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The Good, The Bad, and The Ugly: 7th Annual Review of Recent Oregon - - PDF document
The Good, The Bad, and The Ugly: 7th Annual Review of Recent Oregon - - PDF document
The Good, The Bad, and The Ugly: 7th Annual Review of Recent Oregon Public Sector Labor Cases Oregon Public Employer Labor Relations Association May 24, 2017 Presented by Jeffrey P. Chicoine www.millernash.com jeffrey.chicoine@millernash.com
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1 I. EMPLOYMENT RELATIONS BOARD DECISIONS A. STANDING 1. ILWU Local 8 v. Port of Portland, No. UP-037-14, 26 PECBR 818 (Dec. 8, 2016), on remand from 279 Or App 157, 379 P3d 1172, rev den, 360 Or 422 (2016), rev'g 26 PECBR 350, adhered to on recons 26 PECBR 395 (2015), petition for review pending On remand, ERB adhered to its prior conclusion that the case should be dismissed because there was no issue of law or fact that warranted a hearing. The Port employed no Local 8 members. The court of appeals had ruled that ERB improperly cited the law of the case doctrine when relying on its findings in a prior case between the two parties. On remand, ERB withdrew its reliance on the law of the case doctrine but adhered to its decision to dismiss the complaint. B. INTERFERENCE 2. Oregon AFSCME Council 75, Local #2043 v. City of Lebanon, 360 Or 809, 388 P3d 1028 (Feb. 2, 2017), rev'g 265 Or App 288, 336 P3d 519 (2014)¸ rev'g and remanding, No. UP-014-11, 24 PECBR 996 (2012) ERB ruled that the City of Lebanon interfered with protected rights when a City Councilor published a letter in the local newspaper expressing her personal opinion disparaging labor unions and advocating for decertification. The court of appeals reversed, concluding as a matter of law that the councilor was not a designated representative of the city. The Supreme Court reversed the court
- f appeals and remanded the matter to ERB for further proceedings.
The Court adopted a reasonable belief test for determining whether the councilor was the city's representative: "we adopt the 'reasonable belief' standard under PECBA for determining which individuals constitute a 'public employer representative,' such that a public employer may be held responsible for the unfair labor practices committed by such individuals. Specifically, when employees of a public employer would reasonably believe that a given individual acted on behalf of the public employer in committing an unfair labor practice, that individual is a 'public employer representative' under ORS 243.650(21), and the public employer may be held liable for the conduct of that individual under ORS 243.672(1)." 360 Or at 832. In the letter, the councilor expressly stated that the opinion was hers and not that of the city or a majority of council members. She wrote: "'To employees of the City and other organizations imprisoned by the dictatorship of a union as a private citizen I advise you to seek out the Department of Labor website where you can find instructions on how to de-certify your union captors. As an individual and former union member I believe you can put your union dues to better use in your own household budget and in supporting causes that truly express your
- wn values.'" 360 Or at 812.
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2 3. Fed'n of Oregon Parole and Prob. Officers, Wasco Cty. Chapter v. Wasco Cty., No. UP-019-15, 26 PECBR 774 (July 29, 2016) Employer violated section (1)(a) "because of" prong when failing to fill a vacant parole and probation officer ("PPO") position. The Employment Relations Board ("ERB") found no "because
- f" violation for changing staff to a five-day work week, no violation of the "in the exercise" prong
for failing to fill the vacant position or changing the schedule, and no section (1)(b) violation for either reason. There was no dispute over the key facts of the case. The union engaged in protected activity when bargaining and filing an unfair labor practice complaint. And, the County refused to fill a vacant position and changed the PPO work schedule. The issue was whether there was a causal connection between the two. ERB noted the close proximity in time and the County's stated reasons of budgetary concerns for not filling the vacant position and its need to provide better coverage for deciding to change the
- schedule. The County asserted that its budgetary concerns arose, in part, because of the costs of
bargaining and the possible costs of interest arbitration. ERB found this justification pretextual for several reasons, including (i) there was no interest arbitration, (ii) an inaccurate comment to the board by the Sheriff about going into costly arbitration after the contract was settled, and (iii) a comment to a union official that the vacancy would not be filled because the union was filing a complaint. ERB concluded that there was no showing of pretext over the County's stated reason for changing the schedule and so found no "because of" violation there. ERB also concluded that the natural and probable effect of changing schedules was not to chill exercise of protected activities. No section (1)(e) violation ERB also rejected a union argument that the change in schedule immediately after bargaining constituted a breach of the duty to bargain in good faith. ERB noted that it had never held that such a change constituted a per se violation and declined to do so. ERB also noted that there was no evidence that the Sheriff had decided to make that change during bargaining, but purposefully hid that decision from the union. Moreover, ERB noted that several times during bargaining the Sheriff had stated that he was considering the schedule change such that the union was aware that a schedule change was a possibility. 4. SEIU Local 503, Oregon Public Employees Union v. Lane Council of Gov'ts, No. UP-048-14, 26 PECBR 806 (Sept. 26, 2016) The union complained that the employer failed, prior to interviewing employees in preparation for an unfair labor practice, to advise each employee (1) of the purpose of the questioning, (2) that they were not required to speak to the employer's representative, and (3) that there would be no reprisal for refusing to be interviewed. ERB rejected the union's request to apply these warnings that the NLRB mandated in Johnnie's Poultry Co., 146 NLRB 770, 775 (1964), enforcement den, 344 F2d 617 (8th Cir 1965). ERB concluded that Johnnie's Poultry warnings are required only where an employer interrogates an employee about matters involving the exercise of protected rights. And, in this case, ERB concluded that the inquiry was simply over another employee's workplace conduct and so no
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3 warning was required. ERB declined to rule if ever the Johnnie's Poultry warnings were required under the PECBA. Member Weyand concurred but opined that ERB should go ahead and adopt and apply the Johnnie's Poultry rule. C. DUTY TO FURNISH INFORMATION 5. SEIU Local 503, Oregon Pub. Emps. Union v. Univ. of Oregon,
- No. UP-009-15, 26 PECBR 724 (June 3, 2016), petition for review
pending University of Oregon violated its duty to bargain in good faith when refusing to produce to the union names and content of student reports regarding union bargaining unit members. The University asserted that information constituted student records deemed confidential under the federal Family Educational Rights and Privacy Act ("FERPA"), 29 USC 1232g, and provided expert testimony to support that position. ERB declined to rule whether the information requested constituted protected student records. ERB found that the University had made an absolute refusal to provide information without
- ffering to bargain an accommodation with the union that could have maintained the confidentiality
- f the records. Such outright refusals constitute a failure to bargain in good faith:
"Faced with possibly conflicting obligations under the PECBA and another law, public employers and labor organizations are not excused from their duty to bargain. Likewise, an assertion that the requested information is 'confidential' (either by virtue
- f FERPA or another source), does not mean that the obligation to bargain in good
faith disappears. Rather, in those situations, the withholding party must prove both a legitimate and substantial confidentiality interest, and that it pursued a good-faith accommodation to reconcile the conflict." See David Douglas Sch. Dist., 23 PECBR at
- 352. [East Cty. Bargaining Council v. David Douglas Sch. Dist., [Case No. UP-43-07]
23 PECBR 333, 352 [(2009)]. "Applying that framework, we conclude that the University has not satisfied its
- bligation to pursue a good-faith accommodation regarding the requested
- information. Specifically, with respect to both the CB and RG matters, the
University's first response to the at-issue requested documents was a flat refusal to provide the information on the ground that disclosure was precluded by FERPA. That response did not extend an accommodation to the Union or ask the Union to meet to try to work out an accommodation that would meet the Union's PECBA right to the information, as well as the University's concerns under FERPA. As set forth above, good-faith bargaining in these circumstances requires that the University pursue such an accommodation." 26 PECBR at 731. Rulings Petition to file amicus brief at time that memorandum in support of oral argument due was too late to be addressed by parties, untimely, and rejected.
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4 Efforts to reopen record to show that the underlying case had been settled and resolved declined, because the settlement occurred before the record closed and could and should have been filed earlier. Court noted that refusals to provide information, as general matter, are not rendered moot be either curing refusal later or resolving underlying dispute. 6. AFSCME Council 75, Local 189 v. City of Portland, No. UP-046-08, 26 PECBR 785 (Aug. 4, 2016) (Order on Remand), recons 26 PECBR 796 (Sept. 12, 2016), on remand from 276 Or App 174 (2016) rev'g 24 PECBR 1008 (2012), recons, 25 PECBR 85 (2013). Background
- a. ERB has adopted approach of the National Labor Relations Board ("NLRB") that there was
a duty to furnish information as part of the fundamental duty to bargain in good faith and that information requests and responses to such requests were analyzed on a case-by-case basis under the good faith standard.
- b. ERB has also ruled that a discovery-type standard obligates parties to produce information
- f probable or potential relevance when applied to information requests for grievances and
contract administration, but that a higher standard applies for contract negotiations.
- c. "The extent of the duty to provide information and the question of timeliness in providing
data may be tempered or determined by such factors as: "(1) The reason given for the
- request. * * * (2) The ease or difficulty with which the data can be produced. * * * (3) The
kind of information requested. * * * [and] (4) The history of the parties' labor-management relations" regarding information requests. OSEA v. Colton Sch. Dist., No. C-124-81, 6 PECBR 5027, 5031-32 (1982).
- d. ERB also recognized that an employer has the right to charge a union for costs that an
employer would not have incurred otherwise in responding to an information request. Colton, 6 PECBR at 5032. Prior decision Overturned In Lebanon Educ. Ass'n/OEA v. Lebanon Cmty. Sch. Dist., No. UP-4-06, 22 PECBR 323 (2008), ERB for the first time applied a unilateral change analysis to when an employer asked the union to pay for costs of production. ERB applied a balancing test, concluding that the matter addressed a mandatory subject of bargaining and then concluded that the employer had previously only charged a nominal amount for copying costs, but was seeking to collect more in "reimbursement for staff time." ERB decision before appeal In ERB's initial decision, it rejected Lebanon, and recognized that there was a prior decision that concluded that charging for information requests was permissive and that as a pre-1995 case controlled that determination controlled.
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5 On appeal Court of appeals said ERB failed to fully explain why this subject matter was simply charging for information requests and not the subject of grievance procedures or information for grievance procedures and remanded the case to ERB for further consideration on remand. On remand ERB returned to the "totality-of-the-circumstances" analysis and considered whether the District is asking the union to pay the fully-loaded costs of staff time to collect and review the requested information acted in good faith. In doing so, ERB announced that it would follow these principles adopted from NLRB rulings: "The cost and burden of compliance ordinarily will not justify an initial, categorical refusal to supply relevant data." The objecting party bears the burden of establishing an unduly burdensome financial impact so as to put the requesting party on notice of a need to bargain about the allocation of costs associated with compiling the information. To avoid an inference that the cost of compiling the information would be negligible, an
- bjecting party must justify its assertion of a burdensome financial impact if the requesting
party maintains that the cost of compliance would be "de minimis." An unconditional demand that the requesting party pay all costs is inconsistent with the
- bligation to bargain in good faith.
If the parties dispute whether the costs to comply with the information request are unduly burdensome, "the parties must bargain in good faith as to who shall bear such costs." ERB made no ruling on whether a bargaining proposal regarding information requests would be mandatory or permissive for bargaining. ERB's ruling ERB faulted the city (a) for stating in its initial response that a payment was required to receive the information requested, characterizing it as an unconditional demand, (b) when the union challenged the amount not initiating negotiations to provide a good faith accommodation or providing the documents, and (c) for failing to respond at all to the union's objections to the costs. D. SUBJECTS OF BARGAINING 7. Clackamas Cty. Emps. Ass'n v. Clackamas Cty., No. UP-032-15, 26 PECBR 798 (Sept. 15, 2016), petition for review pending ERB rejected the union's argument that the County's drug testing proposal contained a prohibited subject of bargaining under Measure 91, legalizing marijuana use in Oregon. The union argued that drug testing for marijuana was a prohibited subject of bargaining so long as that testing included potential off-duty or off-premises marijuana use. ERB emphasized the provision of Measure 91 that
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6 stated it "may not be construed * * * [t]o amend or affect state or federal law pertaining to employment matters." ORS 475B.020(1). E. ENFORCING AGREEMENTS 8. TriMet v. Amalgamated Transit Union, Local 757, No. UP-020-15, 26 PECBR 822 (Dec. 20, 2016) ERB ruled that Amalgamated Transit Union ("ATU") did not commit an unfair labor practice by allegedly breaching a grievance settlement, announcing that its officers had limited authority to settle grievances or failing to move cases to interest arbitration. ATU did commit an unfair labor practice by failing to respond to a TriMet information request. A union that orally reaches a settlement agreement but fails to reduce it to writing violates ORS 243.672(2)(e). ERB concluded that TriMet failed to meet its burden of proof in this fact-specific dispute noting: (i) that the grievance response was conditioned on union acceptance, which never occurred, and (ii) TriMet manager could not point to specific oral statements of agreement by the union representative in the meeting. ERB ruled that a letter by the new union president that the grievance officer at the first step could
- nly settle a grievance (i) with agreement of the grievant, (ii) after notice to the union, and (iii) on a
non-precedent basis "was not clearly contrary" to a newly negotiated CBA provision. The new provision stated, "The persons handling grievances at each step * * * shall have the authority to finally resolve the grievance at that level, except no such settlement shall have any effect or alter this agreement." ERB ruled that to repudiate an agreement, the conduct "must be clearly contrary to a contract" or clearly a repudiation of the terms of the parties' agreement." 26 PECBR at 832. TriMet also challenged ATU's refusal to strike arbitrator names for dismissal grievances. ERB ruled that ATU did not violate any contract terms nor its actions constitute an unfair labor practice notwithstanding the passage of eight months since obtaining a list of names. ATU justified the refusal to strike names because it proceeds with grievances in order, and there were 140 grievances waiting to be arbitrated before the dismissal grievances. ERB cited prior rulings that "[t]o constitute an unfair labor practice, a refusal to arbitrate must be clear and unequivocal." Id. at 836. TriMet protested that an employer that refused to strike names would violate ORS 243.672(1)(g); ERB asserted in a defensive posture that it applies the same test to unions as to employers. ERB did conclude that the union committed an unfair labor practice when it failed to respond to TriMet information requests about the alleged practice of striking names of arbitrators in order of filing. F. ADOPTION OF ALJ DECISION WHERE NO OBJECTION FILED Oregon Sch. Emps. Ass'n v. N. Santiam Sch. Dist., No. UP-024-15, 26 PECBR 740 (June 30, 2016): There was no unilateral change when employer reduced number of work days where no past practice established. (Weyand dissented, stating he would have found unilateral change.) Michelle Scott v. Serv. Emps. Int'l Union Local 503, Oregon Pub. Emps. Union, and State of Oregon, Oregon Youth Auth., No. FR-003-15, 26 PECBR 757 (July 25, 2016): There was no duty of fair representation violation over union negotiation of settlement agreement with employer.
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7 AFSCME Local 189 v. City of Portland, No. UP-037-14, 26 PECBR 841 (Dec. 23, 2016): The city engaged in surface bargaining when failing to negotiate in good faith with the union after an increase in the City's minimum wage. Brookings-Harbor Educ. Ass'n/OEA/NEA v. Brookings-Harbor Sch. Dist. 17C and Brookings-Harbor Sch.
- Dist. 17C v. Brookings-Harbor Educ. Ass'n/OEA/NEA, Nos. UP-005-16 & UP-010-16, 26 PECBR
___ (Mar. 27, 2017): District violated the duty to bargain in good faith by increasing student contact time and instructional time without first bargaining. ALJ rejected the argument that the association president had agreed to permit implementation before completing bargaining by an exchange of a memorandum and responding e-mail. ERB considered whether there was a waiver of the right to bargain by one of three recognized methods: (1) "clear and unmistakable" contract language, (2) a bargaining history that shows the party consciously yielded its right to bargain, or (3) the party's action or inaction. ALJ concluded there was no clear and unmistakable wavier in the contract language, and ALJ ruled that there was no agreement to permit the action because there was no consideration for the waiver. ALJ also rejected the business necessity defense because there were alternatives available to satisfying state mandates on instructional hours. ERB also rejected that the union was untimely in demanding to bargain based on a presentation made to teachers at the end of the summer break upon return to work as both inadequate notice and presentation of final decision and the fact that the District then went ahead and bargained with the Association. II. INTEREST ARBITRATIONS 9.
- Am. Fed'n of State, Cty. & Mun. Emps., Local 88-6, AFL-CIO /
Multnomah Cty., No. ME-60-16L (Jan. 27, 2017) (J. Duffy, Arb.): Employer This case involved a unit of juvenile custody workers. The dispute was over two issues: (1) just cause protection for on-call workers, and (2) wages for all workers in the unit. Regular workers and
- n-call workers performed the same duties—supervising youth in court-ordered detention and
behavior rehabilitation. The on-call workers had been added following voluntary recognition in 2013. The union proposed that on-call workers get just cause protection; employer added right to appeal and obtain review by the department director. The parties had agreed to wage increases for July 1, 2016 and July 1, 2017 but not for July 1, 2015. The employer offered 2.1% increase and the union sought 3.6% increase effective July 1, 2015. Under the interest and welfare of public criteria, Duffy quoted Carlton Snow's test for changing status quo and concluded that the union did not establish compelling need for just cause termination. As regards to compensation, Duffy considered comparable jurisdictions adopted in a 2008 award (where the union's proposed approach was rejected), but then criticized County for not undertaking total compensation analysis. Duffy applied the cost of living factor by observing what the parties agreed on, but that the union did not justify the additional amount it was seeking.
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8 Snow's three part test provides: To justify changing an existing contractual relationship, one arbitrator has proposed that three factors be met to modify the status quo. There needs to be: "(1) evidence that the existing situation is unworkable or inequitable; (2) evidence of a quid pro quo; and (3) proof of a compelling need." Bend Firefighters Assn. v. City of Bend, IA-09-95 (1996) (C. Snow, Arb.) 10. Salem Area Mass Transit Dist. v. Amalgamated Transit Union Div. 757, No. ME-39-14L (Jan. 6, 2017 (F. Connell, III, Arb.): Employer The sole issue was the wage rate for a parts and supply clerk. The union proposed an additional 6% bump above the across-the-board increase given to all employees in the bargaining unit. The arbitrator went through each factor in the secondary analysis for statutory interest arbitration and then addressed other issues (third tier) presented by the parties. The only comparable jurisdiction with an arguably similar position was Lane County and its inventory technician position, but the Arbitrator was not convinced that the position presented a valid comparison. The Arbitrator also considered, but was unconvinced by, the union argument that the employee was doing same work as the employer’s non-union parts buyer. The Arbitrator noted but did not weigh in on employer argument that no union would strike over wages for a single position. The Arbitrator concluded that the union did not justify change in status quo under the Snow criteria (showing neither a compelling need nor a quid pro quo.) 11. City of Grants Pass v. Grants Pass Police Ass'n, No. ME-76-16L (Jan. 2, 2017) (Arb. Joseph W. Duffy) Union A broad range of issues were in dispute, including contract term, wage increases, an employer proposal to make 12-hour patrol officers bid off seniority based shifts one time per year, call back minimums, detective pay premium, other premium pay adjustments (DPPST certification, education, second language, EMT certification), and the amount of the and boot allowance. Key elements in the award included: In determining appropriate comparable jurisdictions, the arbitrator looked only at population (not location) The arbitrator analyzed, but gave no special consideration to Grants Pass taking up slack left by underfunding of the Josephine County Sheriff's Office under the ability to pay argument. The arbitrator found the concerns mostly speculative and not current In considering retention of workers, the arbitrator did a good job in parsing through argument and analyzing reasons employees departed The arbitrator applied Snow's compelling interest analysis to changes in status quo On-call back pay—both sides' proposed changes found no compelling need by either side
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9 The arbitrator found Association three-year contract more sensical given that the parties were almost two years into CBA 12. Clackamas Cty., Clackamas Cty. Cent. Commc'ns Dept. (C-COM) v.
- Am. Fed'n of State, Cty. and Mun. Emps., Council 75, Local No. 350,
- No. ME-04-16L (Dec. 19, 2016) (G. Axon, Arb.): Employer
The dispute was primarily over whether the county could switch from a 4-days-on/4-days-off schedule to a 4-days-on/3-days-off schedule. Also in dispute was a cap on compensatory time and converting vacation or compensatory time to personal leave. The Arbitrator adopted comparators proposed by the agency, which included four other in-state 9-1-1 centers, noting that it was the same comparators used in a 2004 interest arbitration. The Arbitrator declined to include Clark County, Washington, as requested by the union, because there were adequate comparators in Oregon and too many differences with Washington. It was noted that Clark County used a 4-on/4-off schedule. Citing Snow's three-part criteria for changing the status quo, the Arbitrator was convinced that the employer made a compelling case for change to the 4-on/3-off schedule. The revised schedule would permit the agency to meet its staffing needs, including scheduling more hours of work at straight-time, reducing overtime and improving hiring and training. The agency also offered a quid pro quo of higher wages. 13. Tri-County Metro. Dist. of Oregon v. Amalgamated Transit Union,
- Div. 757, No. ME-05-16L (Oct. 6, 2016) (S. Skratek, Arb): Employer
Mid-term bargaining dispute for the single issue of wages for the position of customer experience agent—a newly created positon—that replaced the trip planner position. Employer proposed a 2.3% increase over the replaced position and the union proposed a wage of $27.61 (equivalent of 27% increase over the trip planner position). Arbitrator focused on comparability of pay for positions providing like services in other jurisdictions, the additional duties imposed, and considered wages of others within TriMet performing similar duties. The Arbitrator concluded that the employer's last best offer was the most appropriate although the rate was less than warranted by the comparative data. 14. Lincoln Cty. v. Lincoln Cty. Emps. Ass'n, No. ME-34-15L (Aug. 29, 2016) (K. Whalen, Arb.): Union The dispute was over wages for deputy district attorneys. County proposed 1.75% per year over three-year agreement from 2015-2018. Union proposed increases of 2.25%, 2.75%, and. 2.75%. The Arbitrator rejected both parties' comparability analysis and relied on other factors. Arbitrator faulted the county for not including Columbia County on the basis of it being nonunion when it was closest in population to Lincoln County. Arbitrator focused on the departure of DDAs to other counties over time. The Arbitrator awarded the union's last offer as more likely to address the retention issue.
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10 15. Oregon Dept. of Human Servs., Stabilization and Crisis Unit (SACU) / AFSCME Council 75, Local 1246, No. ME-37-15S (July 29, 2016) (H. Lankford, Arb.): Employer The dispute over wages for "guards" at the DHS Stabilization and Crisis Unit and state prison facilities, serving residential mentally ill population, some of whom are there voluntarily. Also disputed was the remedy for overtime errors. The parties agreed in state-wide bargaining that applies to this unit to 2.25% and 2.75% increases. But for this unit, the union sought an additional amount of 1% for the first year and elimination of the bottom four steps of the wage scale and adding four new steps at the top. The agency argued inability to pay based on the amount appropriated to it and the amount that is general fund money. There appears to be a hiring and retention problem at the agency given the low rate of success in bringing on new employees. However, the union and employer had jointly lobbied the legislature to fund comprehensive programs to adopt a certification program with additional training and premium pay expected to reduce hazards and address hiring and retention issue. There are no comparable jobs in other states and so the comparability test is not considered. The history of raises shows that the employees have exceeded the cost of living. The Arbitrator declined to consider internal equity (a third-level inquiry) because he concluded that he could make decision based on first two criteria. While the Arbitrator questioned the agency proposal on remedying overtime errors, the Arbitrator concluded that the "superiority" of the union overtime language was "not enough to overthrow the conclusion required by the record with respect to the parties' economic proposals." Id. at 24. 16. Cities of Eugene & Springfield / Int'l Ass'n of Firefighters Local 851,
- No. ME-38-15L (May 6, 2016) (P. Gordon, Arb.): Employer