The Good, the Bad, and the Ugly: 8th Annual Review of Recent Oregon - - PDF document

The Good, the Bad, and the Ugly: 8th Annual Review of Recent Oregon Public-Sector Labor Cases

Oregon Public Employer Labor Relations Association May 24, 2018 Presented by Jeffrey P. Chicoine

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

TABLE OF CONTENTS I. KEY COURT CASES .......................................................................................................................1 II. PECBA CASES FROM OREGON COURTS AND THE EMPLOYMENT RELATIONS BOARD......................................................................................................................3 A. REPRESENTATION/UNIT CLARIFICATION.........................................................3 B. BARGAINING PRACTICES............................................................................................7 C. UNILATERAL CHANGE.................................................................................................9 D. REFUSAL TO PRODUCE INFORMATION............................................................ 10 E. INTERFERENCE............................................................................................................. 11 F. REFUSAL TO ARBITRATE.......................................................................................... 12 G. DUTY OF FAIR REPRESENTATION CASE .......................................................... 12 H. DECLARATORY RULING ........................................................................................... 13 III. INTEREST ARBITRATIONS..................................................................................................... 13

1 I. KEY COURT CASES 1. Janus v. AFSCME, U.S. Supreme Court Case No. 16-1466, argument held February 26, 2018, decision pending This case is currently pending before the U.S. Supreme Court on the question whether fair-share fees are constitutional.  Decision and implementation: Employers will need to implement and stop deducting fair-share fees immediately if the Supreme Court rules, as expected, that fair-share fees are unlawful. Are your records on who is a union member and who is a fair-share member complete? Consider making an information request to your unions for lists of union members (and associated membership enrollment paperwork).  Bargaining obligation: Under PECBA, ORS 243.702, there is an obligation to renegotiate invalidated provisions of collective bargaining agreements: " (1) In the event any words or sections of a collective bargaining agreement are declared to be invalid by any court of competent jurisdiction, by ruling by the Employment Relations Board, by statute or constitutional amendment or by inability of the employer or the employees to perform to the terms of the agreement, then upon request by either party the invalid words or sections of the collective bargaining agreement shall be reopened for negotiation. "(2) Renegotiation of a collective bargaining agreement pursuant to this section is subject to ORS 243.698." Many agreements contain similar provisions that should also be considered.  Alternative union security provisions: Unions are currently pushing to legitimize maintenance of membership clauses through a new rulemaking by the Employment Relations Board ("ERB"), restricting right of bargaining-unit members to opt out once they enroll in union membership and authorized dues deduction. Regardless of such a rule, unions are likely to push for similar provisions in agreements. These provisions may not be constitutional, and the rules may be contrary to ORS 292.055. 2. TriMet v. Amalgamated Transit Union, Local 757, 362 Or 484 (2018) The focus of this case was whether TriMet's bargaining with the ATU is subject to the Oregon Public Meetings Law.

2 This matter went up on cross-motions for summary judgment on a very narrow range of

• facts. The facts included that the TriMet governing board delegated bargaining to a

team chaired by its Executive Director of Human Resources. It was conceded, for purposes of the summary judgment motion, that the management bargaining team was a "governing body" because it was advising a governing body. The heart of the case was whether the bargaining team could escape the Public Meetings Law because it had no quorum requirement.  The court of appeals ruled that bargaining sessions were not “meetings” subject to the Public Meetings Law. The court noted that not every “convening” of a governing body requires a quorum or involve making a decision or deliberations towards a decision, noting that bargaining will take place regardless of the number of members present. A ruling that the bargaining meetings were not a "meeting," as defined in the law, was not appealed and not before the Supreme

• Court. (Nonetheless, the Supreme Court seemed to endorse this ruling.)

 Affirming another trial court ruling, the court conclusively rejected ATU's contention that ORS 192.660(3) requires that all bargaining sessions of a public body be conducted in an "open meeting[]" unless both parties consent to private

• meetings. ORS 192.660(3) does not impose any such broad open-meeting
• bligation for all public employer bargaining. Rather, the section functions as a

limited exception to the requirement that all "meetings" of a "governing body" must generally be open to the public—that is, if both parties consent, a "meeting" to negotiate may be held in executive session.  The Supreme Court, however, denied TriMet summary judgment on other grounds, holding that the management bargaining team would violate ORS 192.630(2) if it were to "meet in private." The Supreme Court held that to "meet in private" is not the same as and is broader than a “meeting.” TriMet tried to avoid this provision by arguing that the committee had no quorum requirement, but the Supreme Court held that every governing body has a quorum requirement implied by statute. How does a public employer reduce the risk of its bargaining team's being subject to the Public Meetings Law and prohibited to "meet in private?" Two ways (for now): a. The final bargaining authority is not retained by the governing board, but delegated to a single person, such as the Board Chair or the agency's chief executive. b. When the agency governing board retains the final bargaining authority, it delegates bargaining responsibility to a chief spokesperson or lead negotiator, whether an outside negotiator or the inside manager. While that lead negotiator may form a team, the team itself has no formal authority and does not function as advisory to the governing board.

3 II. PECBA CASES FROM OREGON COURTS AND THE EMPLOYMENT RELATIONS BOARD A. REPRESENTATION/UNIT CLARIFICATION 3. SEIU Local 503, OPEU v. Portland State Univ.,

• No. UC-002-17, 27 PECBR ___ (Mar. 9, 2018)

ERB adopted a recommended order from ALJ Kehoe in a case in which no objections were filed. The Union sought to add police sergeants to a unit consisting only of police officers. The University had recently created a police department from a campus public safety office. The public safety office had used nonsworn personnel to patrol the campus. The case turned on the responsibilities that the sergeants exercised in making assignments: (a) assigning staff to serve as field training officers, which included a 5 percent premium; (b) setting officers' shifts, mandating overtime, and handling a variety of time- off requests; and (c) deciding how and when officers were deployed during a shift. Order at 13-14. The ALJ also concluded that the sergeants made effective recommendations regarding discipline emphasizing the history and practice and so considered evidence from when the unit operated as a public safety operation (before it was a police unit) and notwithstanding a recent rejection by the command staff of a recommended termination by a sergeant. Interestingly, the ALJ noted that assigning officers to "specialty, premium-pay assignments," including work as an FTO, is "deemed evidence of authority to 'assign'" and is not considered under the promotion and reward criteria. The ALJ also rejected evidence that the sergeants exercise judgment in promoting probationary to regular status. Order at 14. Practice Tip: It is the pattern of exercising supervisory authority that controls and not the one-off exception in which the command staff declined to follow a sergeant's recommended termination. 4.

• Or. AFSCME Council 75 v. Or. Judicial Dep't—Yamhill

Cty., No. RC-003-17, 27 PECBR ___ (Mar. 14, 2018) appeal pending Over the state's objections, ERB held that the petitioned-for unit of all nonelected employees of the Yamhill County Circuit Court constituted an appropriate bargaining unit, excluding supervisory, confidential, and managerial employees. The state argued that the petitioned-for unit would result in undue fragmentation and that an appropriate unit should consist of the entire Judicial Department of all 27 judicial

• districts. The state emphasized that ERB's approach could lead to 27 separate

bargaining units.

4 ERB explained that this preference for wall-to-wall units is merely a historic preference

• f ERB and is not based on any statutory provision. While ERB recognized that a single

large unit would ease the employer's bargaining obligations, ERB discounted the former rationale that a single large unit would minimize the risk of labor strife. Parroting a Union argument, ERB dismissed this latter concern as lacking any empirical evidence. ERB emphasized that the petitioned-for unit must be "an appropriate unit," not the most appropriate unit. Member Umscheid issued a vigorous dissent, noting: "First, I would conclude that the well-established preference in State cases for the largest possible appropriate unit, when considered together with the statutory factors, tips the balance against finding the petitioned-for unit appropriate. Second, I would weigh more heavily in the analysis the risk of additional significant fragmentation in this workforce. Third, I would conclude that the employees in the Yamhill County Circuit Court do not have a clearly distinct community of interest, including significantly different wages, hours or other working conditions, to support finding a departmental unit appropriate. Fourth, I would conclude that the absence

• f any recent attempt to organize a larger unit in the Oregon Judicial

Department (Department) weighs against finding the petitioned-for unit appropriate." Order at 21-22. Practice Tip: ERB is continuing to move away from these policies favoring wall-to-wall units and avoiding undue fragmentation. In the past, one approach to minimize or combat such fragmentation was to centralize labor relations and human resources efforts and have uniform employment rules and practices. 5. City of Or. City v. Or. City Police Officers' Ass'n,

• No. UC-009-16, 27 PECBR 127 (Sept. 14, 2017)

ERB concluded that the positions of Court Services/Collections Clerk and Court Records Specialist were in an appropriate bargaining unit represented by the Association, dismissing a management petition to remove them from the bargaining unit. The petition addressed two of three court clerks who were part of a strike-prohibited bargaining unit of roughly 50 police department and municipal court employees. Because the unit included strike-prohibited police officers, the entire unit was considered strike-prohibited. The unit included three court clerks and 12 other police department personnel who were strike-permitted. The petition addressed only two of the three court clerks. The standard for removing these clerks was whether they had a "clearly distinct" community of interest from the rest of the unit—a very high burden. ERB concluded that these two court staff employees lacked "a distinct community of interest" from the other unit members—

5 applying a six-part test. ERB noted that one strike-permitted court staff member would remain in the unit and other strike-permitted police department employees would remain in the unit. Further, ERB noted that there was no distinct compensation pattern

• r unique supervision for the targeted employees or a significant change in

circumstances since the unit was first recognized. Practice Tips:  Employers need to analyze and understand employment patterns before filing—a senior clerk was left out of the petition—and ramifications on the petition. A motion to amend petition to cover senior clerk was made at hearing and denied.  While ERB says that it avoids a mixed unit of strike-permitted and strike- prohibited employees, it is not a hard-and-fast rule.  Note that undue fragmentation is one part of the six-part test applied. 6.

• Or. AFSCME Council 75 v. Lane Cty., No UC-013-16,

27 PECBR 169 (Dec. 18, 2017) ERB ruled that the petitioned-for Lead Electrician positions in the classification of Maintenance Specialist-Lead are in the AFSCME bargaining unit. The County created two lead positions, promoted two electricians into those positions from the AFSCME unit, and placed the positions in the Administrative/Professional unit. ERB undertook a fact-intensive review of the history of the two bargaining units and bargaining agreements. ERB noted that the petition was filed under OAR 115-025-0005(3). Thus, the issue was not whether the disputed employees should be added to the bargaining unit, but whether the positions were already in the unit based on the language of the certification

• r the collective bargaining agreement. The case turned on the broader language of the

AFSCME recognition clause, which stated that the Union represented "all employees" of the County, excluding those represented by other unions. Thus, the AFSCME unit was the typical "wall-to-wall" unit. ERB also emphasized that the two new leads continued to perform the same electrician's work performed in the past when represented by AFSCME—one at the same location, the Lane County Events Center, and the other throughout the County but working out of the same base. By contrast, the recognition clause in the Administrative/Professional agreement covered a "laundry list" of those positions listed in an attached Schedule B. Schedule B did include a classification of "Lead Electrician." And Schedule B stated that a State of Oregon Electrician's License is a special skill of this classification, but did not specify the level of licensure required. This position performed work related to the maintenance and repair of traffic signals and controllers.

6 Practice Tip: The employer controls the facts. When creating a new position, consider how the responsibilities or duties assigned to the new position will affect the placement within or

• utside of a bargaining unit.

7.

• Univ. of Or. Police Ass'n v. Univ. of Or., No. RC-001-17,

27 PECBR 71 (June 20, 2017) Applying the NLRB exceptions to the contract bar rule, ERB held that that the existing contract with SEIU Local 503 did not bar certification of a new exclusive representative, where the SEIU local had "disclaimed" interest. ERB regulations provide that the contract bar does not apply if: (a) unusual circumstances exist under which the contract is no longer a stabilizing force; and (b) an election should be held to restore stability to the representation of employees in the unit. OAR 115-025-0015(2)(d). Following the NLRB practice, a disclaimer of interest is one such unusual circumstance. 8. Amalgamated Transit Union, Div. 757 v. TriMet,

• No. CU-002-16, 27 PECBR 73 (June 22, 2017)

Adopting ALJ Kehoe's decision; no objection by parties. The ALJ added "on-street customer service representatives" employed by TriMet to the ATU's wall-to-wall bargaining unit for TriMet employees. The formal name for their position is "Field Outreach & Community Relations Representative ("FOR"). The ALJ applied the community-of-interest test under ORS 243.682(1), which considers community of interest, wages, hours, and other working conditions, the history of bargaining, and desires of employees. The ALJ emphasized ERB's continuing preference for "establishing the largest possible appropriate unit," Order at 9, 27 PECBR at 81, and for "wall-to-wall" units. Order at 12, 27 PECBR at 84. The ALJ discounted TriMet's efforts to distinguish FORs from other bargaining-unit

• members. First, although FORs may be paid on a unique wage scale, the bargaining unit

consists of many unique wage scales. And second, while FORs' schedules vary and are irregular, other unit members may be called in on short notice. Although FORs are the

• nly classification in the unit covering part-time work, the ALJ said that this was not a

basis for excluding workers from a wall-to-wall unit. 9.

• Or. AFSCME Council 75 v. Lane County,
• No. RC-007-17, 27 PECBR ___ (April 25, 2018)

ALJ Kehoe's recommended order was not subject to objections and adopted by ERB. A petition to certify a new bargaining of primary care physicians was granted. The ALJ rejected the employer's contention that any unit should include all doctors employed, including psychiatrists. The ALJ found a unique community of interest and employment practices that applied to the primary care physicians different from that of psychiatrists.

7 The ALJ cited Specialty Healthcare and Rehabilitation Center of Mobile, 357 NLRB 934 (2011), in which the National Labor Relations Board announced practice

• f approving "micro-units" so long as the identified group had a community of interest.

The ALJ concluded that "no wall-to-wall unit is possible here[,]" Order at 9, and dismissed concerns over fragmenting the workforce since there were already seven bargaining units. Order at 8. 10.

• Or. AFSCME Council 75, Local 88 v. Multnomah Cty.,
• No. UC-006-17, 27 PECBR ___ (Apr. 13, 2018)

(interim order) ERB vacated the recommended order issued by ALJ Grew and ordered that further evidentiary proceedings be held to gather additional information. The Union petitioned for the addition of on-call and temporary employees into the unit. But ERB determined after oral argument that it could not make a decision based on the record before it. ERB reasoned that it had the responsibility to create a full record given the "investigatory" nature of representation proceedings. ERB noted that it would not add on-call or temporary employees to a unit if there was

• nly a tenuous employment relationship. Among the defects in the case, ERB noted that

it lacked evidence regarding on-call employees in several departments. Order at 4. The record also lacked specifics as to practices regarding the County's temporary employees, such as what employees are told about continuing past the initial duration, whether such durations are extended, and frequency of transition into regular work. Order at 5. B. BARGAINING PRACTICES 11. Clackamas Cty. Emps.' Ass'n v. Clackamas Cty., No UP-032-15, 26 PECBR 798 (Sept. 15, 2016), aff'd without opinion, 288 Or App 167 (2017), rev denied (Mar. 22, 2018) (No. S065466) Court of appeals affirmed without opinion ERB's ruling. ERB ruled that the County violated its duty to bargain in good faith by proposing, and then refusing to withdraw, a policy allowing it to test certain current employees for marijuana use. ERB found nothing in Measure 91, legalizing recreational marijuana use in Oregon, as barring or regulating employment testing for marijuana at the workplace. Indeed, ERB quoted a provision in Measure 91 that it "'may not be construed * * * [t]o amend or affect state or federal law pertaining to employment matters.' ORS 475B.020(1)." 26 PECBR at 805. 12. Portland Ass'n of Teachers/OEA/NEA v. Multnomah Cty.

• Sch. Dist. No. 1J, No. UP-024-17, 27 PECBR 146 (Sept. 15,

2017), order on reconsideration, 27 PECBR 191 (Dec. 22, 2017) ERB held, in a novel determination, that substitute teachers are covered by the school employees' sick leave provision, ORS 332.507, and that a District sick leave proposal

8 that did not take that law into account was unlawful. ERB rejected the District's contention that ORS 332.507 did not apply to substitute teachers. ERB concluded that the District's sick leave proposal that addressed its obligation only under the recent Oregon Sick Leave Law, ORS 653.601 to 653.661, was unlawful and that pursuing it was an unfair labor practice. School districts had not provided substitute teachers with sick leave under ORS 332.507 primarily because the statute makes sense only as applied to regularly employed school employees (one day of sick leave is required for each month employed). ERB relied on the "plain language" of ORS 332.507, concluding that on its face it applied to all school employees notwithstanding its lack of guidance as to how it should apply to substitute

• teachers. The case turned largely on old, incomplete, and confusing legislative records.

ERB acknowledged that it did not understand how ORS 332.507 would apply to substitute teachers, but nonetheless found it applicable. Practice Tip: Be strategic about making or responding to contract proposals on a subject covered (in whole or in part) by a statute and consider whether the Union wants the statutorily imposed obligation addressed in the collective bargaining agreement. Your best approach may be to leave out the subject or limit the agreement to satisfying legal

• bligations.

13. Treasure Valley Educ. Ass'n v. Treasure Valley Cmty. Coll., No. UP-034-17, 27 PECBR 209 (Jan. 16, 2018) ERB ruled that the District violated ORS 243.712(2)(d) when it failed to implement a COLA after the expiration of the parties' agreement, which provided: "'1. Cost of Living Adjustment (COLA) Increase: "'i. There will be a 2.5% COLA increase each year for each member who has reached their maximum step level or

• above. All other members shall not receive a COLA.

"'2. The 4.5% increase between steps will be maintained.'" Order at 5, 27 PECBR at 213. ERB concluded that this COLA provision was a longevity-based increase, much like moving from one step to another. ERB emphasized that this conclusion was supported by the provision's application only to teachers who had topped out on the step chart. ORS 243.712(2)(d) provides in part, "Merit step and longevity step pay increases shall be part of the status quo unless the expiring collective bargaining agreement expressly provides otherwise."

9 14.

• Or. Sch. Emps. Ass'n v. Ashland Sch. Dist., No. UP-037-16,

27 PECBR __ (May 3, 2018) ERB's rulings:  District e-mails to bargaining unit members did not violate ORS 234.672(1)(a), (b), (c), or (e).  Reduction of hours of union president was not because of his union activity. Union contended e-mails contained false statements, a new proposal, and that denigrated Association staff and leadership. Some key rulings:  As regards accurate factual statement: "the 'natural and probable effect' of distributing factual information does not typically tend to coerce or intimidate employees." Order at 25.  As regards non-factual statements: "We apply an objective test, and consider the totality of the particular circumstances." Order at 25.  As to whether there is a threat: "statements that an employer makes that indicate an unwillingness to negotiate with members of a bargaining unit are likely to chill employees from engaging in protected activities, whereas 'harsh language alone' does not constitute an unfair labor practice. Order at 26 (internal citations and quotations omitted).  ER did not ask for response or feedback from employees, but directed employees to union representatives Member Sung registered a vigorous dissent. C. UNILATERAL CHANGE 15.

• Or. Sch. Emps. Ass'n v. S. Coast ESD, No. UP-027-16,

27 PECBR 47 (May 17, 2017) ERB adopted ALJ Kehoe's decision because no objection was filed. The ALJ ruled that the District violated ORS 243.672(1)(e) by (a) refusing to bargain with the OSEA over safety issues that have a direct and substantial effect on the on-the- job safety of employees, and (b) unilaterally implementing changes that have a direct and substantial effect on the on-the-job safety of employees and that impact employee discipline and job security without bargaining. The District unilaterally issued and directed instructional assistants to don personal protective equipment ("PPE") in certain interactions with a special-needs student,

10 subject to discipline. The PPE consisted of shin guards, sweatshirt, and vest. The ALJ concluded that the subject of the dispute was mandatory for bargaining because it (a) involved discipline, and (b) had "a direct and substantial effect on the IAs' on-the-job safety" and under the balancing test the subject "leans mandatory." Order at 19-20, 27 PECBR at 65-66. The ALJ also rejected the District's contract waiver argument, noting: "the contractual provisions on which the District rests its contention here—the CBAs' Management Rights, Discipline/Dismissal, and Complete Agreement sections—do not address the linking of discipline, PPE, and staff response plans in express terms, and say even less about how that sort of decision would impact anything. Thus, they do not meet the Board's standard." Order at 20, 27 PECBR at 66. D. REFUSAL TO PRODUCE INFORMATION 16. Service Employees Int'l Union Local 503 v. Univ. of Or., 291 Or App 109 (2018), aff'g, No. UP-009-15, 26 PECBR 724 (June 3, 2016) The court of appeals affirmed ERB's order, concluding that the University failed to comply with its obligations to produce requested information. The University objected because the information contained student records protected from disclosure under the federal Family Educational Rights and Privacy Act ("FERPA"). The ALJ concluded that the records sought were not protected under FERPA. ERB in the final order assumed that the records were protected, but found the University's action noncompliant with its bargaining obligations. Specifically, ERB faulted the University in its initial response by a flat refusal to produce the requested information without extending an accommodation or willingness to explore accommodation. Then, after securing a letter from a federal agency determining that the records were FERPA-protected, the University did not further explore accommodations, including whether to seek student consent. ERB does not permit withholding information solely on the basis of asserting that the information is confidential, but the party "must prove both a legitimate and substantial confidentiality interest" and pursue a good-faith accommodation to reconcile the

• conflict. 291 Or App at 112 (internal quotation marks and citation omitted).

17.

• Or. Sch. Emps. Ass'n v. S. Coast ESD, No. UP-027-16,

27 PECBR 47 (May 17, 2017) [discussed above] The ALJ ruled that the District did not unlawfully refuse to produce information when it unilaterally redacted certain identifying information in response to a record request. The ALJ noted that ERB has recognized that an employer may furnish information in form different from that sought by the Union and that "there may be alternatives to complete disclosure." Order at 21-22, 27 PECBR at 67-68. Significantly, when producing the information, the District "substantially complied" with the request and responded in a timely manner. Order at 22, 27 PECBR at 68.

11 18. Lincoln Cty. Emps. Ass'n v. Lincoln Cty., No. UP-039-16, 27 PECBR 100 (Aug. 30, 2017) ERB adopted ALJ Grew's decision after neither party filed objections. Member Umscheid dissented, noting that "a necessary component of a union's threshold showing

• f relevance is an assertion that some action by the employer has, or at least may have,

violated a term of the collective bargaining agreement." Order at 1 n.1, 27 PECBR at 100 (internal quotation marks and citations omitted). The Association sought metadata showing dates of creation and alteration to a work

• plan. The Association theorized that if the plan had not been drafted until after the

grievance was filed, it would show retaliation. The City objected, asserting that it would intrude on the attorney-client privilege. The ALJ applied the four-part test of Or. Sch.

• Emps. Ass'n, Chapter 68 v. Colton Sch. Dist. 53, No. C-124-81, 6 PECBR 5027, 5032-33

(Jan. 28, 1982): (a) the reason given for the request; (b) the ease or difficulty with which the information can be produced; (c) the kinds of information requested; and (d) the history of labor relations between the parties. The ALJ rejected the County's arguments that (a) the Association was not entitled to the work plan document metadata because the material sought was unrelated to the grievance; (b) the County communicated the creation date of the work plan to the Association and that date was before the grievance filing; (c) the collective bargaining agreement did not provide for grievances based on claims of retaliation; (d) a work plan was not subject to a grievance; and (e) the metadata was protected by attorney-client privilege. The ALJ explained that the employer's assertion that it provided the creation date of the document (without backup support) was not sufficient. Also, ERB was not in the practice of deciding whether a purported dispute was grievable in deciding whether a request sought probably relevant information. And the employer had failed to carry its burden asserting confidentiality and to discuss and try to find an accommodation over the privilege concerns. E. INTERFERENCE 19.

• Or. AFSCME Council 75 v. Multnomah County,
• No. UP-033-16, 27 PECBR __ (April 26, 2018)

ERB adopted ALJ Grew's order because neither party filed objections. The ALJ held that the County had violated ORS 243.672(1)(a) and (c) when it subjected a union steward to extra scrutiny and criticism for filing a grievance against him. The manager conducted a review of the steward's casework; raised specific questions and concerns regarding her casework; and told a superior she needed further supervisory

• versight and coaching, was not a candidate for teleworking, should not be teleworking,

and therefore was no longer authorized to telework.

12 F. REFUSAL TO ARBITRATE 20. Amalgamated Transit Union, Div. 757 v. TriMet,

• No. UP-022-16, 27 PECBR 112 (Sept. 8, 2017),

appeal pending ERB held that the employer's objections to the substantive arbitrability of two grievances were for the arbitrator because it could not hold with "positive assurance" that the matters were not arbitrable. ERB limited its examination to the arbitration clause and declined (a) to examine the jurisdictional clause, and (b) to consider extrinsic evidence of past practice, bargaining record, and bargaining history to ascertain the meaning of the agreements' jurisdictional clauses. Although the Union argued that the extrinsic evidence was effectively deciding the case on the merits, that did not form the basis for ERB's conclusion. One grievance was over whether the parties' agreement applied to community shuttle services provided by third parties with federal and state money passed through TriMet to various third-party operators. The other grievance was filed by a person from outside the bargaining unit—an excluded supervisory employee—who sought to invoke right to bump back into the bargaining unit in a long-expired contract. The employer argued that he was not a member of the bargaining unit and could not file the grievance. G. DUTY OF FAIR REPRESENTATION CASE 21. S.R. v. AFSCME Local 328, No. FR-001-17, 27 PECBR 162 (Nov. 20, 2017) (dismissal order) Bargaining unit member (formerly employed at OHSU) brought a claim for duty of fair representation against the Union for settling a grievance in which she voluntarily resigned her position in lieu of compensation. ERB dismissed the complaint, citing three alternative reasons. First, ERB concluded that none of Complainant's specific factual allegations tended to show that AFSCME acted with a discriminatory intent or

• therwise improper motive and there was no basis for finding that AFSCME engaged in

unlawful discrimination or acted in bad faith. Second, ERB also dismissed the complaint because Complainant, by agreeing to the terms of a separation agreement, contractually waived her right to pursue any claims against OHSU or AFSCME arising from her employment with OHSU (or termination of that employment), which includes a claim for duty of fair representation against AFSCME. Third, ERB concluded that the complaint was untimely because it was filed more than 180 days after Complainant signed the agreement. And while the discovery rule applies to PECBA's statute-of-limitations analysis, Complainant knew or should have known at the time she signed the agreement that AFSCME was not pursuing a grievance and was encouraging her to sign an agreement.

13 H. DECLARATORY RULING 22. In re Petition for Declaratory Ruling Filed by Cty. of Jefferson, No. DR-003-17, 27 PECBR 167 (Dec. 11, 2017) ERB declined to issue a declaratory ruling based on a petition filed by the employer. The health insurer had changed its prescription drug coverage practices, and the Union filed a grievance over the change and wanted to arbitrate. The employer sought a declaration that such changes were not subject to the grievance-arbitration provisions of the parties' collective bargaining agreement. ERB determined that it would not accept the case for a declaratory ruling, noting that this case appeared to be the typical contract interpretation case involving extrinsic evidence, and requiring an evidentiary hearing and that the declaratory ruling process does not provide evidentiary hearings. Further, the Union would not agree to participate and so would not be bound by any

• utcome of the ruling. And it could be expected that when the Union litigated the case,

it would offer and rely on extrinsic evidence (bargaining record, the bargaining history, and past practice). ERB has stated that it considers such determinations to be nonappealable. Practice Tips:  Unless the parties stipulate to the facts, ERB will likely not rule on contract- interpretation cases.  The best cases for a declaratory ruling, from ERB's perspective, are scope-of- bargaining and statutory-interpretation cases. III. INTEREST ARBITRATIONS 23. Multnomah Cty. / Fed'n of Or. Parole & Prob. Officers,

• No. ME-38-17L (Apr. 16, 2018) (Runkel, Arb.)—Employer

The parties had agreed on all contract provisions except wage adjustment and a certification premium. The County proposed to move to a six-step wage scale from a seven-step scale, while the Federation proposed premiums of 1 and 2 percent of base wages for intermediate and advanced certifications. The Arbitrator considered Clackamas and Washington Counties as the appropriate comparable jurisdictions. The Arbitrator rejected the Federation's efforts to include the State, noting that the statute "does not permit different political subdivisions to be considered as comparable jurisdictions." Award at 6 (internal quotation marks and citation omitted). The Arbitrator concluded that more junior employees were generally underpaid and more senior employees were paid above average. He then ruled that the County's proposal would more likely create "a more competitive pay structure for most

14 employees—and especially for those employees whose pay is now the least competitive." Award at 12. 24. City of Portland / Portland Firefighters Ass'n, IAFF Local 43, No. ME-50-16L (Dec. 29, 2017) (Cavanaugh, Arb.)—Employer This award involved the single subject of wellness programs and health insurance. The Association had proposed that it manage and sponsor a health insurance trust funded by the City, but controlled by the Union, to provide health insurance to its members. Similar trusts are utilized by Clackamas Fire & Rescue, Tualatin Valley Fire & Rescue, and the City of Vancouver. There was a 12-day hearing from which the arbitrator concluded that firefighters had unique health issues, although their utilization rates were lower than those of the overall employee population. The Association sought to establish that the City's programs and plans were insufficiently tailored to firefighter needs. Arbitrator Cavanaugh (and the parties) spent much effort analyzing whether to consider the parties' respective "clarifications" of ambiguous terms in their bargaining proposals made at the hearing. Ultimately, he concluded that the issues were moot because the award did not turn on such clarifications. The parties stipulated that only three statutory factors were relevant: the interest and welfare of the public, the reasonable-financial-ability standard, and the ability to attract and retain qualified personnel. ORS 243.746(4)(a)-(c). The decision turned on the primary statutory factor of interest and welfare of the public. The Arbitrator focused on uncertain costs to the City of the Association proposal arising from the risks of significant penalties under the Affordable Care Act because (a) the trust-provided insurance might not be considered a City-provided benefit necessary to satisfy the employer mandate, and (b) employees could opt for coverage under the insurance exchanges. The Arbitrator concluded that the Association proposal did not adequately address this risk, which, even if low in probability, would have devastating financial consequences to the City. Practice Tip: Could the employer object to the Association proposal as permissive because it addresses who is providing the benefit (a management prerogative) rather than the level

• f benefit (a matter of employment relations)?

Compare Cascade Bargaining Council v. Jefferson Cty. Sch. Dist., 83 Or App 418 (1987) (choice of insurance carrier), and Salem Police Emps. Union v. City of Salem,

• No. C-94-84, 8 PECBR 6642, 6649 (Sept. 13, 1984) (proposal requiring participation in

PERS rather than another retirement program is permissive), with IAFF, Local 696 v. City of Astoria, No. C-72-84, 8 PECBR 6604 (Aug. 13, 1984) (interest arbitrator had the power to award to firefighters a retirement program under PERS, replacing the existing private pension, because no objection was asserted during bargaining).

15 25. City of Portland, Bureau of Emergency Comm'cns / AFSCME Local 189-2, No. ME-11-16L (Apr. 26, 2017) (Roose, Arb.)—Employer Union and employer differed over wage increases and overtime incentives. The Arbitrator concluded that the most significant issue facing the workforce was retention. While the Union pointed to a national study suggesting that pay was a factor in retaining communication workers, that did not translate into the conclusion that the Union's higher wage package should control. The Arbitrator found that a more nuanced and targeted approach to the County's proposal addressed specific areas of concerns (specifically, mandatory and short-notice overtime). The Arbitrator also noted that the County's wage package was more than competitive and contained substantial improvements.