The Good, the Bad and the Ugly: 6th annual review of Recent Oregon - - PDF document

The Good, the Bad and the Ugly: 6th annual review of Recent Oregon Public Sector Labor Cases Oregon Public Employer Labor Relations Association May 4, 2016 Presented by Jeffrey P. Chicoine

www.millernash.com jeffrey.chicoine@millernash.com

TABLE OF CONTENTS Page

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I. REPRESENTATION CASES ........................................................................................................1 A. Employee status ....................................................................................................................1 B. Fragmented unit....................................................................................................................1 II. JURISDICTION AND STANDING IN ULP CASES..............................................................2 III. INTERFERENCE & DISCRIMINATION.................................................................................3 IV. DUTY TO BARGAIN IN GOOD FAITH ................................................................................4 A. Mandatory subjects of bargaining / Unilateral change....................................................4 B. Requests for information.....................................................................................................6 C. Bad-faith bargaining: Totality of conduct ........................................................................7 V. DUTY OF FAIR REPRESENTATION.......................................................................................7 VI. HEARING PROCEDURES ...........................................................................................................8 VII. ARBITRATION.................................................................................................................................9 VIII. ERB'S PRACTICE WHEN NEITHER PARTY FILES AN OBJECTION TO A RECOMMENDED ORDER..........................................................................................................9 IX. INTEREST ARBITRATION AWARDS....................................................................................10 X. OTHER COURT CASES...............................................................................................................11

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I. REPRESENTATION CASES A. Employee status 1. AFSCME v. Multnomah Cnty., No. UC-005-14, 26 PECBR 467 (May 8, 2015) The union sought to clarify the unit, directing that an administrative assistant to the county's benefit manager was not confidential and was part of the bargaining unit. ERB agreed, explaining its reasoning as follows: "Here, the record establishes that Sonne provides assistance to Daly, the current Benefits Manager. As of the hearing, Sonne had provided that assistance for about three months. Although Daly effectuates management policies with respect to employee benefits, a key aspect of collective bargaining, she does not formulate and determine management policies in this area. Specifically, Daly does not serve as a member of the County's collective bargaining team, and the record does not establish that she makes substantive decisions on what direction the County's negotiating team should take during bargaining. Rather, the evidence establishes that Daly's role is largely limited to implementing (i.e., effectuating) whatever benefits-related decisions are made by other County officials." Slip op at 7. 2. Hillsboro Sergeants' Ass'n v. City of Hillsboro, No. CC-009-14, 26 PECBR 491 (July 10, 2015) Petitioner sought recognition of a new bargaining unit of sergeants in the city's police department. ERB dismissed the petition, finding that the sergeants were supervisors because they had authority to assign work, applying a three-part test. Relying on the standard used by the National Labor Relations Board, ERB held that "assignment of an employee to a certain department, to a certain shift, or to certain overall tasks all generally qualify as 'assign' within our construction." Slip op at 5 (internal quotation marks and citation omitted). ERB also found that in making such an assignment, a sergeant exercises "independent judgment" and does so in the interest of management. B. Fragmented unit 3. AFSCME Council 75 v. Douglas Cnty., No. CC-004-14, 26 PECBR 354 (Feb. 4, 2015) ERB ruled that a bargaining unit of full-time and regular part-time employees in the Douglas County Assessor's Office was an appropriate unit under ORS 243.682(1)(a) and OAR 115-025-0050. The county argued that the proposed unit (1) did not have a clearly distinct community of interest required to create a bargaining unit of a portion of a group of unrepresented employees, and (2) would unduly fragment the county's workforce. ERB applied the standard community-of- interest analysis, and this case presented an interesting twist. The assessor, who is an elected official,

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had a separate set of workplace rules unique to his office that were not followed elsewhere in the county and did not follow the county rule requiring for-cause discharge. ERB gave "particularly great weight to the unique working conditions (set forth above) of the petitioned-for unit." ERB rejected the undue-fragmentation argument, noting that four units were already organized along departmental lines. ERB also declined to apply the "four-part test" from Laborers' Int'l Union of

• N. Am., Local 320 v. City of Keizer, No. RC-37-99, 18 PECBR 476, 483-84 (2000), stating that it was

simply a listing of four factors that it considers in reviewing departmentwide petitions. ERB took the curious stance to "reject and disavow" an expansive reading of that case. In Laborers' Int'l, ERB ordered the creation of a small unit of utility workers and summarized its case law as stating that it "may conclude that a separate department bargaining unit is appropriate where: (1) employees in the proposed bargaining unit have working conditions that are significantly different from those of

• ther personnel employed by the employer; (2) the department in

which the employees work is self-contained and clearly separate from

• ther employer operations; (3) the employees desire a separate

bargaining unit; and (4) designation of the unit would not lead to undue fragmentation." 18 PECBR at 484. II. JURISDICTION AND STANDING IN ULP CASES 4. Bell v. TriMet and Bargaining Unit Pension Plan, No. UP-043-13, 26 PECBR 616 (Jan. 29, 2016), adhered to on reconsideration, 26 PECBR 660 (Mar. 8, 2016) Bell was employed as a tire service worker for TriMet when he retired. Bell was initially employed by private contractors (first Firestone and then Goodyear), which provided tire service for TriMet. In 1991, TriMet absorbed the tire service operation and staff, including Bell. Bell claimed that his TriMet pension did not correctly credit him with past service. The pension was administered by a joint union-management trust. Bell brought an unfair-labor-practice claim against TriMet and the pension plan. ERB dismissed both defendants for lack of jurisdiction:  The plan was neither a public employer nor an exclusive representative, and ERB concluded that it lacked jurisdiction over the plan.  Bell failed to satisfy the prerequisites for bringing a breach-of-contract claim against an

• employer. Bell should have filed a grievance and then, if the union failed to pursue the

grievance, brought a hybrid claim for breach of the duty of fair representation against the union and breach of contract against the employer.

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Notwithstanding lack of jurisdiction, ERB addressed the merits and concluded that there was no showing that TriMet had failed to satisfy its limited obligation under the collective bargaining agreement, which was to fund the plan. Interestingly, ERB took interlocutory review on the ALJ's ruling to enforce a prehearing subpoena

• rdering production of communications between union trustees and their attorneys. ERB reversed

the ALJ ruling that such communications were protected from disclosure. On reconsideration requested by the plan, ERB explained that it equated disputes over pension benefits provided by a third-party trust to disputes over health insurance coverage or claims handled by a third-party insurance company. 5. DCTU v. City of Portland, No. UP-23-14, 26 PECBR 525 (Nov. 25, 2015) This case focused on the City's obligation to bargain over the installation of GPS tracking devices on city vehicles. ERB concluded that DCTU was the exclusive representative of city employees and had standing to bring this complaint. ERB also concluded that the complaint was timely in that it has been filed within 180 days of the city's response to a union demand to bargain over the effects, contending that it was a permissive subject of bargaining. III. INTERFERENCE & DISCRIMINATION 6. AFSCME Council 75 v. City of Lebanon, 265 Or App 288, rev allowed, 356 Or 638 (2014) (oral argument held) Reversing ERB, the court of appeals held that the city could not be held responsible for statements by a city councilor in an open letter sent to the local paper. She had identified herself as "City Councilor, Ward 2," and had called on union workers of the city to decertify the union. The court first reasoned that she was neither a public employer nor a "designated representative" of a public employer as those terms are defined in the PECBA. The court also concluded that she had not been the common-law agent or apparent agent of the city when making those statements. She made it clear that she was speaking for herself and specifically disavowed that she was acting on behalf of the city or council. 7. Portland State Univ. Chapter Am. Ass'n of Univ. Professors v. Portland State Univ., No. UP-013-14, 26 PECBR 438 (Apr. 17, 2015) ERB concluded that the University had violated the "in the exercise" prong of section (1)(a) by publishing its strike FAQs two days before the strike vote. The University stated that it planned to terminate access to striking employees of all electronic services that the University provided to

• faculty. The University explained that it would disable their ODIN single sign-on account and that

this would result in, among other things, loss of access to University e-mails. At the same time, the University explained that it was barring faculty access to nonpublic areas of campus.

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The University argued that it was lawfully barring striking employees from its electronic workplace just as it was barring striking employees from its nonpublic physical workplace. ERB did not address whether such restrictions were lawful and stated that even if they were, the University had still violated the "in the exercise" prong. 8. LIUNA v. Metro, No. UP-030-14, 26 PECBR 665 (Mar. 23, 2016) ERB held that Metro violated ORS 243.671(1)(a) by prohibiting union members from wearing stickers with a fisted paw emblazoned with the word "zoolidarity" on their uniforms when interacting with the public. Applying and following private-sector precedent, ERB ruled that the employer had satisfied neither of the special circumstances that it relied on in justifying the ban, which were the effect on public safety or interfering with its public image. IV. DUTY TO BARGAIN IN GOOD FAITH A. Mandatory subjects of bargaining / Unilateral change 9. AFSCME Council 75 v. City of Portland, 276 Or App 174 (2016) The court of appeals reversed and remanded the case to ERB for further consideration. ERB had ruled that an employer's charging of fees for union record requests was not a mandatory subject of

• bargaining. The court reasoned that ERB's decision failed to provide "substantial reason" for

rejecting the union's contention that the subject concerned grievance procedures, which is a mandatory subject of bargaining. 10. Portland Fire Fighters Ass’n v. City of Portland, No. UP-059-13, 26 PECBR 548 (Dec. 2, 2015), appeal pending The union asserted various unfair labor practices on the part of the city, including unilateral changes in operations and promotion practices. ERB agreed with the city that the parties had bargained to completion over the operational changes, permitting the city to implement the changes as proposed. The operational changes involved use of rapid-response vehicles, "quints" (hybrid apparatuses that carry water and ladders), position eliminations, and work reassignment. The city had given notice of several changes it wanted to implement, met with the local president multiple times, and engaged in various exchanges of proposals and concepts, and both parties ultimately yielded on their initial positions. Over the union's objection, ERB concluded that the parties had reached agreement about the changes and the retraction of plans to lay off 26 fire fighters. ERB rejected the union's contentions that these informal discussions did not constitute bargaining. As ERB noted, had the union not been bargaining, it would have waived its right to bargain by either not demanding to bargain over the proposed changes once it had notice or not diligently pursuing bargaining.

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Member Weyand dissented, emphasizing that neither party had characterized their interactions as collective bargaining, although the city witnesses claimed that a deal had been reached. Weyand, however, did not address the waiver argument. On another issue, ERB concluded that the city had made a unilateral change when the fire chief passed over the highest-ranked person on a promotion list for senior inspector. ERB first concluded that the subject of the dispute was a promotion and a mandatory subject of bargaining. The city argued that the fire chief had discretion on whom to promote among eligible employees. ERB agreed with the union that the past practice had been that the fire chief's review was limited to determining on a pass-fail basis whether the listed individual was qualified for promotion. ERB considered the history of promotions and a 2008 grievance settlement. ERB also concluded that the city had violated a past practice of using a ranked list for promotion to battalion chief. ERB rejected the city's contention that a 2011 personnel rule had changed the status

• quo. The rule only identified two types of promotion lists, a ranked list and "an equally ranked list."

The rule did not "expressly state whether the Bureau may or may not use" either list. ERB noted that the department had previously and since the rule adoption used the ranked-list method. 11. DCTU v. City of Portland, No. UP-23-14, 26 PECBR 525 (Nov. 25, 2015) ERB concluded that there were mandatory effects to bargain when the city installed GPS tracking devices on its vehicles. "Although the City avers otherwise, there can be little dispute that the installation of GPS devices has some impact on a mandatory subject

• f bargaining. Specifically, at a minimum, the installation of the GPS

devices impacts the mandatory subject of discipline. The City itself has provided multiple examples of situations where GPS devices had been utilized in employee investigations and disciplinary actions. Disciplinary standards and procedures are mandatory subjects of bargaining." ERB also concluded that the GPS tracking system had an effect on safety and so was subject to mandatory bargaining for that reason as well. The ERB majority also dismissed the city's waiver argument based on the fact that it had GPS tracking devices on some vehicles dating to 2009 because the demand had been made during successor negotiations: "The City's letter informing DCTU of the City's GPS installation decision, and DCTU's demand to bargain the mandatory impacts of that decision, both took place during successor negotiations. Any prior decision by DCTU as to whether it wanted to bargain over GPS-related matters in prior contracts does not foreclose DCTU's

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ability to do so in this successor negotiation. If the City was correct, a labor organization would be unable to bargain over any mandatory subject that was not bargained over in an initial contract. Although there are certainly limitations that apply during the term of a contract

• nce bargaining has been completed, those limitations do not apply
• nce a new round of successor negotiations has begun. In short,
• nce the parties began successor negotiations, DCTU was entitled to

demand to bargain over any mandatory subject of bargaining, regardless of whether it had elected to demand bargaining over that subject in prior contracts. Once that demand was issued, the City was obligated to bargain." A vigorous dissent from Chair Logan focused on: (1) this case had been presented and litigated as a unilateral-change case and not a refusal-to-bargain case, (2) the demand to bargain over these effects had risen after the parties' ground rules closed off the introduction of new issues, and (3) the majority bypassed the need to determine what was the status quo. 12. Oregon Health Auth. v. SEIU Local 503, No. UP-004-16, 26 PECBR 678 (Mar. 28, 2016) In bargaining for adult foster care workers, ERB held permissive a management proposal over the union's sharing the administrative costs of developing and implementing dues deductions. The workers are paid directly by the state depending on the level of care required. The payments are not treated as wages subject to deductions and are not treated as payroll or issued through a payroll

• system. ERB noted that the bargaining status of dues deductions has been a nonissue under the

PECBA because separate statutory provisions mandate deductions upon a written request from an

• employee. See ORS 243.776, 292.055(1). But these statutory provisions do not apply to adult foster

care providers because they are not employees. ERB easily concluded (1) that dues deductions was not over a "direct or indirect monetary benefit" (it is a cost, not a benefit) and (2) that dues deductions does not address any other "condition of employment." B. Requests for information 13. Jackson Cnty. v. SEIU Local 503, No. UP-027-14, 26 PECBR 501 (Aug. 11, 2015) The county reopened the contract to bargain a revised health insurance program and asked the union to provide insurance-rate quotes that it had obtained. ERB rejected the county's contentions that the union had failed to provide information in a timely manner and conditioned its release on certain concessions. ERB first found that the county had asked for the information on May 6, that the union had received the information on June 2, and that the union had provided a copy to the county on June 3. ERB reasoned that the union could not provide information that it did not have and that the union had turned over the information upon receipt. ERB also found no evidence that the union had delayed in requesting the information, that the union had caused its agent to delay producing the

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information, or that the union had conditioned release of the information on receiving certain bargaining concessions from the county. While the union had expressed reluctance upon turning

• ver all the information and questioned how the county intended to use it, ERB focused on the fact

that the union had indeed turned over all the information requested the day after receiving it. C. Bad-faith bargaining: Totality of conduct 14. Jackson Cnty. v. SEIU Local 503, No. UP-027-14, 26 PECBR 501 (Aug. 11, 2015) ERB rejected the county's claim for bad-faith bargaining based on the union's alleged refusal to respond to the county's proposal. ERB noted that the union had responded by rejecting the proposal (several times), proposing that the unit join the manager's plan, and urging the county to

• ffer a self-insurance proposal. Rejecting a proposal is not evidence of bad-faith bargaining. And

although the union's counters were "not particularly developed or collaborative," the union did offer "a general framework for subsequent negotiations." Slip op at 8. V. DUTY OF FAIR REPRESENTATION 15. Block v. ATU, No. FR-001-15, 26 PECBR 486 (June 25, 2015) A former union officer brought claim against the union for entering into a memorandum of agreement ("MOA") that changed the process of selecting assignments by bus drivers. ERB first noted that the complaint alleged a breach of the union's duty of fair representation and should have been brought under ORS 243.672(2)(a), but was brought under the wrong section. Although not alleging a violation of that proper section, ERB treated the complaint as if it had alleged the proper section in light of the complainant's proceeding pro se, noting that it commonly does so in duty-of- fair representation cases. ERB then considered the merits of the complaint and dismissed the complaint. ERB noted that the complaint was based on allegations that the MOA contradicted the terms of the parties' collective bargaining agreement ("CBA") and past practice, that the CBA had been ratified by the membership, and that the union bylaws had been contravened by the union leadership's agreeing to the MOA without a membership vote. ERB concluded that even if the allegations were true, it would not establish a breach of the union's duty of fair representation. ERB emphasized that there was no allegation of bad faith, discriminatory behavior, or other improper motives on the part of union

• leadership. ERB emphasized that it had repeatedly ruled that violation of a contract or bylaws does

not establish a breach of the duty, nor does opposition by or harm to some group of members. As ERB noted, when dealing with seniority-related issues, some employees will always be disadvantaged.

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VI. HEARING PROCEDURES 16. AFSCME v. Multnomah Cnty., No. UC-005-14, 26 PECBR 467 (May 8, 2015) The union failed to exchange exhibit and witness lists within the time frame designated in the ALJ's prehearing letter. ERB ruled that the ALJ acted properly within his discretion (1) in declining to receive the testimony of the union's witnesses and in declining to receive the union's exhibits into the record; and (2) in directing that the employee currently holding the position must testify because this matter involved the statutory status of an employee and because there was no burden of proof in such matters. 17. Jackson Cnty. v. SEIU Local 503, No. UP-027-14, 26 PECBR 501 (Aug. 11, 2015) Because the union failed to file an answer, the union was precluded from offering evidence at the hearing and restricted to making legal argument. 18. DCTU v. City of Portland, No. UP-23-14, 26 PECBR 525 (Nov. 25, 2015) ERB affirmed the ALJ's evidentiary ruling that some of the 600 pages of rebuttal testimony had been properly excluded because they were not designated as exhibits. "We disagree with the city's assertion that it could not reasonably have foreseen that DCTU's case would include this issue. Permitting the introduction of exhibits in this fashion would defeat the purpose of requiring the prehearing exchange of exhibits as part of an orderly hearing process." 19. Sofich v. Salem Fire Fighters Ass’n and City of Salem, No. FR-003-14, 26 PECBR 637 (Feb. 26, 2016) appeal pending ERB excluded the surreptitious recording of the step 2 grievance meeting addressing his dismissal applying ORS 41.910(1). That evidence rule provides that "[ e ]vidence of the contents of any wire or

• ral communication intercepted . . . [i]n violation of ORS 165.540 shall not be admissible in any court of

this state.” ORS 165.540 bars recording of in-person conversations unless, among various exceptions, all participants are informed the conversation is being recorded or it is public meeting. ERB found neither of these two exceptions applied. ERB also excluded the decision of the Employment Department granting unemployment compensation. ERB ruled the statement in ORS 657.273(2) that such decisions “[ a]re not admissible as evidence in any

• ther civil action or proceeding" to unambiguously apply to ERB. And, it rejected the argument that the

union had opened the door to its admissibility by considering it in deliberations not to arbitrate the employee’s dismissal.

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VII. ARBITRATION 20. Portland Police Ass’n v. City of Portland, 275 Or App 700 (2015) The court of appeals enforced an arbitration award (Jane Wilkinson), reinstating Officer Ronald Frashour after his termination for the shooting of Aaron Campbell. The award found no misconduct on the part of the police officer despite shooting into Mr. Campbell's back as he was moving away from the officer after being shot with six beanbag rounds. Based on the city’s argument, the court focused on the arbitrator’s finding that there was no misconduct. The court examined the text of ORS 243.706(1) and rejected the city's argument that the arbitrator's judgment that there was misconduct was subject to a public-policy review. The court discounted floor testimony by one of the cosponsors of the legislation that supported that argument, saying that legislative intent is best determined by the legislation itself. The public-policy analysis, by the plain language of the statute, is applied only to the award and not the underlying conduct. VIII. ERB'S PRACTICE WHEN NEITHER PARTY FILES AN OBJECTION TO A RECOMMENDED ORDER When neither party objects to a recommended order, ERB will now generally adopt the recommended order as its final order without reviewing the rulings or conclusions. Clackamas Cnty. Peace Officers Ass'n & Atkeson v. City of West Linn, No. UP-014-13, 26 PECBR 1 (2014); Int'l Bhd. of

• Elec. Workers, Local Union No. 659 v. Eugene Water & Elec. Bd., No. UP-008-13, 25 PECBR 901

(Jan. 14, 2014). This past year, ERB adopted the ALJ's order without review in the following cases:  State of Oregon, Oregon Health Auth. v. Serv. Emps. Int'l Union, Local 503, OPEU, No. AR-001- 14, 26 PECBR 403 (Mar. 5, 2015): ERB enforced an arbitration award of Timothy Williams reinstating an employee who had used physical force in an unauthorized manner with a patient during a behavioral incident. 

• Serv. Emps. Int'l Union, Local 503, Oregon Pub. Emps. Union v. State of Oregon, Dep't of Revenue,
• No. UP-006-14, 26 PECBR 415 (Mar. 16, 2015): State breached prior settlement and board
• rder enforcing that settlement.



• Serv. Emps. Int'l Union Local 503, OPEU v. Lane Council of Gov'ts, No. UP-012-14, 26 PECBR

454 (Apr. 30, 2015): ERB upheld termination rejecting argument that employee was terminated for participating in bargaining.  911 Prof'l Commc'ns Emps. Ass’n v. City of Salem, No. UP-022-14, 26 PECBR 509 (Oct. 5, 2015): The city violated ORS 243.672(1)(e) when it unilaterally changed the status quo by changing the overtime sign-up procedure from a remote electronic system to an on-site paper system.

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 Medford Sch. Dist. 549 v. Medford Educ. Ass’n, No. UP-039-14, 26 PECBR 572 (Dec. 14, 2015): Alleged misinformation by union to members is not subject to the same standard as applied to employer communications. Mediation when directed by ERB in a final order as a remedy is not subject to per se rules barring a new proposal. Rather, ERB applied the "totality of the conduct" standard on evaluating bad-faith bargaining.  OLCC Peace Officers Ass’n v. OLCC, No. RC-002-15, 26 PECBR 589 (Jan. 7, 2016): The ALJ concluded that a unit of inspectors and enforcement technicians employed by OLCC was not an appropriate bargaining unit. The ALJ rejected the argument that the group consisted

• f strike-prohibited employees.

 Int’l Union of Operating Eng'rs, Local 701 v. Wheeler Cnty., No. UP-010-15, 26 PECBR 687 (Apr. 25, 2016): The county committed multiple unfair labor practices when laying off all but one road department employee and withdrawing recognition. IX. INTEREST ARBITRATION AWARDS 21. Lincoln City / Lincoln City Police Emps. Ass’n, No. ME-17-14L IA (Oct. 6, 2015) (David Gaba)—union award Arbitrator awarded the union package because the city proposal on mandatory ORPAT was too

• nerous and novel and the relationship between ORPAT and being a successful police officer was

not established. The arbitrator concluded that the city's proposals were more appropriate than the union's on three other subjects: wages and benefits, status quo in response time, and residency

• restrictions. The arbitrator noted that the city had "bought" the response time and residency

restrictions for recent hires and that the union was not offering any countervailing concession. 22. Multnomah Cnty. / Fed'n of Or. Parole & Probation Officers, No. IA- 08-14 (Mar. 27, 2015) (Ross Runkel)—union award The parties' differences were over two articles: shift and work assignments and compensation. The union proposed the status quo based on seniority for work assignments, and the employer sought substantial flexibility to meet operational needs while enhancing professional development of the

• employee. On wages, the union sought enhancement permitting multiple training premiums,

longevity pay based on county service, not time in the classification, and paid leave to count as hours worked for determining overtime premiums. The arbitrator reviewed each proposal under the statutory criteria. On the assignment article, he focused on the recent adoption of the existing language and noted that the county showed no evidence of "changed circumstances" justifying a revision. The arbitrator concluded that while the secondary factors (primarily comparability) favored the county, the primary factor of interest and welfare of the public "weighs heavily" in favor of the union.

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The arbitrator found that the current language provided a "rough form of equity" and that the union had shown no need for a change. On longevity, the arbitrator looked to comparable employers, which he concluded supported a change to county service as the appropriate measure. The arbitrator concluded that the current language for overtime was preferable and that the union had not shown a significant justification for a change. The arbitrator awarded the union's last best offer, however, based entirely on the importance of the assignment issue. 23. City of Eugene / Eugene Police Emps.’ Ass'n, No. IA-05-14 (Jan. 26, 2015) (Joseph L. Daly)—union award Employer proposed to implement what were effectively 12-hour workdays on an 84-hour two-week work cycle under the FLSA 7(k) exemption. The arbitrator ruled that the employer bore the burden of proof on a reasonable-ability-to-pay

• argument. The arbitrator found that the city's budget reserve would not be harmed by the added

expense of the union package and that the 7½ percent reserve (less an additional amount of $1.2 million paid to cover the association proposal) was adequate. It would not affect the bond rating or place the city in jeopardy. An employer must show a "compelling reason for a change" to historical benefits—in this case, a shift to a 12-hour schedule. The arbitrator declined to order the schedule change, saying that such a dramatic change is better negotiated. The arbitrator relied on testimony about the negative effects

• f 12-hour days from a psychological expert and adopted her views in his ruling.

X. OTHER COURT CASES 24. Hardy v. Lane Cnty., 274 Or App 644 (2015), rev allowed, 358 Or 550 (2016) The court of appeals reversed the trial court's dismissal of a claimed violation of public-meeting laws by county commissioners. The court found cognizable a claim that the agency had violated public- meeting requirements, such as notice and minutes, based on a series of one-on-one voice or electronic communications by the commissioners.

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25. TriMet v. Amalgamated Transit Union Local 757, 276 Or App 513 (2016) The court of appeals vacated and remanded the trial court ruling that a bargaining session was not a public meeting open to the media and public in light of Hardy v. Lane Cnty. The court of appeals did approve of the trial court’s rulings that: (1) the statute did not require the district to conduct labor negotiations in open meetings; (2) the convening of the district's negotiating team to bargain with the union was not a convening for which a quorum was required, and thus collective bargaining sessions were not “meetings” under the statute; and (3) negotiating teams of district and union were not an “advisory group” that qualified as a single “governing body,” and thus bargaining sessions between teams were not meetings for which a quorum was required. The court held that the bargaining sessions needed to be examined under Hardy's expanded definition of what constituted a public meeting. 26. Hicks v. Central Point Sch. Dist., 270 Or App 532, rev denied. 357 Or. 743 (2015) When contracting out student bus transportation, the school district violated the 2009 amendment to the state public contracting code, requiring a cost comparison between the cost of performing work in-house and by outside contractor for contracts over $250,000. See ORS 279B.033. The court of appeals held that the law required the district to use an estimate of the outside provider's wage and benefit costs and that the district’s assumption that wages and benefits would remain the same did not satisfy this requirement. The amendment bars the contracting out if the “sole reason” for the cost savings arises from the lower wages and benefits. Id. 27. Multnomah Cnty. Sheriff’s Office v. Edwards, 277 Or App 540 (2016) The court affirmed a ruling of the Bureau of Labor and Industries ("BOLI") that the sheriff’s office had not properly applied a veterans’ preference under ORS 408.230(2)(c) in a promotional process to sergeant from deputy. That subsection applies to an unscored application examination. BOLI determined and the court agreed that that subsection requires that the preference be applied at “each stage of the application process.” 277 Or App at 545, 549. Further, the court agreed with BOLI that the sheriff’s office was required both to give a preference and to devise and apply a method for giving that particular preference. 277 Or App at 556. Affirming BOLI, the court held that the sheriff’s office had neither devised nor applied a coherent preference at each stage.