Oregon Public Sector BargainingKey Cases

Jeffrey P. Chicoine, Partner

Miller Nash LLP

Portland, OR

jeffrey.chicoine@millernash.com

503-205-2371

http://www.millernash.com/showarticle.aspx?Show=3728

www.millernash.com

(publications > additional resources > employment law and labor relations)

jeffrey.chicoine@millernash.com

GETTING SKEWERED ON THE “IN” PRONG___________________________

HARD BARGAINING PAYS OFF__________________________

DIDN’T ASK, DIDN’T TELL____________________

PASSING THE BUCK

REP / UC PETITIONS

• Only employer or exclusive representative has standing to file petition to interpret existing unit description (OAR 115-25-0005(3)); raiding union lacks standing

• Contract bar to rep petition by raiding union; will not reinterpret existing unit description as means to circumvent bar

• DAIs are not police officers under PECBA

Marion Co. Dist. Atty’sInvestigators Assn. (# 1)

REP / UC PETITIONS

Unit clarification petition under OAR 115-25-0005(3) to interpret unit description:

– Temporary employees not mentioned within unit description: ERB only consider scope of unit described in certification/recognition clause.

– Confidential Employee: City recorder but not bookkeeper excluded as confidential -- unit’s small size employer cannot justify having two excluded

City of Canyonville (# 3)

REP / UC PETITIONS

ERB standard for transfer from general into specialized unit (public works) not met:

• (1) targeted positions (IT staff) are only within part of employer's operation represented by specialized unit, and

• (2) targeted positions have "significant functional relationship" with those within specialized unit.

Lane County (# 2 )

REP / UC PETITIONS

• Supervisory status denied to senior police officer who directed reserves (but not employees) and handled various management tasks

• Lack of “administrative affinity”

City of Aurora (# 4)

REP / UC PETITIONS

Adding to strike-prohibited unit:

• Strike-permitted persons added only when roles are unique or distinct andclosely related

• Added photo radar coordinator, but not other support staff

Beaverton Police Assn. (# 5 )

REP / UC PETITIONS

Card check

• Certification without an election

• Can still challenge proposed unit

• Requires distinct community of interest

• Rule against undue fragmentation

IBEW v. EWEB (# 6)

DEFERRAL TO GRIEVANCE ARBITRATION

• ERB traditionally limited deferral to arbitration awards to breach of contract claims (ORS 243.672 (1)(g))

• ERB will postpone unilateral change claim (ORS 243.672 (1)(e)) while related grievance arbitration is pending

Eugene Police Emp. Assn. (# 7)

DEFERRAL TO GRIEVANCE ARBITRATION

• State conciliator lacks authority to stay baseless interest arbitration

• ERB orders interest arbitration stayed while grievance is pending on City’s motion after filing complaint

• ERB stays its own unfair labor practice proceeding

City of Salem (# 8)

UNION INTERFERENCE

GETTING SKEWERED ON THE

“IN” PRONG

UNION INTERFERENCE

ORS 243.672(1) states:

It is an unfair labor practice for a public employer or its designated representative to do any of the following:

(a) Interfere with, restrain or coerce employees in or because of the exercise of rights guaranteed in ORS 243.662.

UNION INTERFERENCE

243.662 Rights of public employees to join labor organizations. Public employees have the right to form, join and participate in the activities of labor organizations of their own choosing for the purpose of representation and collective bargaining with their public employer on matters concerning employment relations.

UNION INTERFERENCE“in” or “in the exercise of”

• FOCUS:– Consequences: What is the “natural and probable effect” of

the employer’s actions?

Chemeketa Comm. Coll. (# 11)

• TEST:– “whether, objectively viewed, the action that the employer

took under the particular circumstances would chill union members generally in their exercise of protected rights?”

– “Neither motive nor extent of [actual coercion] is controlling”

Josephine County, Ct of Appeals (#9)

UNION INTERFERENCE“in” prong

• Threat to withhold on-call time if a grievance is filed

• Threat to reclassify if grievance wonUmatilla County (#12)

• Threats to reclassify a position downward (even if never carried out) if a grievance is filed

Chemekatan Comm. Coll. (# 11)

UNION INTERFERENCE“in” prong

• Initial reorganization plan which adds lieutenants and maintains some sergeant positions.

• Union demands to bargain and asks questions about sergeants positions

• City submits second reorganization plan eliminating sergeant positions because of ambiguities and confusions

Dallas Police (# 13)

UNION INTERFERENCE “because”

• ASKS:–“Why did employer do what it did?”

• PROOF: –Show “employer was motivated by the

exercise of the protected right to take the disputed action.”

Josephine County, Ct of Appeals

• “because of" prong violation where City disciplined the union steward for:– emailing three private attorneys with recording of grievance

meeting on grounds it contained confidential information (conflicted with union PECBA-protected rights to obtain legal advice about a grievance), and

– conduct deemed rude and disruptive at labor-management meeting (including calling for an HR manager's resignation) because conduct (a) not pursued on a personal basis but as part of union business and (b) "not so outrageous" as to remove it from PECBA-protection.

State Department of Transportation (# 10)

UNION INTERFERENCE“because” prong

UNION INTERFERENCE“because” prong

• Contracting out mental health services to private non-profit because union went on strike

Josephine County (# 9)

• Carrying out a threat to cancel on-call work if a grievance is filed

Umatilla County (# 12 )

UNION INTERFERENCE

No “because” violation where

• Lawful reason (lack of cooperation) not unlawful reason (asserting union rights) motivated transfer

Gresham-Barlow School Dist. (# 14)

• Where employee asserting individual not PECBA-related rights and where supervisors did not know of her union activity

Eugene Charter School Professionals (# 15)

UNION INTERFERENCE

• Lessons:

– Drive defensively

• Consider context

• Offer a rationale, not tied to protected/union activity

– Beware of statements like:

• “If you file a greivance, then will just quit doing it.

• We never would have done this but for your [exercise of rights].

– Revise proposals in bargaining not before (Dallas Police)

BARGAINING DUTY

HARD BARGAINING PAYS OFF

BARGAINING DUTY

Employer did not engage in surface bargaining

• Made no concessions during reopener

• Made no proposals or counterproposals other than opening position

• Engaged in reasoned discussions in multiple sessions

• Costed proposalsUmatilla County (# 16)

• Regressive proposals are not per se violations

• 15-day mediation starts as of first mediation conference

• Discussions in IBB permit later crafting of proposal on same issue during mediation without it being considered a new issue

• E-mail bargaining and proposals by e-mail are legitimate

• ERB (especially Chair) hates it when you create your own process, which then falls apart

Rogue River School Dist (# 17 )

BARGAINING DUTY

• Mid-term duty to bargain (mandatory subjects or mandatory effects of permissive subjects)

• But when CBA specifically excludes subject not mandatory to bargain

• May bargain over effects after decision (but before implementation)

• Employer can implement for strike-permitted unit after 90-day bargaining obligation met

Three River School District (# 18)

BARGAINING DUTY

• Union failure to support TA violated

• Bargaining duty

• Ground rules agreement (breach of contract claim)

• Union violated bargaining duty when it added new proposal to its final offer

• Union did not violate bargaining duty under totality of circumstances – actually reached agreement

Hood River County (# 19 )

BARGAINING DUTY

• Union failure to support TA violated – Bargaining duty

– Ground rules agreement (breach of contract claim)

• Union violated bargaining duty when it added new proposal to its final offer

• Union did not violate bargaining duty under totality of circumstances – actually reached agreement

Hood River County (# 19 )

BARGAINING DUTY

• Employer may assert “legal position”that it does not think bargaining is mandatory, but agree to bargain, without such assertion being evidence of bad faith bargaining

Umatilla County (# 16)

Washington County (# 20)

BARGAINING DUTY

UNILATERAL CHANGE

• Circuit court ordered City to change health plans

• OTET not offer retiree coverage, so City made other insurance available

• Under ORS 243.303(2) City “shall, insofar as and to the extent possible” offer retirees same coverage as employees

• ERB held: employer need not bargain with the union over a subject that it has no control.

City of Medford (# 21)

UNILATERAL CHANGE

• Interpreting ORS 243.303(2), supreme court held:

– City did not have total discretion to purchase insurance lacking retiree coverage

– But purchase of such insurance was not an absolute mandate

– Whether local gov’t should be excused depends on facts of each case

– $900K additional cost to City?

Doyle v. City of Medford (#36)

UNILATERAL CHANGE

• Unilateral change when City failed to bargain change in salary advancement date

– No defense that change was to employees’ benefit

• No failure to bargain changes in policies relating to OFLA/FMLA or jury duty leave

– no substantive alteration because there was no prior established practice

Gresham Police Officers Assn (# 22)

UNILATERAL CHANGE

• City added public auditor to management interview team for discipline matters– Initially subject of bargaining proposal (withdrawn)– City Code amended through voter-approved measure

• First complaint filed before change made– Not ripe for breach of contract claim– Premature for unilateral change claim– Permissive subject so withdrawal permissible

Eugene Police Employees Ass'n. (# 23) – cont’d

UNILATERAL CHANGE

• Second complaint filed after change– CBA not address who on management team

– No change in status quo/no clear practice as to who on management team

• Gamson concurred: permissive subject addressing qualifications and assignment of duties

Eugene Police Employees Ass'n. (# 23)

PROVIDING INFORMATION

DIDN’T ASK / DIDN’T TELL

• Duty to provide information

– Part of duty to bargain in good faith

– If in hands of third party, at least have to ask for it; make good faith attempt to acquire

Klamath Falls Educ. Assn (# 26 )

PROVIDING INFORMATION

• City failed to provide IAFF tentative agreement

– asserting confidentiality per IAFF tent. agmt.

– but after ratification reason for confidentiality expired and City did not provide the requested information and not do so in a timely manner

Gresham Police Officers Assn. (# 24 )

PROVIDING INFORMATION

• Employer may not examine Union official at hearing about what occurred at union meeting– Based on ORS 243.672 (1)(a)

– same as in investigatory interview per prior case

• Waiver is for the member not the union

• Employer can obtain non-confidential portions of minutes of union meeting

Hood River County (# 25 )

ENFORCING ARBITRATIONS

• PSU agreement allowed employer to refuse to process grievance taken before BOLI:

– ERB held clause discriminatory and invalid

– Court of appeals remanded to apply standard

• Must be “something more” than just allowing PSU to undertake defensive measure

• “something more” must be “materially adverse”

AAUP v. PSU (# 27)

ENFORCING ARBITRATIONS

• ERB modified arbitration award to destroy rescinded discipline

– Award could not be lawfully enforced in contravention of public records rules to maintain such records for three years

– ERB ordered that the records be separately maintained and then destroyed at the expiration of the three-year period

• Gamson, Chair, dissenting

Klamath County Fire Dist No. 1 (# 28)

ENFORCING ARBITRATIONS

• Portland Board of City’s Fire & Police Disability & Retirement Fund instructed director to calculate payments consistent with revised ordinance

• ERB ruled

– this was a change in working conditions and per existing condition clause must be arbitrated

– Portland’s Board not equivalent of SEBB

Portland Police Assn (# 29)

ENFORCING ARBITRATIONS

• ERB enforced arbitration award of 8 months back pay for OT and differential pay lost during paid administrative leave

– Filing of grievance after reinstated back to regular duties did not render the award untimely or unenforceable

– Strong deference to arbitration awards

State of Oregon, State Hosp. (# 30 )

ENFORCING ARBITRATIONS

• Public policy exception ORS 243.706:

– Arbitrator reinstated corrections deputy who mistreated inmate

– ERB applied Supreme Court’s decision in Washington County decision (335 Or. 198) very broadly

– Limits public policy exception to where statute or case expressly bars employment under same circumstances

Marion County (# 31)

TIMELINESS

• Time period runs for date of occurrence, not date of discovery

North Clackamas Ed. Assn (# 33)

• Occurrence is when change is made not when it is announced.

Washington County Police Off. Assn (# 34)

TIMELINESS

• Court not decide whether discovery rule applied

– Even under discovery rule: 180-day filing period triggered when union “knew or should have known of change”

– In this case: "the change was fully implemented and the effects were fully apparent"

– Not matter that union officers had no actual knowledge

Oregon State Police Offrs. Ass'n. (# 32 )

DUES DEDUCTION

• Statute requires public employer to deduct dues

• Exorbitant cost of making deduction is not a defense

• Change is dues is not a change in status quo:

– Status quo is that dues change over time

– ERB has never treated change by union to status quo analysis

AFSCME v. Hood River County (# 35)

INTEREST ARBITRATION

PASSING THE BUCK(S)

INTEREST ARBITRATION

Marked decline in interest arbitrations

–avg. 7 per year 2000-2008–3 each in 2009 & 2010–Five Cases Addressed Overall

Financial Package–Two On Single Issues -- Sutherlin (#

5) & Beaverton (# 2)

INTEREST ARBITATION

• IA-04-08 2/27/09 Jefferson County /Jefferson County Law Enforcement Ass’n. (Brown) Association's LBO (#7)

– Last of the “little bit more” approach

– Attract and retain workforce

– Just as downturn coming on full force – not put on convincing case on financial inability

INTEREST ARBITRATION

• Next three cases dealing with financial package turned on dismal financial condition of the public employer

• Employer’s last best offer

• Each arbitrator, however, took a different approach

INTEREST ARBITRATION

• IA-14-08 8/17/09 Marion County /Marion County Law Enforcement Ass’n. (Fitzsimon) Employer's LBO (# 6)– Looked to secondary criteria (traditional approach)

– Ability to pay triumphs all• Found all other secondary factors favor Assn (big 6-

8% gap with comparables)

• Key was precision in costing & testimony re budget numbers (convincingly showed arbitrator 21 to 34 FTEs lost to layoffs; ability to explain restrictions on all contingency funds)

INTEREST ARBITRATION

• IA-08-09 4/1/10 State of Oregon, State Police /Oregon State Police Officers Association (Williams) Employer's LBO (# 4)

– Multipoint analysis:

• focus on interest and welfare of the public

• Best served by minimizing lay-offs

• Financial ability to pay: focus on priorities of unit of government (which was 24/7 coverage)

• State budget proposal leave more money to fund officers and provide 24/7 coverage

INTEREST ARBITRATION

• IA-09-09 5/23/10 State of Oregon, Department of Corrections /AFSCME (Cavanaugh) Employer's LBO (# 3)

– Step freeze and rollback

– Cost difference: $2.8 to $4 million

– Interest and welfare of the public

• State’s budget problems &

• other state units agree to these terms

INTEREST ARBITRATION

• Lessons:– Both Cavanaugh and Williams concerned

re:• imprecision in calculations

• Whether furloughs make sense for 24/7 operation and lead to cost saving (one size does not fit all units)

– Ability to pay: still big issue

– Unions leery of going to interest arbitration