Recent Case Developments in Oregon Public Employment Law By Jeffrey - - PDF document

Recent Case Developments in Oregon Public Employment Law

By Jeffrey P. Chicoine, partner Miller Nash LLP

TABLE OF CONTENTS Page

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Representation/unit clarification .............................................................................

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Deferral to grievance arbitration .............................................................................

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Interference and discrimination ..............................................................................

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Good-faith bargaining obligation ............................................................................

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Unilateral changes ...................................................................................................

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Obtaining information/duty to provide information ............................................

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Breach of contract ..................................................................................................

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Arbitrations .............................................................................................................

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Timeliness ...............................................................................................................

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Dues deductions ....................................................................................................

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Benefit cases ..........................................................................................................

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Oregon Interest Arbitration Awards (2009-2011) .................................................

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Recent Case Developments in Oregon Public Employment Law By Jeffrey P. Chicoine, partner Miller Nash LLP (January 2010 to July 15, 2011) Representation/unit clarification 1. SEIU Local 503, OPEU v. State of Oregon, Dep't of Transp,

• No. UC-026-09,

24 PECBR __ (May 12, 2011). ERB dismissed an SEIU unit clarification petition filed under OAR 115-025-0005(3). Under such petitions, ERB "will look only to the express language of the certification description or of the collective bargaining agreement in deciding whether the disputed positions are included or excluded." ERB stressed its long-established rule that under such petitions it merely interprets the unit description to determine what is already "in or

• ut" and does not add positions.

In this case, SEIU sought to include positions added to the department from another agency in 1996 under SB 1149. SEIU focused on the catchall phrase that the unit consisted of "all classified employees" of the department, while the department focused

• n the exclusion of "all others excluded by law." This prompted ERB to examine the

1996 bill, which specified that the transferred positions would not initially be made part

• f a bargaining unit and would be subsequently added only "if petitioned for in

accordance with" the PECBA. ERB interpreted this to mean that the employees in those positions would have to petition for inclusion in a unit. 2. Marion Cnty. Dist. Att'y Investigator Ass'n v. Marion Cnty.,

• No. RC-18-09,

24 PECBR 181 (Feb. 1, 2011). District Attorney's investigators, who were part of the County's collector unit represented by SEIU Local 503, formed an independent labor organization and filed a unit clarification (UC) petition under OAR 115-025-0005(3) and, in the alternative, a representation case (RC) petition in an effort to break free from the SEIU

• representation. This case contains four noteworthy rulings:
• Before the hearing, ERB through its election coordinator dismissed the UC

petition, saying that the new District Attorney's Investigators Association lacked standing to file a UC petition under OAR 115-025-0005(3) because it was neither the recognized bargaining representative nor the public employer.

• Following a hearing, ERB determined that the RC petition was untimely

because it had been filed while the County-SEIU contract was in effect and not during the open filing period before contract expiration.

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• The investigators argued that they were strike-prohibited as police officers

under the PECBA and that the SEIU, per the contractual recognition clause, excluded strike-prohibited employees. ERB refused to reinterpret the recognition clause in the County-SEIU contract to exclude the investigators from the SEIU unit, noting that such an interpretation was "contrary to" the agreement, bargaining history, and "past and present relationship," citing NLRB case authority and PECBA policies of promoting peaceful dispute resolution and stable labor relations.

• ERB held, in the alternative, that the investigators were not police officers

under the PECBA because their "focal duties are not to enforce all state criminal laws and maintain the public order," citing prior case law excluding state liquor control officers and parole and probation officers from the PECBA definition of police officers. 3. Admin.-Prof'l Ass'n of Lane Cnty. v. Lane Cnty. & AFSCME Local 2831,

• No. UC-12-09, 24 PECBR 76 (Jan. 12, 2011).

Order issued without objections denying petition by "raiding" union to move information services personnel from general unit to "specialized" public works unit. Significant points:

• 91-page order.
• Association failed to establish support from any statutory factors except

desire of employees. ERB applied standard test for transfer from general into specialized unit, which was not met here: (a) targeted positions are only within part of employer's operation represented by specialized unit, and (b) targeted positions have "significant functional relationship" with those within specialized unit. 4. IBEW Local 659 v. City of Canyonville, No. UC-15-10, 23 PECBR 962 (Oct. 19, 2010). In petition to clarify, ERB ruled:

• Bookkeeper belonged in the bargaining unit and was not excluded as

confidential, but deputy city recorder is excluded as confidential. ERB emphasized that with unit's small size, employer cannot justify having two excluded confidential employees.

• Temporary employees were not included within unit description. In a unit

clarification petition under OAR 115-025-0005(3), ERB will only consider the scope of unit described in the certification or the recognition clause.

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5. Laborers' Int'l Union v. City of Aurora, No. CC-06-10, 24 PECBR 38 (Dec. 7, 2010), on reconsideration, 24 PECBR 221 (Mar. 11, 2011). ERB ruled that police officer who directed reserves, helped train the police clerk and develop and present the budget, applied for grants, worked with the court and dispatch center, and implemented various programs was not a statutory supervisor and had insufficient "administrative affinity" with supervisors to be excluded from unit (because of insufficient "community of interest" with others in unit). ERB granted reconsideration after the employer laid off one of the two police officers in the unit. ERB declined to revoke the certification although the unit was down to one member because the union neither had disclaimed interest nor was "defunct," meaning that it was unable or unwilling to function. ERB did rule that there was no obligation to bargain with a one-person unit, noting that the term "collective" connotes bargaining with more than a single individual. 6. Beaverton Police Ass'n v. City of Beaverton & SEIU Local 503, No. UC-13-09, 23 PECBR 803 (June 17, 2010). Police union petitioned to add police department support personnel and photo radar coordinator into unit. ERB held that the police department support personnel had a community of interest with support personnel in other city departments and should remain in the general unit. ERB, however, transferred the photo radar coordinator into the police unit: "We include strike-permitted positions in a strike-prohibited bargaining unit only if the positions have duties, like those of the Police Photo Radar Coordinator, that are unique or distinctive and are closely tied and integral to the law enforcement agency's mission." 7. IBEW Local 659 v. Eugene Water & Elec. Bd., No. CC-05-09, 23 PECBR 739 (May 26, 2010). IBEW filed a representation petition for certification by card check of a new unit of nine engineering technicians. ERB will not certify new unit of nine engineering technicians that occupies part, but not all, of a single section within a single division. Many employees outside the proposed unit had similar duties and working conditions. The only unit at EWEB had about 150 to 170 production and maintenance employees out of EWEB's 500 employees, which included some employees within the same division as the engineering technicians. ERB concluded that the proposed unit lacked a distinct community of interest and would "create needless unit fragmentation."

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Deferral to grievance arbitration 8. Eugene Police Emps.' Ass'n v. City of Eugene, No. UP-038/41-08, 23 PECBR 972 (Oct. 27, 2010) (Gamson, concurring). ERB indicated that it "generally postpones processing" unilateral change cases under ORS 243.672(1)(e), pending resolution of grievance arbitration. When so informed, the parties notified the ALJ that the parties had withdrawn the pending grievances and asked ERB to resolve the pending complaint. [See also discussion below under "Unilateral changes."] 9. City of Salem v. Salem Police Emps. Union, No. UP-04-10, 23 PECBR 725 (May 3, 2010). ERB ordered interest arbitration stayed pending resolution of grievance in grievance arbitration hearing and ruled that it would stay hearing of the City's unfair labor practice complaint alleging violations of ORS 243.672(2)(b) & (c). The union demanded to bargain a change in schedule. The employer asserted that the change was permitted under contract terms, but expressed willingness to bargain over the change. After an unproductive meeting, the employer said it would implement the

• change. In response, the union initiated interest arbitration and filed a grievance over

the same issue. The employer filed an unfair labor practice complaint against the union

• ver improperly initiating interest arbitration.

Interference and discrimination

• 10. Clackamas County Employees' Assn. v. Clackamas County, No. A142062,

243 Or App 34 (May 25, 2011), rev'g and remanding, No. UP-07-08, 23 PECBR 90 (Apr. 15, 2009). Court of appeals held that the employer had violated ORS 243.672(1)(a) for comments that the district attorney (DA) made to an association officer in a "due process" hearing

• ver the possible dismissal of a represented employee. After the officer smirked at a

comment of the DA, the DA threatened to remove him and to never allow him to attend a meeting in the DA's office again. The court framed the issue as whether the threat would chill association members generally in exercising protected rights. The court explained that the issue was neither whether smirking was a protected activity nor whether an expression of frustration by a public employer would chill a public employee from engaging in protected activity. Agreeing with the dissent of Chairman Gamson, the court of appeals reversed ERB (Rossiter and Cowan in the majority). The court rejected the majority's view of "no harm, no foul" and noted that an objective test should be applied. The court concluded that the DA's actions were objectively likely to chill employees in exercising protected rights.

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• 11. AFSCME Council 75, v. Josephine County, 234 Or App 553 (Mar. 31, 2010),

aff'g No. UP-26-06, 22 PECBR 61 (Oct. 30, 2007). The court of appeals affirmed ERB's conclusions and orders in ORS 243.672(1)(a) case and ordered reinstatement of a program's workforce: "In this case, ERB found that the county privatized mental health services 'because of' the AFSCME strike, and that action caused a derivative restraint 'in the exercise of' members' rights. ERB based those findings on both direct and circumstantial evidence. The direct evidence consisted of the two statements from county officials to AFSCME members that, had AFSCME not gone on strike, the privatization would not have

• ccurred. The county argues that the two officials who made the statements testified

that they did not do so, and that 'it is more probable than not' that the statements were never made. We reject the county's contention for two reasons. First, we review findings of fact for substantial evidence, not for a preponderance of the evidence. ORS 183.482(8)(c). Second, ERB provided detailed and logical explanations for its credibility findings." 234 Or App at 560.

• 12. SEIU Local 503 v. State of Oregon, Dep't of Transp., No. UP-11-09, 23 PECBR

939 (Oct. 18, 2010). ERB ruled:

• The employer was barred from presenting evidence when it failed to file a

timely answer to the complaint.

• Settlement of dispute underlying unfair labor practice complaint does not

moot the case because the employer's actions chill protected rights even if the violation later ceases.

• The employer violated subsection (1)(a) "because of" prong by disciplining

the union steward for:

• E-mailing three private attorneys with recording of grievance meeting from

state account on grounds that it contained confidential information because it conflicted with union PECBA-protected rights to obtain legal advice about a grievance; and

• Conduct deemed rude and disruptive at labor-management meeting he

attended as a steward that included the calling for an HR manager's resignation, because the conduct was not pursued on a personal basis but as part of union business and "not so outrageous" as to remove it from PECBA-protected activity.

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• 13. Chemeketa Cmty. Coll. Classified Emps. Ass'n v. Chemeketa Cmty. Coll.,
• No. UP-27-08, 23 PECBR 612 (Mar. 10, 2010).

ASL interpreters filed grievance, seeking bilingual pay. The union was told that if it prevailed, the college would simply reduce the interpreters' pay grade. ERB held that this threat violated the "in the exercise" prong of subsection (1)(a) because it had the "natural and probable effect" of discouraging the exercise of PECBA- protected rights. ERB rejected the college's argument that it was simply asserting a legal right because there was no basis for making such downward adjustments.

• 14. Gresham-Barlow Educ. Ass'n v. Gresham-Barlow Sch. Dist. No. 10J,
• No. UP-32-07, 23 PECBR 170 (June 4, 2009), on reconsideration, 23 PECBR 219

(June 30, 2009), aff'd without opinion, 241 Or App 352 (Mar. 2, 2011). The union claimed that the school district had violated subsection (1)(a) when it transferred two teachers to another school. The teachers disrupted the district's efforts to work with staff and the union to develop an approach to comply with "No Child Left Behind" Act after the school was placed on a probationary status. ERB held that the "because of" prong was not violated. ERB applied a mixed-motive analysis because the district had lawful (disruptive conduct) and unlawful (assertion of PECBA-protected rights) motives for the transfer. ERB found that the transfer decision was attributed to the lawful motive. ERB did hold that the "in the exercise" prong was violated. ERB ordered the district to cease and desist from its unlawful conduct, but did not order that the employees be reinstated to their former positions. Such reinstatement orders are issued only for "because" violations. Good-faith bargaining obligation

• 15. Multnomah Cnty. Corr. Deputies Ass'n v. Multnomah Cnty. and Multnomah
• Cnty. v. Multnomah Cnty. Corr. Deputies Ass'n, No. UP-57/64-10 (June 29, 2011),

appeal pending. By a 2-1 vote, ERB ruled that the Association's bargaining proposal to require a specific number of "training" hours was not addressing a mandatory subject of bargaining. The majority, consistent with prior case law, concluded that "the subject of a [bargaining] proposal is a 'safety issue' if the proposal directly and unambiguously addresses a matter related to strike-prohibited employees' workplace safety." This was a case of first impression applying SB 400 from 2007, which made proposals impacting on-the-job safety of strike-prohibited employees a mandatory subject of bargaining. The majority noted that the proposal "neither expressly nor directly addresses safety [and that] the connection between training and safety is not apparent from the proposal's language." Such a connection is found only in extrinsic evidence, which the majority did not

• consider. The majority further concluded that because the proposal did not address

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safety, it need not consider whether the proposal actually "impacts" on-the-job safety of the employees. The majority therefore concluded that the Association had violated ORS 243.672(2)(b) by including such a proposal, over the employer's objection, in its final offer submitted to the state conciliator after mediation. Chairman Gamson in another long and stinging dissent disagreed with nearly every aspect of the majority's analysis.

• 16. AFSCME Local 2831 v. Lane Cnty., No. UP-38-09, 24 PECBR 197 (Feb. 28,

2011). The union objected to the County's delaying bargaining over a drug-free workplace until after completing successor bargaining. During successor bargaining, the County without comment from the union had stated that it wanted to bargain the policy after successor bargaining was completed. The County's rationale was that it did not want to further complicate already contentious negotiation and wanted to wait until after resolving a drug-testing matter involving an employee. ERB dismissed the complaint after analyzing it as a dilatory tactic and under a totality-

• f-circumstances test. Surprisingly, ERB called it "an extremely close question" even

though the union had never pursued the subject during successor bargaining.

• 17. Oregon AFSCME Council 75, Local 3742 v. Umatilla Cnty., No. UP-37-08,

23 PECBR 895 (Sept. 22, 2010). During bargaining on reopener over insurance coverage, the employer did not violate its duty to bargain in good faith when it stuck to its opening position throughout bargaining

• f maintaining the current insurance package, made no concessions, and made no
• counterproposals. ERB considered the fact that the employer had met several times,

costed the union's proposal, and offered reasons for its positions. The fact that the County asserted that it had no obligation to bargain, but proceeded to bargain, was a statement of legal position and not bad faith.

• 18. Southern Oregon Bargaining Council/Rogue River Educ. Ass'n v. Rogue

River Sch. Dist. 35, No. UP-62-09, 23 PECBR 767 (June 8, 2010), reconsideration, 23 PECBR 878 (Aug. 18, 2010), appeal pending. The parties had engaged in collaborative interest-based bargaining (IBB), but reverted to traditional positional bargaining after more than 150 days had passed. The City then made a series of proposals, including regressive economic proposals on April 10 and June 4, 2009, as budgets were developed and revised. A mediation conference was held on June 10, 2010.

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ERB held:

• The regressive proposals were not a per se violation. ERB also ruled, in the

alternative, that there was no violation under a totality-of-circumstances analysis, noting (a) that the regressive proposals had resulted from changed circumstances, and (b) the City's continued willingness to bargain.

• For determining the 15-day period of mediation, mediation begins on the day
• f first conference with the mediator and parties. Thus, proposals sent to the
• pposing party before the mediation conference were not made during

mediation.

• The employer did not raise a new issue in mediation when proposing to use

expedited bargaining to negotiate over the loss of state-supplied School Improvement Funds. ERB previously held that a proposal on a new issue made during mediation is a per se violation. Because the parties had previously discussed the fund, it was an issue "reasonably comprehended within" or that "logically evolved from prior discussions of bargaining proposals." Complaint was dismissed. Gamson, concurring, would dismiss complaint because the parties' bargaining was conducted outside of the PECBA framework. In Chair Gamson's view, none of the PECBA bargaining rules should apply in such situations. On reconsideration, the Association argued that the proposal had been e-mailed on June 4 and was not formally presented until mediation on June 11. ERB specifically held that the good-faith bargaining obligation can also be satisfied by e-mail. Gamson again concurred, restating his prior position and castigating the majority for permitting bargaining by e-mail.

• 19. Three Rivers Educ. Ass'n v. Three Rivers Sch. Dist., No. UP-16-08, 23 PECBR

638 (Mar. 29, 2010), appeal pending. School district was not obligated to bargain decision to implement trimester school calendar because "the school or educational calendar" is specifically exempted from definition of employment relations under ORS 243.650(7)(e). School district was

• bligated to bargain the effects or impacts of the change on the teacher's student

contact time, which is teacher workload and a mandatory subject of bargaining. After deciding to change the school calendar but before implementing the change, the district satisfied its 90-day expedited bargaining obligation for midterm contract changes and properly implemented the change. Complaint was dismissed.

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Chair Gamson dissented, saying that there was a separate decision to change the student contact time, which is workload and a mandatory subject of bargaining. Thus, the district was obligated to bargain before making the decision.

• 20. Hood River Cnty. v. Oregon AFSCME Council 75, Local 1082, No. UP-09-08,

23 PECBR 583 (Feb. 25, 2010). ERB addressed several questions: Did the union breach its duty to bargain in good faith when it failed to support ratification

• f a tentative agreement after discovering that it had miscalculated the cost of health

insurance for part-time staff? Yes. Did the union violate the parties' ground rules agreement, which called for the active support of any tentative agreements reached, when not supporting ratification? Yes. Did the union violate subsection (2)(b) by adding a new proposal in its final offer—that is, that the district pay 100 percent of premiums for part-time employees? Yes, submitting a new proposal in a final offer when impasse is declared is a per se violation. Did the union violate (2)(b) by bad-faith bargaining under a totality-of-circumstances approach? No, the union may have been inept and hobbled by an inexperienced negotiator, but it did have a bona fide intent to reach an agreement. The parties did reach an agreement, which the County did not seek to invalidate. Unilateral changes

• 21. Wy'East Education Assoc. v. Oregon Trail School District No. 46, No. A140836

(July 13, 2011), reversing UP-16-06, 22 PECBR 911(2009), order denying reconsideration, 23 PECBR 34 (2009). Court of appeals reversed ERB's dismissal of unfair labor complaints under ORS 243.672(1)(a), (b) and (e) challenging District's handling of health insurance premiums during strike. District informed striking staff that district would not carry cost of health benefits during strike, did not entertain offer of state association to pay district for the employee's cost of benefits, and then deducted one month of premium for health insurance from paychecks being issued to staff. Court held that the record lacked evidence showing that District's actions were consistent with any established practice and that ERB's conclusion "was not supported by substantial reason." According to the court, the Association was challenging the District charging staff for insurance costs while on strike beyond the amount permitted the parties' expired agreement. ERB had "mischaracterized" the Association's position as asserting that the District should have charged only a pro rated share of the premium costs. Applying a similar analysis, the court concluded that ERB's dismissal of the complaints under ORS 243.672(1)(a) and (b) also lacked "substantial reason." The court remanded the case to ERB for further proceedings.

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• 22. Teamsters Local 223 v. City of Medford, No. UP-53-10, 24 PECBR 169 (Jan. 14,

2011), on reconsideration, 24 PECBR 225 (Mar. 16, 2011). Background: City of Medford provided staff (Teamsters-represented and management) with insurance from the Oregon Teamsters Employees Trust (OTET), which was unavailable to retirees. Retirees could extend coverage under COBRA for 18 months and were then permitted to enroll in Oregon's Public Employees Retirement System Health Insurance Program. Retired employees challenged the City's compliance with ORS 243.303(2). The circuit court ruled that the City had violated ORS 243.303(2) by offering health benefits to employees that did not include the option to continue coverage when retiring. The court ordered the City to change to the CIS plan, and the Teamsters filed an unfair labor practice complaint, alleging that the City had failed to bargain in good faith before making the change. ERB held that an employer need not bargain with the union over a subject that it has no control over. ERB cited prior decisions that addressed a federal grant requirement as to who would provide grant-funded services, the voter-mandated employee pay, the employee's share of PERS, or parking fees at the state garage in Portland set by the Department of Administrative Services per statute. ERB specifically rejected a request by both parties to assert that the subject was within its exclusive jurisdiction and petition an appropriate circuit order to enforce its order. ERB granted reconsideration, consistent with its established practice for cases initially decided by the Board without issuance of a recommended order. ERB permitted the union to make the additional argument that the employer had failed to bargain over the impacts of the change in insurance plans. ERB, however, rejected that argument, noting the comprehensive nature of the circuit court order and concluding that the employer "had no control over these impacts." [Also see discussion of other related cases under "Benefit Cases" below.]

• 23. Gresham Police Officers Ass'n v. City of Gresham, No. UP-06/18-10,

24 PECBR 55 (Dec. 16, 2010). The City failed to bargain change in effective date of a salary advancement, and the fact that the change benefited employees was not a defense. The City did not fail to bargain changes in policies relating to OFLA/FMLA because there was no substantive alteration and to jury duty leave because there was no prior established practice. [Also see discussion below regarding failure to provide requested information.]

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• 24. Eugene Police Emps.' Ass'n v. City of Eugene, No. UP-038/41-08, 23 PECBR

972 (Oct. 27, 2010) (Gamson, concurring). ERB dismissed subsection (1)(e), (f), and (g) charges against the City arising from the City's withdrawal of a bargaining proposal over adding the police auditor to a management interview team reviewing disciplinary matters, then referring the same question to the voters and implementing the change upon voter approval. The ERB majority ruled that:

• The filed complaint that predated the adoption and implementation of the
• rdinance (a) presented issues not ripe for review under a breach-of-contract

(ORS 243.672(1)(g)) charge, (b) was premature as a unilateral change charge under ORS 243.672(1)(a) since the status quo had not yet changed, (c) was premature as to the alleged violation of the midterm modification provisions of ORS 243.698, and (d) did not state a bad-faith bargaining charge based on the withdrawal of the proposal, which covered a permissive subject of bargaining.

• A second complaint filed after the adoption of the ordinance did not present

(a) a breach-of-contract violation under ORS 243.672(1)(g) because the contract terms did not specify who was in the management team, or (b) a violation of ORS 243.672(1)(e) for changing the status quo because there was no established past practice to exclude the auditor. Chair Gamson concurred by concluding that the subject of the dispute was permissive as covering assignments and qualifications for a position. Obtaining information/duty to provide information

• 25. Gresham Police Officers Ass'n. v. City of Gresham, No. UP-06/18-10,

24 PECBR 55 (Dec. 16, 2010). [Also see discussion above under "Unilateral Changes."] The City failed to provide a copy of the tentative agreement reached with firefighters in a timely manner, asserting that it was confidential per the parties' agreement. However, even when the reason for the confidentiality expired the City still did not provide the requested information in a timely manner (providing only a link to the Web page containing the revised agreement).

• 26. Hood River Cnty. v. Oregon AFSCME Council 75, Local 1082, No. UP-09-08,

23 PECBR 583 (Feb. 25, 2010). [Also see discussion above under "Good-faith bargaining obligation."] ERB ruled that an employer may not examine a union official during a contested-case proceeding about statements made by members at a union meeting. Such conduct chilled union rights, ERB reasoned, and violated subsection (1)(a). ERB explained that

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this was a natural extension of a prior ruling that an employer may not, during an investigatory interview, interrogate a union steward about statements made by a member, citing AFSCME Local 189 v. City of Portland, No. UP-7-07, 22 PECBR 752 (Oct. 23, 2008). ERB also ruled that there was no waiver by the union and that it is the member's privilege and can be waived only by the member. The County, however, did have the right to request and obtain minutes of the union's ratification meeting. The union's failure to produce portions of such minutes that did not contain confidential information warranted an inference that the evidence would have been unfavorable to the party. Breach of contract

• 27. Oregon AFSCME Council 75, Local 2746-5 v. City of Warrenton, No. UP-22-09

(June 21, 2011). By a 2-1 vote, ERB ruled that the City did not violate ORS 243.672(1)(g) when it insisted that agreement on a compensation/classification schedule was subject to ratification of the city commission. The parties agreed that a wage reopener, negotiated and tentatively agreed on at the same time, was subject to ratification. The ERB majority held that the only question remaining was whether the schedule was part of the reopener and concluded that it was. The ERB majority noted that the parties had not met ERB's "expectations" expressed in earlier decisions that a party "notifies the other early in the bargaining process that ratification is a condition of agreement." In a long and scathing dissent, Gamson concluded that the employer had failed to provide such notice here on the schedule and that therefore agreement on the schedule was not subject to ratification. Helpful hint: If an agreement is tentative and subject to ratification by your principal, put it in writing when starting negotiations in a letter or ground rules agreement.

• 28. Oregon AFSCME Council 75, Local #3997 v. Deschutes County, No. UP-32-09,

24 PECBR __ (May 26, 2011). ERB dismissed a breach-of-contract claim under ORS 243.672(1)(g) that challenged an employee's selection for layoff as inconsistent with the parties' bargaining agreement. ERB provided an excellent summary of how to interpret a collective bargaining agreement, starting with the text and context of disputed language and continuing with the use of past practice and bargaining history to determine ambiguous contract terms. ERB found the agreement ambiguous, but that a consistent county practice established the parties' intent as to how employees should be selected for layoff.

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Arbitrations

• 29. PSU Association of University Professors v. PSU, No. A138895, 240 Or App

108 (Dec. 29, 2010) pending petition for supreme court review, on appeal from

• No. UP-36-05, 22 PECBR 302 (Mar. 19, 2008), on reconsideration, 22 PECBR 503

(May 12, 2008), ruling on motion to stay, 22 PECBR 619 (July 25, 2008). Reversing ERB order to arbitrate and directing ERB to consider PSU's refusal to arbitrate under a different standard. The parties' collective bargaining agreement allowed PSU to decline to use the grievance process after a union member sought resolution of the same dispute in an administrative agency or court. ERB held that the provision was unlawfully discriminatory and invalid and ordered PSU to arbitrate. Court of Appeals held "in order to establish that PSU's reliance on [the provision] constitutes unlawful retaliation, the Association must show that [the provision] does something more than allow PSU to undertake such a defensive measure." The court further held that the "something more" must be "materially adverse" under the standard set forth in Burlington N. & S. F. R. Co.

• v. White, 548 US 53, 64, 126 S Ct 2405, 165 L Ed 2d 345 (2006).
• 30. Int'l Ass'n of Firefighters, Local 890 v. Klamath Cnty. Fire Dist. No. 1,
• No. UP-07-09, 23 PECBR 922 (Sept. 28, 2010).

ERB concluded that the arbitrator's order to destroy rescinded disciplinary records could not be lawfully enforced because it contravened public records regulations to maintain such records for three years. ERB ordered that the records be separately maintained and then destroyed at the expiration of the three-year period. (Gamson, Chair, dissenting.)

• 31. Portland Police Ass'n v. City of Portland, No. UP-05-08, 23 PECBR 856

(Aug. 12, 2010), appeal pending. The City refused to arbitrate over a directive by the board of the Portland Fire and Police Disability and Retirement Fund to its executive director on how to determine final pay for calculating retirement or disability payments. ERB held that the calculating methodology was an existing condition and that any change was subject to the parties' grievance arbitration procedure.

• 32. State of Oregon, Oregon State Hosp. v. AFSCME Local 3295, No. AR-01-08,

23 PECBR 712 (Apr. 14, 2010), aff'd without opinion, No. A145772, 244 Or App ___ (July 7, 2011). ERB enforced arbitration award awarding grievant back pay for lost wages (differential and overtime) during eight months on paid administrative leave pending an

• investigation. The grievance was filed only after the employee was reinstated with a

reprimand.

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• 33. Marion Cnty. Law Enforcement Ass'n v. Marion Cnty., No. UP-24-08,

23 PECBR 671 (Mar. 29, 2010). ERB enforced an arbitration award ordering reinstatement of a jail deputy who had mistreated inmates. The County had refused to implement the award based on the public-policy exception of ORS 243.706, applying the Oregon Supreme Court decision in Washington Cty. Police Assn. v. Washington Cnty., 335 Or 198, 63 P3d 1167 (2003). ERB interpreted the text of ORS 243.706(1), in light of Washington Cnty., to establish the following principles: "(1) This Board cannot enforce an arbitration award that violates public policy; "(2) A public policy sufficient to justify our refusal to enforce an arbitration award must be derived from statutes or judicial decisions; "(3) The public policy must be 'clearly defined' so that there can be no serious doubt about the content or import of the policy; "(4) The analysis must focus on whether the arbitrator's award violates public policy, and not on whether the employee's conduct does; and "(5) We will refuse to enforce an arbitrator's award of reinstatement only if there is a clear public policy against reinstating someone who acted as the grievant did." ERB concluded that no statutes or cases barred employment of a corrections officer who mistreated inmates. ERB effectively concluded that unless there is a statute or case that expressly bars reinstatement or employment, ERB will not bar the reinstatement. Timeliness

• 34. Rogue River Education Assoc. v. Rogue River School District No. 35,
• No. A139551, 244 Or App ___ (July 13, 2011), reversing UP-17-08, 22 PECBR 577

(June 20, 2008). Court of Appeals held that the discovery rule applies to the 180-day time limitation for filing unfair labor practice complaints, reversing the dismissal of a breach of complaint under ORS 243.672(1)(g). The court's holding relied on the application of the discovery rule to the filing of complaints under National Labor Relations Act at the time that the PECBA was enacted. The court also remanded the matter to ERB for factual findings as to whether the Association knew or should have known of the occurrence of the unfair labor practice more than 180 days prior to the filing of the complaint. The court rejected ERB's analysis that imputed the members knowledge to the Association.

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• 35. Oregon State Police Officers' Assn. v. State of Oregon, 240 Or App 419

(Jan. 12, 2011). Affirming ERB, the court held that the complaint alleging unilateral change was untimely when filed more than 180 days after change in working conditions actually occurred. The court did not decide whether the discovery rule applies or not, but ruled that even if it did apply, the limitations period runs from the date the Association "knew or reasonably should have known of the unlawful labor practice." Agreeing with ERB, the court held that the Association should have discovered the change in the exercise of reasonable diligence based on ERB's finding that "the change was fully implemented and the effects were fully apparent."

• 36. Oregon AFSCME Council 75, Local 3997 v. Deschutes Cnty., No. UP-032-09,

24 PECBR __ (May 26, 2011). In a challenge to a layoff, ERB ruled that the complaint was timely because it had been filed within 180 days of the actual layoff although more than 180 days after the employee was notified that she would be laid off. ERB has consistently applied its limitations period as running from the actual event and not from when notice is given. Dues deductions

• 37. Oregon AFSCME Council 75, Local 2503 v. Hood River Cnty., No. UP-11-08,

23 PECBR 287 (Aug. 14, 2009), appeal pending. The union accused the County of violating ORS 243.776, requiring a public employer upon an employee's request to deduct union dues and remit them to the union, and of interfering with the existence and administration of the union in violation of subsection (1)(b). The union adopted a new dues schedule for its bargaining-unit employees based on a percentage of an employee's salary plus $3. The County refused to implement the new dues schedule, saying that it would be prohibitively expensive ($32,000). ERB questioned the County's estimate but said regardless that costs cannot justify a refusal to comply with the request. ERB also rejected the County's argument that the new dues schedule was a change in the status quo. ERB noted that it has never imposed a bargaining duty on the union when it changes the status quo and that, in any event, there was no change in the status quo because the status quo is that the union dues were frequently changed. Benefit cases

• 38. James v. Clackamas County, No. A143772, 243 Or App 453 (June 15, 2011).

The court of appeals, reversing the trial court, held that the County's obligation to underwrite the medical benefits for management employees of the Sheriff's Office ceased when the fund established for that purpose was depleted. A retired

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management employee sued the County for reducing his retiree medical benefits. The court found that a "legislative" contract was created by the County board through an

• rdinance to fund the certain retiree medical benefits, which was made contingent on

adequate funding. The court noted that, unless an employment contract provides

• therwise, 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.

Furthermore, although the County created another fund for retiree medical benefits, the court held that it was a different fund that covered both management and staff and had a different funding mechanism.

• 39. Watkins v. Josephine County, No. A141306, 243 Or App 52 (May 25, 2011).

The court of appeals, affirming the trial court, held that the County could prospectively change the employment terms for nonunion staff. Specifically at issue were the employer PERS pick-up, a leave cash-in practice, the salary step schedule, and a "just cause" termination provision. Finding that the County ordinance creating the benefit package was a legislatively created contract, the court applied contract law principles. The court noted the general rule that an employer may prospectively change or eliminate a term of employment unless the promise was made to make such terms

• permanent. The court held that the County personnel rules, where the legislative

contract terms were found, did not create a promise of permanence and, indeed, expressly permitted their amendment or modification.

• 40. Doyle v. City of Medford, No. S057330, 347 Or 564 (Feb. 4, 2010) (on certified

question from Ninth Circuit). The City of Medford provided staff (Teamsters-represented and management) with insurance from the Oregon Teamsters Employees Trust (OTET), which was unavailable to retirees. Retirees could extend coverage under COBRA for 18 months and were then permitted to enroll in Oregon's Public Employees Retirement System Health Insurance Program. Retired employees challenged the City compliance with ORS 243.303. The certified question asked: "What amount of discretion does [ORS] 243.303 confer on local governments to determine whether or not to provide health insurance coverage to their employees after retirement?" 347 Or at 566. The disputed statute, ORS 243.303(2), provides: "The governing body of any local government that contracts for or otherwise makes available health care insurance coverage for officers and employees of the local government shall, insofar as and to the extent possible, make that coverage available for any retired employee of the local government who elects within 60 days after the effective date of retirement to participate in that coverage and, at the option of the retired employee, for the spouse of the retired employee and any unmarried children

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under 18 years of age. The health care insurance coverage shall be made available for a retired employee until the retired employee becomes eligible for federal Medicare coverage, for the spouse of a retired employee until the spouse becomes eligible for federal Medicare coverage and for a child until the child arrives at majority, and may, but need not, be made available thereafter. The governing body may prescribe reasonable terms and conditions of eligibility and coverage, not inconsistent with this section, for making the health care insurance coverage available. The local government may pay none of the cost of making that coverage available or may agree, by collective bargaining agreement or otherwise, to pay part or all of that cost." (Emphasis added.) The supreme court interpreted the certified question as focused on the meaning of the phrase "shall, insofar as and to the extent possible" in the statute. The supreme court held that the City lacked total discretion to purchase insurance lacking retiree coverage, but there was not "an absolute mandate, subject only to an exception for actual impossibility," to provide such coverage. The court held that "determining whether a local government has demonstrated that it should be excused from making health insurance coverage available to retirees will depend on the facts of each case." 347 Or at 579.

• 41. Doyle v. City of Medford, No. 07-35753, 606 F3d 667, 675-76 (9th Cir May 26,

2010). Upon receipt of the supreme court's answer, the Ninth Circuit held that there was no property interest and no basis for a Section 1983 action under this statute: "[S]ection 243.303 does not create a protected property interest because 'insofar as and to the extent possible' is not a particularized standard, because the nature and extent of the entitlement that section 243.303 allegedly creates are too indeterminate, and because the statute allows local governments extensive functional discretion." Oregon Interest Arbitration Awards (2009-2011)

• 42. City of Milwaukie and Milwaukie Police Emps. Ass'n, No. IA-08-10 (June 15,

2011) (D. Stiteler, Arb.). Award: Employer's Last Best Offer Issues: CPI formula, insurance premium split, premium pay for canine, SWAT, and Tri- Met assignments. Although finances were tight, ability to pay was not a factor. Recruitment or retention was not a problem facing the department. The decision focused on the costs of the two

• packages. From the City: 1 percent COLA for July 2010, 1-3 percent COLA in

July 2011, and maintaining the 85-15 percent insurance premium split between employer and employees. The Association proposed a 3-6 percent COLA for both years, premium pay enhancements, change in the insurance premium split to 95- 5 percent, and double the accrual of compensatory time off. The arbitrator found that

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the City's package would put the police at 0.5 percent above the average of the comparators and the Association's package 3.4 percent above. The arbitrator did find that the City's 85-15 percent split in insurance premiums was, by itself, in excess of what was paid by others in the City. The arbitrator concluded that "in the current economic context" there was no reason "to move the City that far over market" and that the Association's total package was "simply too much." The award is also notable for its comments about the presumed preference for the "status quo" and its analysis of the proper comparators. The arbitrator rejected Wilsonville because it was served by County sheriff's deputies and not its own police force and considered geographic proximity. Contract expired: June 30, 2010 Hearing held: April 11 and 12, 2011

• 43. State of Oregon, Oregon Military Dep't and Portland Air Nat'l Guard, No. IA-

03-10 (Jan. 31, 2011) (K. Boedecker, Arb.). Award: Union's Last Best Offer Issues:

• Wage adjustments: Both parties proposed no across-the-board wage

adjustment during the two-year contract term and agreed on furlough days.

• Salary scale: The union proposed a revised salary schedule based on years
• f service, and the state proposed a rollback of one salary grade on a salary

scale based on "salary selectives."

• Minor difference over premium for haz-mat technician.

Arbitrator's analysis: The arbitrator concluded that the federal government funds wages for the firefighters and that wage increases would have no effect on the state's general fund. The arbitrator rejected the union's threat of future litigation over allegedly confusing aspects

• f the employer's proposal.

There were "retention problems" because 6 firefighters out of a unit of 19 had left the unit to work at other departments. Under her comparability analysis, the arbitrator concluded that she may consider rates paid in other states and other Oregon

• communities. The arbitrator rejected the employer's proposed state comparators and

used the union's local comparators, as did a prior arbitrator. She determined that the state's proposal would result in a 4.48 percent wage reduction (a rollback of one salary step) when the cost of living increased by 2.6 percent.

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Contract expired: June 30, 2009 Hearing held: July 6, August 6 & October 25, 2010

• 44. City of Beaverton and Beaverton Police Ass'n, No. IA-05-10 (Nov. 12, 2010)

(K. Whalen, Arb.). Award: Employer's Last Best Offer Issue: Premium pay for newly created special assignment of professional standards ("PS") sergeant. A newly hired police chief created the position to assist the PS lieutenant in undertaking internal affairs investigations. The sergeant had generally performed internal affairs investigations during his regular work hours. The arbitrator applied the secondary statutory factors, noting that ability to pay, attracting or retaining candidates, and the cost of living did not apply. The parties differed over the internal analysis of other premiums, the contract terms, and comparables. The arbitrator rejected the union's argument that the PS sergeant should be paid a premium like the detective sergeants, finding that duties differed and that the PS sergeant was not subject to call-out or responding to a pager. Contract expired: midterm contract modification Hearing held: July 23, 2010

• 45. State of Oregon, Dep't of Corrections (Security Unit) and AFSCME, No. IA-09-

09 (May 23, 2010) (M. Cavanaugh, Arb.). Award: Employer's Last Best Offer Issues in dispute:

• Step freeze and one-year rollback of step increases proposed by state and

rejected by union: The arbitrator noted significant cost savings between $2.8 million (union estimate) and $4 million (state estimate).

• Forfeiture of holiday pay plus four furlough days (state) with a competing

union proposal including employee selection. The arbitrator (a) could not determine whether one proposal was more costly than the other, but (b) found "simplicity and operational advantages inherent in the state's proposal" superior. The award was based on the primary criterion of "interest and welfare of the public" without pursuing other criteria. The arbitrator emphasized state's budgetary problems and that other state units had agreed to these proposals. Contract expired: June 30, 2009 Hearing held: April 5 & 6, 2010

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• 46. State of Oregon, Dep't of State Police and Oregon State Police Officers Ass'n,
• No. IA-08-09 (Apr. 1, 2010) (T. Williams, Arb.).

Award: Employer's Last Best Offer Issues: Reductions in compensation through step freeze and furlough days and an Association proposal about bargaining-unit work. Arbitrator's "multi-point analysis" notes:

• Costing is imprecise, recognizing that it is inherent in process.
• Cost-of-living and comparability criterion is not useful.
• Primary criterion of interest and welfare of the public "is best served by an

award that has the least chance of resulting in a layoff of employees from this bargaining unit."

• Criterion of reasonable financial ability to pay recognizes the "priorities of the

unit of government," that legislature placed an emphasis on OSP's providing 24/7 coverage, and that this reinforces his conclusion from the interest and welfare criterion that the best offer is one that avoids layoffs.

• State's proposal "leaves more money in the available pot."
• State's furlough proposal may not save money because of potential offset of
• vertime to backfill additional time off.
• Association's proposal about expanding bargaining-unit work would cost the

department and would undermine 24/7 coverage on the highways. Arbitrator conclusion: "The Arbitrator is convinced that the State's total package results in less financial demand on the available money and does so without excessive harm. As such it is more likely than the Association's total package to avoid workforce reduction and to permit 24/7 coverage." Contract expired: June 30, 2009 Hearing held: February 8 & 9, 2010

• 47. City of Sutherlin and Sutherlin Police Officers Ass'n, No. IA-04-09 (Dec. 14,

2009) (W. Greer, Arb.). Award: Association's Last Best Offer Issue: Grievance procedure—the expired contract included a pre-arbitration panel of two members appointed by the Association and two by the City. The Association proposed making the panel's decision nonbinding. The City proposed going directly to arbitration on discharge decisions.

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Analysis: The arbitrator found the process flawed because there were no qualifications for panel members, the Association had difficulty finding other officers to sit on panels, and Association designees generally were not paid, among other considerations.

• 48. Marion Cnty. and Marion Cnty. Law Enforcement Ass'n, No. IA-14-08 (Aug. 17,

2009) (K. Fitzsimon, Arb.). Award: Employer's Last Best Offer Issues: Insurance cost-sharing and cost of living (County proposed 2.13 percent, 0 percent, and 2 percent and Association 3 percent, 6 percent PERS pickup, and CPI). Analysis: Turned on the County's inability to pay the estimated $1.7 million additional cost of the Association proposal that would result in layoffs of 21 to 34 FTEs (depending

• n the cost-of-living increases). The arbitrator concluded that all other secondary

factors favored the Association's proposal. Contract expired: June 30, 2008 Hearing held: May 20, 2009

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