is, it may eliminate benefits that have not vested. Because the benefit was contingent on adequate funding, it never vested. At the supreme court, the plaintiff focused on whether the obligations created by the first fund were supplemented by a second fund created in a collective bargaining relationship with the deputies'

• union. Applying contract interpretation principles, the court rejected the plaintiff's arguments.