EMPLOYMENT RELATIONS BOARD - oregon.gov · follmving documents the Jackson County Circuit Court issued on December 21, 2010: Opinion and Order on the Defendant's December 6, 20 l

EMPLOYMENT RELATIONS BOARD

OF THE

STATE OF OREGON

Case No. UP-053-10

(UNFAIR LABOR PRACTICE)

TEAMSTERS LOCAL 223, ) ) ) ) ) ) ) ) )

Complainant,

v.

CITY OF MEDFORD,

Respondent. ~~~~~~~~~~~~~->

RULINGS, FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER

This case was submitted to this Board on stipulated facts. The record closed upon receipt of the parties' closing briefs on December 6, 2010.

Michael J. Tedesco and Anil S. Karia, Attorneys at Law, represented Complainant.

John R. Huttl, Attorney at Law, Medford City Attorney's Office, represented Respondent.

On October 27, 2010, Teamsters Local 223 (Union) filed this unfair labor practice complaint alleging that the City of Medford· (City) unilaterally changed the status quo in violation of ORS 243.672(l)(e) by changing health insurance benefits and contribution levels for Union bargaining unit members.

On November 12, 2010, the parties moved to expedite processing of the unfair labor practice complaint under OAR 115-035-0068. This Board granted expedited consideration to the unfair labor practice complaint, and the parties submitted the case to this Board on stipulated facts.

On December 6, 2010, the City filed a timely answer to the Complaint.

The issue is: Did the City violate ORS 243.672(l)(e) by unilaterally changing Union bargaining unit members' health insurance benefits?

RULINGS

In its post-hearing brief, the City asks that we take official notice of the Written Plan the City submitted to the Jackson County Circuit Court onJanuary4, 2010 as part of the proceedings in the case of Bova v. City of lvfedford and Michael Dyal. In this plan, the City proposed changing the carrier for City employees' health insurance benefits from the Oregon Teamsters Trust (OTET) to City County Insurance Services (CIS).

An agency may take notice of "judicially cognizable facts." ORS 183.450( 4). A judicially cognizable fact is one that is "[c)apable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be que·stioned. "Arlington Ed. Assn. v.Arlington Sch. Dist. No. 3, 177 Or App 658, 663, 34 P3d 1197 (2001); ORS 40.065(2). It is appropriate to judicially notite the existence of a court record or entry and the information contained in such a document. Id. at 666 (citing Petersen v. Crook County, 172 Or App 44, 51, 17 P3d 563 (2001)). Accordingly, we will take official notice of the City's January 4, 2010 Written Plan, proposing to switch the carrier for City employees' insurance benefits from OTET to CIS.

On December 30, 2010, the City moved to supplement the record by adding the follmving documents the Jackson County Circuit Court issued on December 21, 2010: Opinion and Order on the Defendant's December 6, 20 l 0 Plan, Opinion on Defendant's Objection to Proposed Judgments, and Second Limited Judgment for Contempt. The Union objected to the City's motion.

For the reasons stated above, we take official notice of these court records as judicially cognizable facts. We observe, however, that we take official notice of the existence of these documents and their contents. We do not, however, officially notice the truth of the records' contents. Id. at 665 (citing Thompson v. Telephone & Data Systems, Inc., 130 Or App 302, 881 P2d 819, adhered to as mod on recons 132 Or App 103, 888 P2d 16 (1994)).

FINDINGS OF FACT1

1. The Union is a labor organization as defined in ORS 243.650(13), and the exclusive bargaining representative of certain City employees. The City is a public employer as defined in ORS 243.650(20).

1These Findings of Fact are based on the parties' fact stipulation which includes exhibits.

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2. The Union and City are parties to four collective bargaining agreements that expired on June 30, 2010. Approximately 200 Union bargaining unit members are covered by these agreements.

The Union bargaining unit composed of police officers is strike-prohibited. The other three Union bargaining units, which include construction and maintenance employees, park employees, and municipal mechanics, are strike-permitted.

3. The parties are currently bargaining over successor collective bargaining agreements for the four bargaining units. As of November 10, 2010, the parties had not completed their bargaining obligations under ORS 243.712. One of the issues for bargaining is health insurance benefits and contribution levels.

4. The parties :,igree that under ORS 243.712(2)(d) and 243.672(1)(e), the City is obligated to maintain the status quo with respect to employment relations during bargaining, including the mandatory bargaining subject of health insurance benefits and contribution rates.

5. The status quo ·with respect to health insurance benefits and contribution rates for police department employees is defined by Article 21. l of the expired collective bargaining agreement as follows:

"Insurance. Employees shall be covered by the following Teamster insurance plans:

"l. Medical F/W (until 8/31/2007); Medical G/W effective 9/1/2007

"2. Dental D-6 "3. Vision V-4

"The City shall contribute up to $875.00 monthly per employee for the cost of the Teamsters insurance plans from July 1, 2007, through December 31, 2007. For January 1, 2008-December 31, 2008; insurance cap shall be $875 per month. For January l, 2009 - December 31, 2009; insurance cap shall be $950 per month. For January 1, 2010 - June 30, 2010; insurance cap shall be $1,000 per month.

"In event the premium rate increase [sic] over the cap the difference shall be split 50/50 between the City and members of the bargaining unit until December 31, 2008. Beginning January 1, 2009, the premium cap in this section shall be considered the maximum city health insurance

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contribution, and any premium amount above that shall be paid by the employee. Employee portions shall be deducted from the employee's paycheck effective as of the date of such increases."

6. The status quo with respect to health insurance benefits and contribution rates for construction and maintenance employees, park employees and municipal mechanics is defined by Article 14.1 of the respective collective bargaining agreements as follows:

"Insurance - Employees shall be covered by the following Teamster insurance plans:

"l. Medical F/W until December 31, 2007 (effective January 1, 2008 Medical G/W)

"2. Dental D-6 "3. Vision V-4

"The City shall contribute up to $875 monthly per employee for the cost of the Teamsters insurance plans from July l, 2007, through December 31, 2009. Effective January l, 2010, the insurance cap shall be $925.

"In event the premium rate increase [sic] over the cap the difference shall be split 50/50 between the City and members of the bargaining unit. Employee portions shall be deducted from the employee's paycheck effective as of the date of such increases."

6. On April 7, 2008, plaintiff Joseph Bova filed a complaint against the City and Michael Dyal2 in Jackson County Circuit Court. On November 20, 2008, the Circuit Court certified a class for some of the claims for relief in the complaint. The class consisted of all current City employe-es who had been employed for at least three years prior to the date of the court's order and who had City-provided health insurance that did not include an option to continue coverage when the employee retired.

7. On July 10, 2009, the Jackson County Circuit Court filed an Opinion and Order on Plaintiffs' Motion for Summary Judgement which held that the City violated ORS 243.303(2) by failing to provide City employees with health insurance plans that included an option to elect to continue coverage after retirement.

2Dyal is City manager.

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8. On December 7, 2009, the Circuit Court filed a Limited Judgement on the First Claim for Relief which ordered the City, inter alia, to create a Written Plan for <.ximpliance with ORS 243.303 by January 2, 2010, and to implement the Written Plan by March 15, 2010.

On January 4, 2010, the City submitted a written plan to the Circuit Court. The plan proposed that the City purchase insurance from CIS Plan V-B if the City was unable to obtain a stay of the court's earlier judgment.3 The Written Plan did not mention any attempt to bargain with the Union about the change in insurance plans.

9. On July 28, 2010, the City filed a Motion for Approval of Purchase of Insurance with the Circuit Court. The court conducted evidentiary hearings on the motion.

On October 25, 2010, the court issued an Order on Motion for Contempt and an Opinion and Order on Motion for Purchase of Insurance. In the Order, the court found the City in contempt of court for failing to comply with the court's orders and judgement. The court ordered the City to change its insurance carrier and plan to CIS Plan V-B. (The current insurance carrier and provider of plan benefits for Union bargaining unit members is OTET). The court ordered the City to submit a plan explaining how it will compensate class members and class members who have retired since the class was certified for increased premium costs and out-of-pocket financial costs that class members incurred because of the change in health insurance benefits.

10. On October 25, 2010, the City notified CIS that it intended to purchase insurance through CIS. CIS confirmed that it would provide coverage to the City.

11. On October 26, 2010, the City notified the Union that to comply with the Circuit Court's Order, it will change health insurance plans from the OTET FW and GW insurance plans, as set forth in the expired collective bargaining agreements, to a crs Plan V-B insurance plan. The City told the Union that it will make this change as soon as possible, ·but no later than January 1, 2011.

12. On October 29, 2010, the City gave the required 60-day notice to OTET that the City was ending its contract with OTET.

3The City appealed the Circuit Court's January 9, 2010, judgment to the Oregon Court of Appeals and moved the Circuit Court for a stay of the judgment pending appeal. The Circuit Court denied the request for a stay. The City renewed its request for a stay with the Oregon Court of Appeals and on February 19, 2010, the Court of Appeals issued a temporary stay. On July 21, 2010, the Court of Appeals lifted the temporary stay and denied the City's request for a stay pending appeal.

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13. On December 6, 2010, the City submitted its written plan to the Jackson County Circuit Court. On December 21, 2010, the Circuit Court approved the plan with some modification.

14. The plaintiffs in Bova JJ. City of Medford and Dyal filed proposed judgments and the Circuit Court heard oral argument on the City's objections to these proposed judgements. On December 21, 2010, the Circuit Court issued a Second Limited Judgment for Contempt and an Opinion on the City's objections to the Judgment. In the Opinion, the court denied the City's objections. In the Judgment, the court, inter alia, ordered the City to pay a fine of $100 per day beginning on November 1, 2010 and continuing until all class members and class members already retired are offered the election to enroll in a policy that complies with ORS 243.303, and held that Bova and the class were prevailing parties entitled to costs, disbursements, prevailing party fees, and attorney fees under Oregon Rules of Civil Procedure 68.

15. Under the Circuit Court's October 25 Order, the City is obligated to pay the entire increase in cost of the CIS plan, along with any out-of-pocket expenses incurred by Union bargaining unit members as a result of the switch to CIS. The City is only obligated to pay such costs during calendar year 2011.

16. The Union is not a party to the proceedings in BoJJa v. City of Medford. In those proceedings, the City did not represent the Union, and the City argued that the Circuit Court had no jurisdiction over health insurance benefits, a mandatory subject of bargaining under the Public Employee Collective Bargaining Act (PECBA).

17. The increased monthly cost of providing insurance through CIS rather than OTET is approximately $247 for each municipal mechanic department employee, $297 for each construction and maintenance and parts department employee, and $519 for each police department employee.

It is estimated that it vvill cost the City approximately $75,000 monthly, or $902,000 annually, to change the insurance carrier for all Union bargaining unit members from OTET to CIS. The change to CIS will result in reduced benefits for Union bargaining unit members, a change in the manner in which Union bargaining unit members' insurance claims will be processed, and a change in the pool of covered employees for experience ratings for health care insurance.

18. As a result of the Circuit Court's October 25 Order, the Cityvvill be unable to fund other areas of employee salaries and wages due to a large increase in health insurance costs.

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19. In bargaining, the Union does not and has not proposed to change the status quo in regard to the current health care provider and benefit plan.

20. The City and Union agree that health insurance plan composition is a mandatory subject of bargaining under ORS 243.650 et seq. The parties also agree that the impact of the Circuit Court's October 25 Order on mandatory subjects of bargaining such as wages and other benefits will be significant given the increased cost of the CIS insurance plan.

21. The Jackson County Circuit Court's October 25 Order forced the City to change the health insurance coverage for Union bargaining unit members outside of the collective bargaining process.

22. The Union and City agree that by virtue of the Circuit Court's October 25 Order, the City cannot maintain the status quo. But for the Court's Order, the City would negotiate with the Union before changing health care benefits.

CONCLUSIONS OF LAW

1. This Board has jurisdiction over the parties and subject matter of this dispute.

2. The City did not unilaterally change Union bargaining unit members' health insurance benefits in violation of ORS 243.672(l)(e).

The Union alleges that the City violated ORS 243.672(1)(e) when it unilaterally changed Union bargaining unit members' health insurance benefits and contribution rates. According to the Union, the City's actions constituted an unlawful change in the status quo because the City made the change before it completed its good faith bargaining obligation.

It is an unfair labor practice for a public employer to "[r]efuse to bargain collectively in good faith with the exclusive representative." ORS 243.672(l)(e). Ordinarily, an employer's good faith bargaining duty under subsection (l)(e) includes the obligation to maintain the status quo during the hiatus period between collective bargaining agreements by maintaining conditions of employment which are mandatory subjects for bargaining. The hiatus period occurs after the parties' collective bargaining agreement has expired and before the parties have completed their bargaining obligation for a new agreement under the PECBA. V\jl'East Education Association/East County Bargaining Council v. Oregon Trail School Dist1ict No. 46, Case No UP-32-05, 22PECBR108, 139 (2007); ORS 243.756. A public employeris not, however, required to bargain about a change in a mandatory subject of bargaining over which it has no control. Clackamas County EmplqyeesAssociation v. Clackamas County, Case No. UP-38-03,

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20 PECBR 905, 915 (2005); Bend Firefighters Association v. City of Bend, Case No. UP-55-95, 16 PECBR 378 (1996); Oregon State Police Officers Assn. v. State of Oregon, 127 Or App 144, 871 P2d l.018 (1994), affirming 14 PECBR530 (1993); Oregon State Police Officers Association v. State of Oregon and the Oregon Department of State Police, Case No. UP-79-88, 11PECBR332 (1989); Federation of Oregon Parole and Probation Officers v. Dept. ofCorrectio11s, 322 Or 215, 905 P2d 838 (1995), affinning 14 PECBR 739 (1993).

In Clackamas County, 20 PECBR 905, we held that the employer was not obligated to bargain over who would provide services under a federal grant because under federal law, an entity other than the employer was designated to make that determination. In Be11d Firefighters Association v. City of Bend, 16 PECBR 3 7 8, we concluded that the city was . not obligated to negotiate about a requirement that employees contribute 6 percent of their salary to a retire111ent system because a new law required them to do so. In Oregon State Police Officers Assn. v. State of Oregon, 14 PECBR 530 and Oregon State Police Officers Association v. State of Oregon and Oregon Department of State Police, 11 PECBR at 341, we held that the state was not required to bargain about employees' parldng fees because a separate state agency had exclusive statutory authority to establish parking rates. In Federation of Orego11 Parole v. Dept. of Corrections, 322 Or at 223, the Oregon Supreme Court held that the state was not obligated to negotiate the decision to transfer employees from the state to the county, or bargain about post-transfer employment terms and conditions for the affected employees. The Supreme Court reasoned that by law, the county had sole authority to make the transfer decision and to negotiate the transferred employees' terms and conditions of employment. The rule we derive from these cases is that an employer need not bargain about mandatory working conditions over which it has no control.

Here, the City had no control or authority over changes in a subject that the parties agree is mandatory for negotiations-insurance benefits for Union bargaining unit members. The City changed benefit plans because the Jackson County Circuit Court ordered it to do so. We conclude that the City did not violate its good faith bargaining duty under subsection (1 )( e) by making a unilateral change it could neither control nor countermand.4

"The Union contends that the City, and not solely the Jackson County Circuit Court, bears responsibility for the order requiring the City to change insurance plans for Union bargaining unit members. According to the Union, the City submitted a January 4, 2010 Written Plan to the Court that included no mention of any bargaining obligation. The Union contends that the Court's failure to order the City to bargain resulted from the City's failure to address this issue in its Written Plan.

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Both the City and Union ask that we conclude that the Jackson County Circuit Court exceeded its jurisdiction by ordering the City to make an unbargained change in a mandatory subject for negotiations. The parties contend that such matters are subject to the exclusive jurisdiction of this Board. They urge us to order the City to cease and desist from changing Union bargaining unit members' insurance benefits, and to petition the appropriate Circuit Court to enforce our order under ORS 243.766(4). We decline to do so. We do not believe it would further the parties' interests or the interests of justice to issue an order requiring the City to act contrary to the Circuit Court's Order. If either party believes the Circuit Court Order is wrong, its recourse is to the Oregon Court of Appeals.5

ORDER

The complaint is dismissed.

DATED this d day of January, 2011.

Vickie Cowan, Board Member

Susan Rossiter, Board Member

This Order may be appealed pursuant to ORS 183.482.

We find nothing in this record to support the notion that the City somehow invited the court's Order. To the contra1y, the City appears to be as unhappy about the Order as the Union, although for different reasons. We refuse to speculate about the motives for, or the reasoning behind, the Court's October 26, 2010 Order. Instead, we look to the clear and unambiguous language of that Order, and conclude that the City's actions to comply with the Order do not constitute an unlawful unilateral change.

5We observe that the Circuit Court enforced ORS 243 .303, a statute outside the PECBA. In general, public employers are not required to bargain before they can comply with the law.

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OF THE

STATE OF OREGON

Case No. UC-12-09

(UNIT CLARIFICATION)

ADMINISTRATIVE-PROFESSIONAL ASSOCIATION OF LANE COUNTY PUBLIC WORKS, INC.,

Petitioner,

v.

LANE COUNTY,

Respondent,

and

AFSCME LOCAL 2831,

Incumbent.

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

~~~~~~~~~~~~~~-)


None of the parties objected to a Recommended Order issued on September 20, 2010, by Administrative Law Judge (ALJ) B. Carlton Grew after a hearing held on July 13, 2009, in Salem, Oregon. The record closed on August 24, 2009, with the submission of the parties' post-hearing briefs.

Patricia B. Urquhart, Attorney at Law, Garrettson, Gallagher, Fenrich & Makler, Portland, Oregon, represented Petitioner.

Pierre Robert, Assistant County Counsel, Lane County, Eugene, Orego.n, represented Respondent Lane County.

Allison Hassler, Legal Counsel, Oregon AFSCME Council 75, Eugene, Oregon, represented Incumbent AFSCME.

On April 28, 2009, the Administrative-Professional Association of Lane County Public Works, Inc. (Association) filed this Petition seeking to transfer the following ten positions from the AFSCME Local 2831 (AFSCME or Local) unit to the Association unit: Database Administrator, Information Services Analyst, Senior Information Services Analyst, Information Services Technician, Programmer Analyst 1, Programmer Analyst 2, Senior Programmer and Systems Analyst, System Network Analyst I, System Network Analyst 2, and Senior System NetworkAnalyst. 1 On May 5, 2009, AFSCME filed its objections. Lane County (County) has taken a neutral position on the issue.

The issue is: Do the petitioned-for positions, which are currently part of the bargaining unit represented by AFSCME, more appropriately belong'in the bargaining unit represented by the Association?

RULINGS

At hearing, the Association offered Exhibit P-53. AFSCME objected on the grounds that the exhibit had not been provided to it within the time frame set out in the ALJ's pre-hearing letter. The Association responded that AFSCME had previously asserted, in an e-mail to Association Counsel, that it would not raise such an objection, and also provided that e-mail as an exhibit. The ALJ properly admitted Exhibit P-53.

The remaining rulings of the ALJ have been reviewed and are correct.

10n April 30, 2008, the Association filed a unit clarification pet1t10n under OAR 115-025-0005(6) to transfer these Information Services positions and several positions in the Land Management Transportation Planning and Traffic Divisions of the Lane County Department of Public Works into the existing Association unit. After this Board informed the Association that the petition was untimely, the Association amended its petition on May 7, 2008, to a representation petition. The representation petition ultimately sought to include the following positions in the Association bargaining unit: Administrative Analyst, Building Inspector 2, Senior Building Inspector, [Cartographer] Cadastral/GIS Technician, [Cartographer) Cadastral/GIS Specialist, Compliance Officer, Compliance Specialist, Database Administrator, Information Services Technician, Information Services Analyst, Senior Information Services Analyst, Land Management Technician, Management Analyst, Plans Examiner 1 and 2, Programmer Analyst 1, Programmer Analyst 2, Senior Programmer and Systems Analyst, Property Management Officer 1 and 2, System Network Analyst 1, System Network Analyst 2, Senior System Network Analyst, Associate Planner, Senior Planner, and Associate Surveyor. This Board dismissed the petition on February 26, 2009. AdmiuistratiFe-Professioual Association of Lane Counry v. Lane Counry and AFSCME Local 2831, Case No. RC-10-08, 23 PECBR l (2009).

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FINDINGS OF FACT2

1. The County is a public employer under ORS 243.650(20). AFSCME and the Association are labor organizations within the meaning of ORS 243.650( 13) and the exclusive representatives of separate bargaining units of County employees.

2. The~e are seven bargaining units in the County. AFSCME represents a unit of approximately 700 employees, including the employees at issue in this petition, and a separate unit of County nurses.3 The Association represents 96 engineering, parks, and infrastructure support employees in the Public Works Department. The Lane County Public Works Association Local 626 represents mechanics and road workers in the Road Maintenance and Fleet Divisions of the Public Works Department, and some other employees. Other bargaining units are: Lane County Peace Officers Association (strike-prohibited deputy and correction sheriffs and juvenile detention workers); Federation of Parole and Probation Officers (strike-prohibited parole and probation officers); and the Prosecuting Attorney's Association (deputy district attorneys).

Current Association Bargaining Unit Positions and the Department of Public Works

3. The Lane County Department of Public Works consists of eight divisions: Engineering and Construction Services, Transportation Planning and Traffic, Road Maintenance, Administrative Services, Land Management, Waste Management, Parks, and Fleet Services. The Land Management Division includes planning, surveying, building inspection, and sanitation functions. The Transportation Planning and Traffic Division includes planning, traffic engineering, and Geographical Information System (GIS) functions. ·

4. The Association bargaining unit description is a list of the following positions in the Public Works Department: Bridge Supervisor, Lead Electrician,

2The parties stipulated that this Board may consider the testimony presented at the July 2008 evidentiary hearing in RC-10-08 as it pertains to the ten positions currently at issue, specifically the testimony ofJohn Baldwin, Tony Black, Brad Carpenter, Roland Hoskins, Rhett Karr, and Jim Steiner. The parties also stipulated to the following Findings of Fact entered in that matter: 1, 2, 3, 6, 18, 20, 21, 22, 23, 24, 25, 26, 31, 34, 39, 41,43, and 44. The Findings of Fact in this case are based on these stipulations of the parties and the record of the hearing in this case.

"The parties do not argue that the AFSCME nurses' unit is relevant to the issues raised by this Petition; as used in this Recommended Order, phrases such as "the AFSCME unit" refer to the 700 employee unit.

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Engineer-in-Training, Engineering Aide, Engineering Assistant, Engineering Associate, Senior Engineering Associate, Engineering Technician 1, Engineering Technician 2, Environmental Engineering Specialist, Lead Mechanic, Nuisance Abatement Specialist, Park Planner, Parks Superintendent, Parks Supervisor, Public Works Administrative Assistant, Public Works Analyst, Senior Public Works Analyst, Real Property Officer 1, Real Property Officer 2, Senior Real Property Officer, Road Maintenance Supervisor, Safety Coordinator, Shop Supervisor, Sign Shop Supervisor, Solid Waste Supervisor, Associate Surveyor, Senior Surveyor, Vegetation Management Coordinator, Waste Management Technician Specialist, Waste Reduction Specialist, Lead Worker, and Lead Worker-Parks.

Association Bargaining Unit Positions: General Facts

5. The primary function of the Department of Public Works is to build and maintain County roads, paths, bridges, parks, and related infrastructure. All Public Works employees work in, or are based in, the Delta Complex work site, located a significant distance from the Public Service Building where the largest number of AFSCME bargaining unit employees work. All Association-represented employees work within the Department of Public Works. Eight Information Service (IS) Department positions at issue in this case are stationed at that location, as are some other AFSCME bargaining unit employees. 4 There is no evidence in the record that Association-represented employees working at the Delta Complex have significant contact with any AFSCME bargaining unit employees other than the AFSCME bargaining unit members who also work at the Delta Complex. All Association bargaining unit employees are strike-permitted.

6. All of the positions in the Association bargaining unit are unique to that bargaining unit and to the Public Works Department. There is no evidence that any employees in the positions at issue in the Public Works Department have ever transferred into or out of that department.

7. The Association bargaining unit employees work at offices and shop settings in the Delta Complex; most of them also do extensive work in the field, often

4The IS Department positions stationed at the Public Works Department are not identified in the record and are not listed in the Public Works' organization charts. The Lane County Public vVorks Association Local 626 represents mechanic and road workers in the Road Maintenance and Fleet Divisions, and some other employees. The other AFSCME bargaining unit employees assigned to the Public Works Department include the following positions: Administrative Assistant, Administrative Secreta1y, Clerical Assistant, Office Assistant 2, and Senior Office Assistant.

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in inclement weather. Many do significant physical work such as clearing brush or moving and operating survey equipment. They are exposed to the hazards of working outdoors, working with heavy mechanical equipment, working with pesticides, and working around vehicle traffic.

8. Twenty-two of the 33 Public Works Department positions in the current Association bargaining unit are exempt from. paid overtime: Bridge Supervisor, Engineer-in-Training, Engineering Associate, Senior Engineering Associate, Environmental Engineering Specialist, Park Planner, Parks Superintendent, Parks Supervisor, Public Works Analyst, Senior Public Works Analyst, Real Property Officer 2, Senior Real Property Officer, Road Maintenance Supervisor, Safety Coordinator, Shop Supervisor, Sign Shop Supervisor, Solid Waste Supervisor, Associate Surveyor, Senior Surveyor, Vegetation Management Coordinator, Waste Management Tech Specialist, and Waste Reduction Specialist. It appears from the job descriptions that at least 21 of the 33 positions involve a significant amount of work outdoors in the field.

Bridge Supervisor

9. The Bridge Supervisor (annual salary $41,266-$57,158) plans, organizes, and supervises the County bridge program, including administration and field maintenance operations. The position receives direction from the Road Maintenance Manager and exercises direct supervision over assigned maintenance personnel.

10. The duties of this position include: supervising a bridge crew in the maintenance or rehabilitation of wooden, concrete, or steel bridges, including installing safety features, painting, and removal and replacement of wood, steel, or concrete bridge components. The position also participates in budget preparation and administration; prepares cost estimates for budget recommendations; submits justification for equipment, tools, and personnel; monitors and controls the budget; keeps records of time worked, materials used, job costs, and other similar records; requisitions necessary supplies and equipment as needed on bridge projects; evaluates operations and activities; recommends improvements and modifications; prepares estimates and various reports on operations and activities; provides or coordinates staff training; and implements discipline procedures. The position also coordinates activities vvith other. agencies, answers questions, provides information to the public, and investigates complaints and recommends corrective action as necessary.

11. The minimum qualifications for this position include knowledge of the following subjects: equipment, tools, and materials of bridge and road maintenance and basic construction; construction safety; training, supervision, and performance management; budget monitoring and financial record-keeping; and relevant local, state,

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and federal laws, ordinances, and rules, including those dealing with environmental impact. The position requires the ability to organize, implement, and monitor bridge maintenance operations; interpret and explain engineering plans, specifications, and bridge inspection reports; maintain accurate records; prepare cost estimates and reports; maintain effective working relationships ·with those contacted in the course of work; communicate clearly and concisely; and supervise, train, and evaluate staff.

12. The position requires experience or training equivalent to the completion of the twelfth grade; three years of increasingly responsible experience in road or bridge constntction and maintenance, including one year oflead responsibility; or an equivalent combination of experience and training. The employee must possess an Oregon Class A Commercial Driver's License (CDL), medical card, and appropriate endorsements.

Lead Electrician

13. The Lead Electrician (annual salary $39,250-$54,413) supervises and participates in the maintenance and repair of traffic signals and controllers; assigns and reviews the work of personnel; and performs related duties as assigned. The position receives direction from the Traffic Engineer, and exercises technical and functional supervision over technical personnel.

14. The duties of the position include supervising and participating in the maintenance, repair, or installation of traffic signals and controllers; planning and revievving other employees' work; inspecting new installations and repair work; maintaining safety and quality standards; identifying maintenance and repair needs and recommending corrective action; providing technical staff assistance to other divisions on projects and equipment; maintaining daily records of equipment, personnel, and materials; preparing requests for equipment and supplies; responding to citizen complaints and inquiries regarding traffic signal operations; performing the most complex electrical maintenance and repair duties; and performing electrical maintenance and making improvements in department buildings, including pulling telephone and computer cable.

15. The minimum qualifications for the position include knowledge of the following subjects: materials, methods, equipment, and tools used in electrical work; methods of estimating time, cost, and equipment necessary to perform work; occupational hazards and standard safety precautions necessary in work; principles of supervision and training; and pertinent state and local ordinances and laws.

16. The position requires the ability to: read and interpret electrical diagrams and drawings; maintain accurate and complete records; respond courteously and tactfully

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to public inquiries and complaints; perform complex and dangerous duties in a safe and efficient manner; train and schedule personnel; establish effective working relationships with those contacted in the course of work; and communicate clearly and concisely.

17. Experience and training required for the position are: completion of the twelfth grade and three years of responsible journey-level electrician experience, or an equivalent combination of experience and training. The employee must also possess an Oregon Electrician's license.

Engineer-in-Training

18. The Engineer-in-Training position (annual salary $39,250-$54,413) is the first step in a career progression that continues to the Engineering Associate classification. The position plans, organizes, and performs engineering assignments in roads, streets, strnctures, traffic, and related public works engineering and specialty functions, including civil, structural, geo-technical, and other engineering disciplines. It is an entry-level engineer position. The position is responsible for completion of moderately difficult professional engineering assignments on time and ·within budget for a wide variety of projects and may also serve as an interagency liaison. The position may exercise functional and technical supervision over technical and support staff and temporary help.

19. The duties of the position may require the employee to: perform and coordinate engineering, planning, and design functions; formulate and evaluate design alternatives; write project provisions and specifications; guide design review functions; assist other staff on design projects; perform or coordinate project management; write contract specifications and prepare cost information; schedule work; inspect constniction and perform specialized tests; field check progress; assist with negotiating change orders and approving payment requests; and keep project records and verify project completion and final reports. The position also uses and maintains computer programs in design and constn1ction of public works projects, including Geographic Information Systems ( GIS); performs or coordinates project databases and information technology functions such as analysis and defining of software and supplemental system needs; prepares spreadsheet computations and performs internet research and development; facilitates communication between parties involved in engineering functions including management, technicians, consultants, contractors, vendors, and other agencies; investigates concerns and responds to inquiries; makes recommendations and appropriate reports; performs project leadership and communication functions such as scheduling day-to-day activities, coordinating County and contractor functions, and leading public involvement processes; and assists in supervision of technical and support staff.

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20. The minimum qualifications for the position include knowledge of the following subjects: principles of civil engineering; project management; engineering presentation; communications and report preparation; information systems, Internet technology, and software applications; policy development and implementation; supervision, training, and personnel management; pertinent local, state, and federal laws and ordinances; and office methods and computer equipment.

21. The position requires the ability to: plan, organize, and coordinate engineering specialty projects; operate Global Positioning System ( GPS) data collection equipment and maintain GIS databases; develop a wide variety of reports .and collaborate with individuals representing a variety of disciplines, interests, and organizations, and with people of diverse ethnic and socio-economic backgrounds; interpret and apply relevant County guidelines and federal, state, and local laws, rules, regulations, and policies; administer a variety of general and specialty activities and help provide technical and functional supervision; analyze situations, develop alternative solutions, present sound recommendations; maintain effective working relationships with those contacted in the course of work; and communicate clearly and concisely.

22. Experience and training required for the position are: a bachelor's degree from an accredited college or university in civil engineering or a related field and some directly related engineering experience, or an equivalent combination of experience and training, and possession of Engineer Intern or Engineer-in-Training certification.

Engineering Aide

23. The Engineering Aide (annual salary $20,634-$28,621) performs tasks of limited technical skill. It is filled mainly during the summer to assist on special engineering projects. Since this position is typically used for nontechnical, unskilled labor, employees may have no directly related work experience. The position receives direct supervision from a supervisor or lead worker.

24. The duties of the position may include assisting a field survey party by carrying equipment; clearing brush and other obstacles from transit line; assisting in directing traffic around crews on work projects; assisting higher-level engineering employees in the materials and soils labs by performing such duties as taking material receipt tickets; and assisting in performing simple drafting on engineering plans, maps, charts, and graphs.

25. The minimum qualifications of the position include knowledge of basic safety practices; proper use of a variety of hand tools and simple engineering

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instnunents; and simple arithmetic. The position requires the ability to follow written and oral instructions, and perform arduous manual tasks.

26. Experience and training required are education equivalent to the completion of the twelfth grade or an equivalent amount of experience and training.

Engineering Assistant

27. The Engineering Assistant (annual salary $27,102-$37,586) assists engineering or surveying staff in the performance of basic field and office work by acting as survey party aide, traffic aide, inspection aide, engineering office aide, or material testing aide. The position provides support to Engineering Technicians through routine types of surveying, inspection, materials testing, drafting, and office engineering. The position prepares an employee for advancement into Engineering Technician positions, and employees may have no directly related work experience. The position receives specific and frequent supervision from supervisory personnel.

28. The duties of the position may include: (1) working as a member of a survey crew on public improvement and survey projects; acting as a flagger; giving line; setting survey markers and reflectors; clearing brush; acting as a stake, rod, or chain person; assisting in establishing line and grades, renmning lines, and taking before and after cross-sections; performing basic elements of fundamental survey and mathematical computations; (2) assisting a higher level inspector on public improvement projects; checking constntction materials for size, quantity, and quality; collecting contractor invoices; performing routine inspections and engineering calculations; receiving inspection information and recording project data; verifying accuracy of information and correcting errors; checking field notes, calculating land areas, and performing other basic office engineering work; (3) assisting in the installation, maintenance, repair, and use of traffic counting equipment; compiling and interpreting data for reports; performing routine drafting; plotting cross-sections and profiles and field survey data; drafting construction plans using office engineering equipment including computer-assisted drafting; assisting higher level materials inspectors on public improvement projects; assisting in field studies; and (4) sampling soil, asphalt aggregate, and concrete; assisting in field or laboratory testing; assisting the public as necessary; answering questions; performing research; preparing legal documents for road right-of-way dedication, and checl<lng survey maps for compliance with code requirements; indexing and maintaining survey related records; and performing various office functions.

29. The minimum qualifications for the position include knowledge of the following subjects: basic arithmetic; fundamentals of algebra, plane geometry, and trigonometry; basic practices of drafting, surveying, and public works construction and data collection; and work site safety.

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30. The position requires the ability to: read and plot property deed descriptions; trace and letter architectural or engineering drawings; use computer-assisted drafting tools; operate and maintain equipment or instnunents; learn basic laboratory soil sampling and testing procedures; research legal documents; maintain accurate notes; follow written and oral instnictions with care and accuracy; prepare simple reports and keep accurate records; perform physical labor in varying weather and terrain; maintain effective working relationships with those contacted in the course of work; work extended hours as necessary; and communicate clearly and concisely.

31. Experience and training required for the position are: completion of the twelfth grade and one year of para-professional civil engineering or surveying experience, or an equivalent combination of experience and training.

Engineering Associate

32. The Engineering Associate (annual salary $40,227-$55,765) performs engineering, including waste inanagement and environmental engineering, GIS, boundary, geodetic surveying and preservation of public land survey corners, or surveying duties relevant to area of assignment;5 determines the location, design, or construction of roads and sanitary landfills in part through land and construction surveys; prepares permit applications, reports, plans, designs, specifications, and legal descriptions; prepares construction material investigations and design properties of constniction materials; performs construction inspection and documentation; performs duties related to investigating and processing of subdivision plats, legal road proceedings, and land survey matters; and plans the work of less experienced personnel.

33. This is the entry/journey level in the Engineering Associate series. Employees initially perform less complex duties. As employees gain experience, they are expected to perform the full range of duties with a decreasing need for detailed supervision and oversight by higher classifications, and to be fully aware of policies and procedures of the work unit. The position receives general direction from supervisory personnel who review the work to ensure compliance with standards, rules, and regulations. The position may exercise supervision over technical personnel.

34. The duties of the position may include: ( 1) performing field and office survey activities on public works improvement, sanitary landfill construction, survey, and other projects; training and maintaining the work standards of one or more survey crews

5Much of the evidence in the record-particularly the job descriptions for the positions at issue-contains technical words and phrases that are not defined, and lists duties and responsibilities that are not explained. We recite the evidence as the parties presented it to us.

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to meet established project requirements and applicable Oregon survey laws; caring for survey instnunents; performing complex surveys and calculations using electronic survey equipment, calculators, and computer programs; using conventional or computer-aided drafting equipment to draft engineering surveys; researching and preparing reports, and computing, checking, and analyzing surveys; performing all functions related to constniction surveys including alignments, staking of slopes, drainage, finish grades, bridge, and incidental structures; (2) performing surveys including geodetic control which may include the use of GPS equipment, preservation of government corners, and boundary surveys; ensures accuracy of field notes and project records; designing highways, streets, and other public works improvement projects; preparing final construction plans and drafting contract specifications; developing data processing applications for engineering and surveying work; overseeing and coordinating the use and maintenance of computer programs in all phases of design and construction of public works projects, including GIS; (3) performing field inspections and contract documentation on complex public works improvement projects; inspecting, accepting, or rejecting construction materials for quantity and quality, and enforcing contractor compliance to plans and specifications on one or more projects; reviewing, collating, and recording project data in preparation of input into computerized record systems; preparing 'As Constructed' drawings; obtaining preliminary data and computing quantities for asphalt overlay projects; preparing deed and right-of-way descriptions, preliminary road alterations, legalizations, vacations, and establishment documents utilizing necessary records, research, and computations; ( 4) preparing analysis, recommendations, and reports for land use referrals, planning studies, environmental studies, project alternatives, or permit applications; (5) assisting citizen groups, committees, other agencies, and the general public on issues related to County projects, plans, programs, and permits; coordinating activities with outside agencies, contractors, and the public; (6) performing field and laboratory testing of materials used in the construction of transportation facilities; performing field investigations; identifying, classifiying, and designing properties of construction materials; accepting or rejecting constn1ction materials for quality and conformance to applicable specifications; recording characteristics of materials incorporated into the project by the contractor; reviewing, collating, and recording data received from technicians; (7) performing subdivision and condominium administrative duties ranging from preliminary referrals to final recording, including calculation checks, title reports, legal matters, and submitting agendas; and (8) representing the County at public meetings, advisory committee meetings, and professional meetings.

35. The minimum qualifications of the position include knowledge of the following subjects: general mathematics, including trigonometry, algebra, geometry, and statistics as applied to engineering and surveying computations; computer-aided drafting and design; principles of civil engineering, surveying, and public works construction;

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basic principles of environmental protection, control, and measurement; GIS a1id computer-assisted drafting equipment, software, techniques, and applications; office procedures and computer equipment; pertinent laws, ordinances, and codes; principles of occupational safety; professional surveying concepts, theories, principles, practices, and methods ofland, geodetic, and construction surveying; Oregon laws and regulations as applied to boundary surveying and property development; principles of electronic survey equipment, including GPS equipment; principles of construction surveying and materials testing; principles, procedures, and applications of sampling, testing, and design properties of soil, aggregate, asphalt, and concrete materials used in construction and practices of quality control sampling, and testing of constntction project materials; principles of transportation systems planning, corridor studies, and project planning; land use planning as it relates to transportation facilities; capital improvement programming; principles of street and highway design; county, state, and federal standards for design of streets and highways; principles of landfill design, constn1ction, and operation; county, state, and federal standards for the design, construction, and operation of sanitary landfills and transfer stations; and principles of property deed descriptions and right-of-way descriptions.

36. The position requires the ability to: interpret and apply pertinent local, state, and federal rules, regulations, and laws, and county, state, and federal design standards; effectively utilize field survey instrnments or traffic control devices; read and understand engineering plans and specifications; conduct research and prepare documentation; plan and supervise the work of other employees; determine the design and application of the properties of material used in construction, and perform quality control sampling and testing of construction project materials; research and prepare technical reports, letters, or plans; prepare constntction drawings and draft specifications for contracted construction projects; prepare accurate field notes; perform physical labor in varying weather and terrain; prepare accurate scale base maps, cross-sections, and profiles; interpret and apply computer programs to engineering problems; operate GPS data collection equipment and related software; maintain GIS databases; perform duties independently with care and accuracy; maintain effective working relationships; communicate clearly and concisely; and structure a safe working environment in proximity to highway traffic and constn1ction equipment.

37. Experience and training required for the position are: the equivalent of a bachelor's degree from an accredited college or university vvith major course work in civil engineering, surveying, environmental science, geography, or a related field, and three years of responsible civil engineering, waste management engineering, GIS mapping/maintenance, or surveying experience; or an equivalent combination of experience and training.

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Senior Engineering Associate

38. The Senior Engineering Associate (annual salary $45,510-$63,066) performs highly responsible engineering work, including waste management and environmental engineering, GIS, or surveying duties relevant to area of assignment, which may involve planning, administration, location, design, or construction of roads and sanitary landfills, which may include geodetic, preservation of government corners, and GPS boundary and construction surveys. Additional duties include preparing permits, reports, plans, designs, and legal documents and descriptions; providing qualifications and design properties of construction materials; performing constntction inspections and documentation; and planning and supervising the work of less experienced personnel.

39. This is the advanced journey level position in the Engineering Associate series, and differs from the Engineering Associate by the level of responsibility assumed and the complexity of duties. Employees perform the most difficult and responsible types of duties within this series which include leading, directing, and facilitating team solutions to, and designs for, project-level assignments. Employees at this level are required to be fully knowledgeable in all procedures related to their areas of responsibility and in Department and County policies and procedures. The position receives general direction from management personnel who review work for adherence to relevant standards, and exercises direct supervision over technical personnel.

40. The Senior Engineer Associate performs the following tasks: ( 1) directs field and office surveying activities on public works improvement, sanitary landfill construction, and survey and other property development projects; directs the work of survey crews and office support staff to meet project requirements and pertinent Oregon survey laws; obtains all necessary survey records for the planning and implementation of project smveys, including oversight of survey research, preliminary surveys, location and establishment of government and property corners, preparation of topographical base maps, and establishment of land survey controls; plans and supervises annual GPS surveys for road and common mapping; (2) acts as design team leader over all phases of the design of public works improvement projects, including preparation of construction plans and contract specifications; acts as team leader over preparation of property deed and right-of-1,vay descriptions for acquisition of property for public works projects, including road record research, survey research, road alterations, legalization maps, vacations, and establishment documents; (3) directs field and office activities in the sampling and testing of construction materials; performs field investigations for road and structure projects; maintains quality control and documentation of construction materials incorporated into projects, including Federal Aid projects; prepares reports and

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makes recommendations for roadway base, pavement thickness designs, and cites potential geotechnical and site construction problems; directs field and office operations of several survey crews for the preservation of government corners annual projects; ( 4) provides information to citizen groups, committees, other agencies, and the general public on engineering, survey, and planning issues; organizes and provides staff support for public meetings on projects or transportation issues; directs field and office activities in construction inspection and contract documentation on public works improvement projects; ensures contract compliance to plans and specifications on construction projects; checks quality and quantity of materials furnished by contractors; (5) advises subordinate employees on details of work; reviews contract change order costs, checks estimates for completeness, and determines final contract costs; compiles data for weekly reports; has the authority to suspend non-specification work; and ( 6) reviews design and complete construction plans for land use applications which may include periodic inspection during constn1ction to determine conformance with plans and specifications; prepares reports and recommendations, in response to land use applications, based on pertinent Oregon law, Lane County Code, and existing or planned county transportation system; represents the County at public meetings, adviso1y committee meetings, and professional meetings; oversees administrative duties and processing of subdivision and land partition plats; and coordinates the development and maintenance of GIS databases or road information system databases.

41. The minimum qualifications for the position include knowledge of the follmving subjects: principles of civil engineering or field surveying; principles of environmental protection, control and measurement; development and maintenance of GIS databases or road information system databases and related software; pertinent local, state, and federal rules, regulations, and laws pertaining to area of assignment; principles of training and supervision; professional surveying principles and methods as applied to highway constiuction, land survey work, and property development; Oregon laws, rules, and regulations as applied to land surveying; State Plane Coordinate System; and principles of geodetic surveying. In addition, positions in specific areas of responsibility (Survey, Inspector, Soils Laboratory, Transportation Planning, Solid Waste, Design, and Right of Way) require specific, additional qualifications. For example, the Senior Engineering Associate - Inspector must have knowledge of inspecting highway construction plans and specifications, principles of constniction surveying, and materials testing; Soils Laboratory must have knowledge of principles, procedures, and applications of soil, aggregate, asphalt, and concrete materials testing, engineering geology and geotechnology; and procedures of highway construction.

42. Experience and training required for the position are: the equivalent of a bachelor's degree from an accredited college or university with major coursework in civil engineering, environmental science, geography, or a related field; three years of

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increasingly responsible experience in civil engineering, waste management engineering or surveying, GIS mapping/maintenance, including one year oflead responsibility; or an equivalent combination of experience and training.

Engineering Technician l

43. The Engineering Technician l (annual salary $30, 65 9-$42, 4 7 4) performs a variety of technical office, field engineering, environmental, and waste management engineering, GIS, and survey support work involving drafting, mathematical calculations, construction inspections, lab testing, and field surveying, and collection and analysis of data.

44. This is the entry level position in the Engineering Technician series. Employees at this level receive specific supervision and instruction while learning job tasks, but as experience is gained with repetitive tasks the degree of supervision lessens. Employees at this level are assigned less complex projects than higher level employees. The position receives supervision from supervisory personnel.

45. The duties of the position may include: ( l) preparing maps and drawings on a variety of public works or survey projects; performing drafting design work and calculations using computer-assisted drafting or manual techniques; performing various office functions; maintaining engineering base maps, reports, and drawing files; entering map features and creating basic maps performing geoprocessing, using various databases and files which include legal documents such as deeds, recording easements, surveys, plats, and geographic and demographic data sources; preparing letter charts, graphs, maps, plans, and other drawings; preparing drawings on existing improvements, rights-of-way, and other utilities using field notes, maps, and photographs; checldng calculations used in designs and estimates; (2) working as a member of a survey crew on public improvement and survey projects whose responsibilities are: caring for survey instruments; working as a chain or level person using theodolite or level on simple line or cross-section work; recording data in field notes or other project records; performing basic surveying computations using calculators involving highway curves, traverse work, plane coordinates, government corner retracement, and GPS functions; assisting in staldng of alignments, slopes, drainage, finish grades, incidental structures, and establishing right-of-way markers; (3) performing field and laboratory testing of materials; assisting in the identification and classification of construction materials; obtaining samples of constniction materials; assisting in performing physical and chemical tests to determine the quality of materials; verifying quality of materials; performing material compaction and gradation tests; performing asphalt extraction and concrete compressive tests; assisting in collecting data on existing pavement; performing field inspections and contract documentation on public works transportation and solid

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waste improvement projects; inspecting and accepting or rejecting construction materials for quantity or quality; enforcing contractor compliance to plans and specifications; recording project data; preparing 'AB Constructed' drawings; performing basic field inspections of sanita1y landfill and transfer operations for compliance to specified standards; (4) performing manual traffic counts and other traffic engineering investigations; maintaining and placing mechanical traffic counters; evaluating traffic engineering data; checldng for threatened and endangered species and assisting in identifying potential impacts on streams, wetlands, and other sensitive areas; checking field notes, making computations involving the use of algebra and trigonometry to determine earth work quantities, coordinates, simple grades, spirals, curves, property investigations, and government corner locations; searching office, court, and other records for property ownership and deeds relating to current or proposed Public Works projects; preparing reports and searching environmental databases, wetland inventory maps, and other environmental information sources as necessa1y; participating in the preparation, filing, and retrieval of a variety of engineering maps, documents, and records; assisting in the preparation of agenda packets for a variety oflegal proceedings related to roads; and (5) answering routine questions and providing information to the public and private sector concerning engineering surveying and property development activities; providing information regardingthe location of utilities, off-site improvements, and flood zones; maintaining files, surveys, records, computations, and maps; and providing documented information to engineers, realtors, officials, and the public.

46. The minimum qualifications for the position include knowledge of the following subjects: fundamental engineering and surveying principles such as drafting, construction and land surveying, design and strength of materials, landfill construction and operation, environmental protection, control and measurement, and GIS mapping and application; mathematics, trigonometry, algebra, and geometry; office and field engineering principles; engineering and surveying maps and records; methods of equipment used in survey work; tools, equipment, and methods of drafting and mapping, including computer-assisted drafting and GIS, field, and laboratory testing procedures and equipment; and principles of work site safety.

47. The position requires the ability to: follow written and oral instructions; assist in the preparation of written reports and correspondence; perform basic engineering, survey, and mathematical calculations with speed and accuracy; maintain accurate notes; prepare accurate engineering plans, survey maps, and drawings; perform physical labor in varying weather and terrain as required; interpret construction and survey plans and specifications in confomrnnce to established drafting standards; use and care for drafting, surveying, mechanical, and electrical instruments and tools; maintain effective worldng relationships with those contacted in the course of work; and communicate clearly and concisely.

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48. Experience and training required for the position are: completion of the twelfth grade, supplemented by course work in civil engineering, surveying, environmental science, geography, or a related field and one year of para-professional civil engineering, environmental, or waste management engineering, GIS mapping or surveying experience, or an equivalent combination of experience and training.

Engineering Technician 2

49. The Engineering Technician 2 (annual salary $34,694-$48,090) performs para-professional engineering and surveying support work in the investigation, location, design, constniction, maintenance, or operation of engineering or surveying projects, environmental and waste management engineering, and GIS.

50. This is the journey level position vvithin the Engineering Technicians. Employees within this position are distinguished from the Engineering Technician 1 by the performance of the full range of classification duties as assigned, including performing duties of a Crew Chief on less complex assignments. Employees at this level receive occasional instruction or assistance as new or unusual situations arise and are fully aware of the operating procedures and policies of the work unit.

51. The position receives direction from supervisory personnel, and may exercise functional and technical supervision over technical personnel in lower classifications.

52. The Engineering Technician I performs the following tasks: ( 1) performs survey work following specific assignments pertaining to boundary, geodetic, GPS, or government corner surveys; acts as crew member on large surveying projects and as crew chief on less complex survey or engineering projects; researches County records of property surveys, government corner records, road records, and property deeds, and prepares reports and summaries; (2) operates survey instruments which may include level or theodolite and data collector; follows directions to set out a project traverse or complex lines or cross-section work; (3) performs field and office survey activities on public improvement and survey projects; responsible for the care of survey instruments; records accurate field notes; performs smveying computations using calculators or computer programs to determine elevations, curve data for spiraled or circular curves, angles or coordinates for survey projects, and establishing highway alignments; performs surveys adequate for location, design, and construction of project segments on less complex projects; performs construction staking and establishes right-of-way markers; ( 4) provides technical engineering information to contractors, developers, the general public, and county staff regarding the location of utility lines, off-site improvements, and planned engineering projects and improvements; provides assistance to the public

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regarding county policies and procedures; provides technical information to contractors and developers as necessary; ( 5) collects, maintains, and analyzes a variety of engineering and surveying data; enters map features and creates a variety of maps performing geoprocessing using various databases and files which include legal documents such as deeds, recording easements, surveys, plats, and geographic and demographic data sources; prepares cost estimates and right-of-way deeds; researches reports; searches environmental databases, wetland inventory maps, and other environmental information sources, and analyzes data as appropriate; (6) performs traffic volume and capa~ity studies; investigates and develops recommendations on safety complaints and issues; analyzes accident, traffic volume, and related information; provides technical assistance to the public, professional private sector organizations, and other government agencies related to various aspects of property development; investigates public complaints regarding traffic engineering and safety; (7) performs field inspections and contract documentation on public works projects, including solid waste improvement projects and sanitary landfill and transfer operations for compliance with applicable rules and regulations; inspects, accepts, or rejects construction materials for quantity and quality; enforces contractor compliance to plans and specifications; collects and records data; prepares 'As Constructed' drawings, and obtains preliminary data and computes quantities for asphalt overlays; (8) performs field and laboratory testing of materials incorporated in the construction of public works projects; performs field investigations and assists in the identification, classification, and design of construction materials; obtains samples of construction materials from suppliers or project sites; performs physical and chemical tests to determine quality of materials; verifies quality of materials; performs material testing including compaction, aggregate gradation, asphalt extraction, and concrete compressive tests; collects test data on existing pavements; and (9) performs environmental field work for projects, including looking for threatened and endangered species and identifying potential impacts on streams, wetlands, and other sensitive areas; prepares a variety of draft form legal documents and agenda materials relative to road vacations, surrenders, establishments, etc.; checks field notes, calculates land areas, and performs other technical office engineering work; performs drafting work of a technical nature requiring the application of surveying and engineering knowledge to produce maps, structural plans, right-of-way plots, drawings or charts, and mass diagrams utilizing manual and Computer Aided Design (CAD) techniques and equipment.

53. The minimum qualifications of the position include knowledge of the following subjects: terminology, methods, practices, and techniques of drafting, land surveying, construction surveying, and design; mathematics including trigonometry, algebra, and geometry used in engineering and surveying technology; principles of basic engineering land surveying or public works construction relating to area of assignment such as landfill construction and operations, environmental protection, control and measurement, and GIS mapping techniques and applications; practices of technical

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research and report writing relating to area of assignment; procedures of field and laborato1y construction materials testing; tools, equipment, and methods of drafting and mapping; GIS and computer-assisted drafting methods and equipment; methods and equipment used in electronic and conventional surveying; principles of work site safety; and traffic engineering standards and principles.

54. The position requires the ability to: prepare engineering plans, drawings, and surveying maps, using both computer-assisted drafting and conventional means; read and interpret plans and specifications and technical manuals; perform physical labor in varying weather and terrain as required; use field and office engineering instruments; prepare written correspondence; prepare technical reports; maintain accurate notes; prepare drafts, sketches, or tracings of maps and plans; perform engineering and surveying mathematical calculations with speed and accuracy; lead and train technical staff; maintain effective working relationships; communicate clearly and concisely; and write technical reports.

55. Experience and training required for the position are: completion of the twelfth grade supplemented by course work in civil engineering, surveying, environmental science, geography, or a related field, and three years of responsible para-professional civil engineering, smveying, environmental,. or waste management engineering, and GIS mapping/maintenance experience, or an equivalent combination of experience and training.

Environmental Engineering Specialist

5 6. The Environmental Engineering Specialist (annual salary $40 ,22 7-$55, 7 65) coordinates the environmental activities of the Engineering Division, primarily those related to road construction and maintenance, and may coordinate environmental activities elsewhere in County government. The position receives general direction from the Transportation Planning Engineer.

57. The Environmental Engineering Specialist performs the following tasks: ( 1) provides responsible technical support to department staff by assisting in the planning, development, organization, and implementation of policies and procedures relating to the environmental aspects of road construction and maintenance; performs environmental overview/reconnaissance field work for road and bridge construction projects, including looldng for threatened and endangered species, and determining impact on streams, wetlands, and other sensitive areas; prepares environmental assessments; (2) analyzes technical data and interprets federal, state, and local government environmental regulations, rules, and policies to advise department and recommend course of action pertaining to wetlands, threatened and endangered species, storm water discharge, air quality, underground storage tanks, or other environmental

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issues as related to County roads and bridges and other Public Works activities; (3) assists in the development of environmental mitigation measures to offset the effect of road and bridge maintenance and construction; conducts periodic inspection of mitigation efforts in progress; ( 4) prepares applications for removal and fill permits for Division of State Lands and the Corps of Engineers; prepares flood plain permit applications to Lane County Land Management Division; (5) assists in consultant selection and preparation of consultant contracts; directs the work of environmental consultants and reviews and evaluates environmental studies prepared by consultants; ( 6) coordinates interagency environmental review activities, files appropriate application and permit documents ·with federal, state, or local government environmental authorities, and serves as liaison with those agencies; and (7) interacts effectively with the Board of County Commissioners, citizen advisory committees, media, and citizens as a County representative; and prepares presentations and information for the Board, adviso1y committees, media, and community groups.

58. The minimum qualifications for the position include knowledge of pertinent federal, state, and local regulations, rules, and policies relating to environmental issues, including the Clean Air Act, Clean Water Act, Threatened and Endangered Species Act, and Oregon Revised Statutes; principles of transportation planning, road construction, and road maintenance; basic theory and principles of environmental protection, control, and measurement; and information sources and research techniques in the field of environmental protection; report writing methods and techniques; and effective public information and relations techniques.

59. The position requires the ability to: navigate on rough terrain and in inclement weather in order to perform overview/reconnaissance/inspection field work pertaining to wetlands, threatened and endangered species, storm water discharge, or other environmental issues; plan, develop, organize, and implement an environmental program relating to road and bridge construction and maintenance and other Public Works projects; work as a project team member to successfully plan, develop, organize, and implement road and bridge construction projects and ensure that necessary maintenance activities are accomplished within environmental regulations; initiate research studies and reports and develop administrative and management recommendations; plan and carry out work independently; prepare written analysis, recommendations, and complex reports; analyze technical data and recommend an effective course of action; maintain effective working relationships; and communicate clearly and concisely.

60. Experience and training required for the position are: a bachelor's degree from an accredite_d college or university with major course work in environmental engineering, civil engineering, transportation planning, and the physical or natural sciences; three years of responsible experience in environmental analysis or resource management, with some experience in transportation planning, road maintenance, or road construction; or an equivalent combination of experience and training.

Lead Mechanic

61. The Lead Mechanic (annual salary $38,293-$53 ,082) coordinates, oversees, and performs the repair, overhaul, and maintenance of automobiles and light trucks or machinery and construction equipment utilized by the County. It is the working supervisory level position within the Mechanic series, and is distinguished from the Senior Mechanic by its responsibility for assigning, controlling, and reviewing the work of personnel in the Mechanic series, and performing the most complex duties. The position receives direction from the Shop Supervisor, and exercises technical and functional supervision over shop maintenance personnel.

62. The Lead Mechanic performs the following tasks: organizes, plans, and assigns the work of subordinate mechanics; trains and instructs staff; monitors work; participates in the selection and evaluation of mechanics; diagnoses mechanical problems; dismantles and assembles equipment; rebuilds automotive_ or diesel engines; adjusts and overhauls transmissions, differentials, starters, brakes, and steering systems; tests and repairs electrical and ignition systems; arranges for and schedules required equipment and materials necessary to complete repairs; responds to complaints and inquiries regarding maintenance work performed; assures accurate maintenance data are entered onto work orders and other records; obtains quotes for parts, prepares requisitions, and approves field purchase orders; and prepares job cost estimates and submits reports.

63. The pos1t10n requires knowledge of the following subjects: standard methods, tools, and materials used in maintaining, repairing, and overhauling automobiles and light trucks or machinery and constnJCtion equipment; principles of internal combustion; diesel engines and their components; use of testing and diagnostic equipment such as engine and emission analyzers; use of hydraulic testing equipment; standard methods, tools, and materials used in machine work; use of welding equipment and lathes; and safety practices related to mechanical work.

64. The position requires the ability to: evaluate, make decisions, and take appropriate action; follow oral and written instructions; interpret schematics, both electrical and hydraulic; operate vehicles or heavy equipment for diagnostic or testing purposes; improvise and make repairs in the field under adverse conditions; fabricate special parts or pieces of equipment; lift heavy parts of equipment; perform basic mathematical computations for fabrication and work layout; comprehend equipment maintenance manuals and diagrams; maintain accurate and current records; respond courteously and tactfully to equipment user inquiries and complaints; inspect work in progress and upon completion; identify areas needing improvement; communicate clearly and concisely; plan, assign, and review the work of others; and maintain effective working relationships.

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65. Experience and training required for the position are: completion of the twelfth grade; completion of a two-year program/apprenticeship in automotive or heavy equipment mechanics; four years of responsible experience as a general mechanic, including at least one year of experience on automobiles and light tn1cks and at least one year on heavy equipment; or an equivalent combination of experience and training. The position also requires possession of a valid Oregon CDL and the ability to obtain necessary CDL endorsements.

Nuisance Abatement Specialist

66. The Nuisance Abatement Specialist (annual salary $37,357-$51,813) investigates reports of illegal dumping and nuisance violations on Public Works controlled properties; identifies responsible parties and initiates corrective action as necessary; and cleans dump sites as allowed by Lane Code and state laws. The position receives direction from Division Manager or designee.

67. The Nuisance Abatement Specialist performs the following tasks: patrols Waste Management Division transfer sites and provides security services for closed transfer sites; investigates illegal dumping and nuisance complaints and violations in Lane County; performs field enforcement by issuing citations for County Code infractions; coordinates with appropriate County departments and outside agencies to clean up illegal dumping and nuisance sites when necessary; performs illegal dump site cleanup; consults with legal counsel regarding evaluation of complaints; establishes documentation and sufficient background information to proceed ;vith legal action if necessary; answers inquiries regarding ordinances, policies, rules, or regulations under applicable sections of the Lane Code and state law, and provides community education regarding illegal dumping; coordinates with the Division Program Managers and County staff, making recommendations on proposed ordinances, program evaluations, and compliance methods; appears in court and represents the County before the County Hearings Officer or as a witness; maintains accurate records of type and number of actions being processed; provides written reports at regular intervals; and participates in community and professional groups, task forces, and committees as necessary.

68. The minimum qualifications for the position include knowledge of the following subjects: principles of code enforcement; principles of investigation; principles of research and data collection; and pertinent local, state, and federal laws, ordinances, and rules in connection with land use, nuisance, and building sections, as well as Public Works right-of-way and other road maintenance activities.

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69. The position requires the ability to: conduct investigations including collecting data, analyzing facts, and drawing conclusions; estimate project costs and project management; deal effectively ·with the public in potentially stressful situations; maintain effective working relationships; and communicate clearly and concisely.

70. Experience and training required for the position are: completion of the twelfth grade; specialized training in environmental sciences, law enforcement, or related field preferred; three years of increasingly responsible experience in planning, building or community development, law enforcement, or related field; or an equivalent combination of experience and training. The position also requires the ability to legally issue citations and complete DPSST training.

Park Planner

71. The Park Planner (annual salary $41,266-$57,158) plans, organizes, and coordinates park and recreation facility planning and design operations within the Parks Division. The position receives general direction from the Parks Manager, exercises direct supervision over seasonal staff, interns, and volunteers, and exercises technical and functional supervision over technical and Parks personnel.

72. The Park Planner performs the following tasks: ( 1) plans, coordinates, and participates in comprehensive park and facility planning, and the preparation and maintenance of the County Parks Master Plan; develops and implements public input strategies that encourage public involvement in park planning efforts; prepares maps, plans, and specifications for park and recreation facility development and renovation; coordinates and performs on-site surveys and layouts of facilities, trails, and other related designs; (2) coordinates and develops bid specifications; recommends contract awards; administers contracts; prepares and administers grants; inspects contracted construction to insure contract compliance; supervises volunteer and in-house construction of park and recreation facilities in coordination with the Parks Superintendent; monitors and controls capital project expenses; recommends to the Parks Manager changes in project scope or design to keep projects within budget or design standards; and (3) participates in budget preparation and administration; prepares cost estimates for budget recommendations; answers questions and provides information to the public; investigates complaints and recommends corrective action as necessary to resolve complaints; supervises and participates in a wide variety of duties related to an area of responsibility including project-specific work in parks; and provides professional consultation and services to other County Divisions and Departments as requested.

73. The minimum qualifications for the position include knowledge of principles oflandscape architecture as related to park planning, design, and construction;

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principles of irrigation system design, erosion control, and trail layout; methods of park maintenance and construction; and pertinent federal, state, and local laws, codes, and regulations.

The position requires the ability to: plan, design, and coordinate constn1ction and renovation of park and recreation facilities; prepare, develop, and conduct public presentations; prepare and implement public input strategies; take a lead role in the comprehensive master plan process associated with regional park systems; prepare and administer project estimates and budgets; supervise and inspect the work of contractors, volunteers, and staff and obtain conformity with established standards; work effectively on complex projects with personnel from other departments and agencies; and communicate clearly and concisely.

7 4. Experience and training required for the position are: the equivalent to a bachelor's degree in landscape architecture or a related field from an accredited college or university; an Oregon registration for Landscape Architect; three years of increasingly responsible experience in landscape architecture, park planning, and landscape construction; or an equivalent combination of experience and training.

Parks Superintendent

7 5. The record does not contain evidence regarding the Parks Superintendent position except for annual salary ($42,266-$58,594).

Parks Supervisor

76. The Parks Supervisor (annual salary $41,266-$57,158) supervises and organizes personnel performing park operations, maintenance, and construction work; coordinates activities with other divisions; and performs a variety of technical tasks relative to the Park Supervisor's area of responsibility. This position is distinguished from Parks Superintendent by the performance of the more routine tasks and duties and less independence. The position receives direction from the Parks Superintendent or Parks Manager, and exercises direct supervision over other personnel.

77. The Park Supervisor performs the following tasks: (1) supervises, assigns, and reviews the work of staff located in all parks operation locations; recommends and assists in the implementation of goals and objectives; establishes schedules and methods for parks maintenance; implements policies and procedures; assists in the development of work plans; monitors and evaluates work methods, procedures, and program results; evaluates operations and activities of assigned responsibilities; recommends improvements and modifications; prepares various reports on operations and activities; (2) participates in budget preparation and administration; prepares cost estimates for

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budget recommendations; submits justifications for equipment, tools, and personnel; monitors and controls expenditures; participates in the selection of staff; provides or assists in the coordination of staff training; works ·with employees to correct deficiencies; implements discipline procedures; answers questions and provides information to the public; investigates complaints and recommends corrective action as necessary to resolve complaints; (3) patrols and inspects County parks and related properties and facilities in an assigned area checking for repair needs, compliance with Park Rules and County Code, and complaints; coordinates repairs and maintenance; enforces County Code and Park Rules in County parks, and issues citations for infractions; ensures Rule and Code compliance and the safety of park visitors; and ( 4) coordinates the requisition of materials, supplies, and equipment; oversees the maintenance of equipment; keeps operational records and prepares periodic reports regarding the activities and progress of work programs; monitors and assists concessionaires, contractors, and caretakers; and monitors and maintains operating levels of roads, parking lots, sewage plants, irrigation systems, structures, and related park systems and facilities.

78. The minimum qualifications for the position include knowledge of the following subjects: principles of parks development and maintenance; equipment, tools, and materials used in parks maintenance; principles of supervision, training, and performance evaluation; principles of public safety, Code compliance, and Rule enforcement; principles of budget monitoring; principles of maintenance management systems; principles of safety management; and relevant local, state, and federal laws, ordinances, and n1les.

79. The position requires the ability to: organize, implement, and direct parks construction and maintenance activities; interpret and explain pertinent County and Department policies and procedures; recommend and monitor a budget; develop and recommend policies and procedures related to operations; maintain effective working relationships with those contacted in the course of work; communicate clearly and concisely; supervise, train, and evaluate staff; and exercise discretion and independent judgment.

80. Experience and training required for the position are: completion of the twelfth grade; additional course work in parks and grounds maintenance, landscape constniction, building construction and maintenance, or a related field; three years of increasingly responsible experience in parks maintenance, construction, and relevant public safety, including one year of lead responsibility; or an equivalent combination of experience and training. The person must obtain legal citation authority and possess a valid Oregon Class A CDL, medical card, and any required endorsements. Some positions may require an Oregon Spray license and benefit from a Limited Maintenance Electrician's license.

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Public Works Administrative Assistant

81. The Public Works Administrative Assistant (annual salary $33,842-$46,904) assists ·with the basic administrative and technical phases of a personnel or administrative function within the Department of Public Works; assists in the day-to-day operation of central administrative and business management services tasks in Public Works; and performs general program and office support duties. The position receives general supervision from a departmental manager or supervisor, and may exercise technical and functional supervision over clerical and technical personnel.

82. The Public 'Narks Administrative Assistant performs the following tasks: (I) gathers and assembles data involving limited variables; performs structured matheinatical and statistical calculations; performs comparative analysis of technical data; assists in conducting research studies or performs independent research; participates in the technical phases of special studies, surveys, investigations, and research projects; prepares graphic charts; (2) answers correspondence and inquiries from the public and employees; confers with Department officials and assists in resolving personneVadministrative problems; assists in providing administrative control over staff assigned to the administrative services operation; develops and recommends departmental clerical and fiscal procedures and policies; analyzes office methods, procedures, and forms; develops recommendations for improvement of procedures and coordination of departmental functions; conducts studies and prepares reports on departmental administrative operations; and (3) develops and maintains departmental operating or procedures manuals; participates in the preparation and administration of contracts and the preparation of grant applications; conducts special projects related to departmental administrative services; and performs general, office, program, staff, and financial support activities.

83. The minimum qualifications for the position include knowledge of the following subjects: statistical research techniques and procedures; office procedures, methods, and computer equipment; data collection techniques; correct English usage, spelling, grammar, and punctuation; report writing methods and techniques; and basic financial and statistical record-keeping practices.

84. The position requires the ability to: understand, interpret, and apply Department and program rules, procedures, and policies with good judgment, while carrying out a variety of technical and administrative support duties; coordinate a variety of administrative and staff support functions; prepare and maintain a variety of records; operate a variety of office equipment, including calculators, copiers, typewriters, and computer terminals; assemble data and prepare summaries, analysis, recommendations,

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and reports; provide a variety of program and policy information to the public and staff; maintain effective working relationships with those contacted in the course of work; and communicate clearly and concisely.

85. Experience and training required for the position are: completion of the twelfth grade supplemented by course work in business, personnel, public administration, or a related field; three years of responsible experience providing complex secretarial or administrative support to management; or an equivalent combination of experience and training.

Public Works Analyst

86. The Public Works Analyst (annual salary $35,568-$49,296) performs difficult and complex administrative analytical work involved in the study of organizations and systems directed toward improving the efficient attainment of objectives and purposes within the Department of Public Works; collects, organizes, analyzes, and interprets data; and prepares detailed research, studies, reports, and recommendations.

87. This is the entry/journey level in the Public Works Analyst series. Employees in this position initially perform the more routine duties and work under close supe1vision. As experience is gained, employees are expected to perform the full range of duties ·with increasing independence. The position receives direction from a supervisor or manager, and may receive direct supervision from a Senior Public Works Analyst.

88. The Public Works Analyst performs the following tasks: (1) conducts research and studies as assigned; performs a variety of duties related to special assignments and projects; investigates, studies, analyzes, and prepares reports and recommendations on such areas as operating and organization procedures, pending and approved state and federal legislation, and cost comparison; collects, organizes, analyzes, monitors, and interprets data relating to operations, including such areas as policies, functions, organizational structures, forms and procedures, work output, space and physical layouts, and types and effectiveness of equipment; (2) attends meetings in the absence of the administrative official; attends planning meetings; (3) prepares organization and work flow charts; conducts surveys of practices in other jurisdictions; prepares proposals for new and adjusted services to include finance, staffing, and organization requirements; (4) reviews budget requests in conference with department heads; analyzes and investigates proposals for new programs, services, equipment, and personnel; prepares reports recommending adjustments in proposals; may plan, promote, and organize special programs and events; prepares procedural manuals; prepares financial studies, revenue estimates, and forecasts; and (5) designs and controls the

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utilization of forms, which may include promotional and informational materials; prepares reports and presents recommendations in connection with studies and projects; and enlists, trains, and monitors volunteers, extra help, and seasonal staff in routine tasks.

89. The minimum qualifications of the position include knowledge of the following subjects: principles of public administration and management, including principles of administrative and management analysis; public financing, budgeting, and accounting; functions, operations, and objectives of County government; basic principles of public personnel administration; general principles of statistics and accounting; computers and computer applications; report writing methods and techniques; and effective public information and community relations techniques. The position requires the ability to initiate research studies and reports including the collection, organization, analysis, and development of administrative and management recommendations; prepare written analysis, recommendations, proposals, and complex reports; evaluate and recommend improvements in operations, systems, procedures, policies, and methods; analyze situations and adopt an effective course of action; maintain effective working relationships with those contacted in the course of work; and communicate clearly and concisely.

· 90. Experience and training required for the position are: a bachelor's degree from an accredited college or university with major course work in business administration, public administration, organizational analysis, accounting, finance, or a related field; one year of responsible administrative staff support and analytical experience; or an equivalent combination of experience and training.

Senior Public Works Analyst

91. The Senior Public Works Analyst (annual salary $38,293-$53,082) performs the most difficult and complex administrative analytical work involved in the study of organization and systems directed toward improving the efficient attainment of objectives and purposes within the Department of Public Works; collects, organizes, analyzes, and interprets data; prepares detailed research, studies, reports, and recommendations; plan, assigns, and reviews the work of other professional and support staff.

92. This is the advanced journey level position of the Public Works Analyst series. This position differs from the Public Works Analyst classification by the level of responsibility assumed and the complexity of duties. Employees perform the most difficult and responsible types of duties within this series, which include advanced administrative and management research, analysis, and system design and planning, and assigning and reviewing the work of other professional and support staff. Employees at

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this level must be fully trained in all procedures related to their area of responsibility. The position receives direction from management personnel, and may exercise direct supervision over clerical, technical, and administrative personnel.

93. The Senior Public Works Analyst performs the following tasks: (1) performs advanced administrative and management research, analysis, and system design related to area of responsibility; plans, assigns, and reviews the work of clerical, administrative, and professional staff; performs a variety of duties related to special assignments and projects; investigates, studies, analyzes, and prepares reports and recommendations on such subjects as operating and organization procedures, pending and approved state and federal legislation, and cost comparison; designs new or upgrades existing accounting systems; modifies systems to accommodate Department or County policies; collects, organizes, analyzes, monitors, and interprets data relating to operations, including such subjects as policies, functions, organizational structures, fonns and procedures, work output, space and physical layouts, and types and effectiveness of equipment; (2) attends meetings in the absence of the administrative official; attends organizational planning meetings; provides ideas and suggestions for effective and efficient systems and procedures; prepares organization and work flow charts; evaluates program service delivery systems; conducts smveys of practices in other jurisdictions; prepares proposals for new and adjusted services to include finance, staffing, and organization requirements; reviews budget requests in conference with department heads; analyzes and investigates proposals for new programs, services, equipment, and personnel; prepares reports recommending adjustments in proposals; and (3) plans, promotes, and organizes special programs and events; prepares procedural manuals; prepares financial studies, revenue estimates, and forecasts; develops economic impact reports regarding credit and payment policies; designs and controls the utilization of forms, which may include promotional and informational materials; and prepares reports and presents recommendations in connection with studies and projects.

94. The minimum qualifications of the position include knowledge of the following subjects: principles of public administration and management, including principles, practices, and methods of administrative and management analysis; public financing, budgeting, and accounting; functions, operations, and objectives of County government; basic principles of public personnel administration; general principles of statistics and accounting; computers and computer applications; report writing methods and techniques; effective public information and community relations techniques; principles of work planning and organization; and principles of supervision.

95. The position requires the ability to: perform advanced administrative and management research, analysis, and system design and implementation work; plan, assign, and review the work of staff; prepare and analyze fiscal and accounting systems and procedures; initiate research studies and reports including the collection,

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organization, analysis, and development of administrative and management recommendations; prepare written analysis, recommendations, proposals, and complex reports; evaluate and recommend improvements in operations, systems, procedures, policies, and methods; analyze situations and adopt an effective course of action; maintain effective working relationships with those contacted in the course of work; and communicate clearly and concisely.

96. Experience and training required for the position are: a bachelor's degree from an accredited college or university with major course work in business administration, public administration, organizational analysis, accounting, finance, or a related field; three years of responsible administrative staff support and analytical experience; or an equivalent combination of experience and training.

Real Property Officer l and 2

97. The Real Property Officer 1 (annual salary $34,694-$48,090) performs technical and professional duties related to the appraisal, acquisition, and management of real property for rights-of-way and other County properties. This is the entry level position in the Real Property Officer series. Employees at this level are not expected to perform with the same independence of direction and judgment on matters related to established procedures and guidelines as are positions at the 2 level. New employees may have only limited work experience, and work under immediate supervision.

98. The Real Property Officer 2 position (annual salary $40,227-$55,765) is the full journey level position within the Real Property Officer series, and performs the full range of duties. Employees at this level receive only occasional instniction or assistance as new or unusual situations arise, and they are fully aware of the operating procedures and policies within the work unit. These positions are flexibly staffed and may be filled by advancement from the 1 level.

99. Management personnel supervise Real Property Officers 1 and 2.

100. The Real Property Officer 1 must have knowledge of the following subjects: basic theories, principles, practices, and techniques of property appraisal; basic practices and procedures of real estate sales; form and content of legal documents related to real property; local, state, and federal regulations pertaining to property appraisal, disposition, and right-of-way acquisition; and real estate law.

101. In addition to knowledge of the above subjects, the Real Property Officer 2 must have knowledge of the following subjects: advanced theories, principles, practices, and techniques of property appraisal; advanced practices and procedures of real estate sales; and federal and state laws regarding relocation of businesses and individuals.

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102. The Real Property Officer 1 performs the technical and professional duties of average difficulty in the acquisition of real property; reads maps, legal descriptions, profiles, and other technical data related to property or construction; performs mathematical and statistical calculations; operates office equipment, including calculators and computers; maintains accurate and complete records; collects, interprets, and evaluates data; maintains effective working relationships with those contacted in the course of work; and communicates clearly and concisely.

103. In addition to performing the above tasks, the Real Property Officer 2 performs technical and professional duties of above-average difficulty in the acquisition of real property; coordinates the activities of a program or a work unit; performs complex or difficult appraisals using various approaches; analyzes economic or market conditions affecting property value; and delivers presentations to city, county, state government, and the public.

104. The Real Property Officer 1 and 2 positions require training or experience equivalent to a bachelor's degree from an accredited college or university with major course work in business administration or a related field; one (or two, for the 2 position) years of responsible property appraisal or real estate experience; or an equivalent combination of experience and training. The position also requires the ability to obtain an Oregon Notary Public Commission. The Real Property Officer 2 position also requires a Senior Member (SR/WA) designation from the International Right-of-Way Association and employees filling this position are also encouraged to obtain a license to appraise Oregon real estate.

Senior Real Property Officer

105. The Senior Real Property Officer (annual salary $45,510-$63,066) performs highly responsible technical and professional duties involving the appraisal, acquisition, and management of real property for rights-of-way and other County properties; coordinates real property acquisition activities with other Engineering Division sections; and provides staff support to the Real Property Superintendent and the County Engineer.

106. This is the advanced journey level position in the Real Property Officer series. The position is distinguished from Real Property Officer 2 by the level of responsibility assumed and the complexity of duties. Employees perform the most difficult and responsible types of duties within this series, which include managing the negotiation process for acquisition of right-of-way for Public Works and other County projects and coordinating acquisition activities with other sections of the Engineering

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Division of Public Works. Employees at this level must be fully knowledgeable in all procedures related to their area of responsibility and in Department and County policies and procedures. The position receives general direction from the Real Property Superintendent, and exercises supervision over professional and clerical staff.

107. The Senior Real Property Officer performs the following tasks: (1) recommends and assists in the implementation of goals and objectives; establishes schedules and methods for real property acquisition and appraisal; implements policies and procedures; prepares the most complex appraisals of real property, including both land and improvements, using a variety of appraisal techniques; (2) conducts difficult negotiations with property owners and their representatives for the acquisition of real property; acts as the County's representative in eminent domain matters; acts as a team leader in the development of the real property acquisition work plan; assigns appraisal and acquisition work to other real property officers; reviews appraisals prepared by County staff and outside appraisers to evaluate compliance with federal and state standards; manages the negotiation process, including recommending negotiated settlements for acquisition of rights-of-way, recommending just compensation to be paid to owners, and referring acquisitions to legal counsel for filing of eminent domain actions; assists in the preparation of right-of-way cost estimates for capital improvement projects; answers questions related to right-of-way acquisition and provides information to the public, property owners, and other interested persons; plans and schedules right-of-way acquisition activities to correspond ·with project construction time lines developed through the capital improvement program; assists and advises legal counsel in matters pertaining to trial preparation in eminent domain proceedings and coordinates vvith legal counsel or expert witnesses in planning of case presentation; (3) provides and directs other personnel in the provision of relocation assistance for displaced persons under the Uniform Relocation Assistance and Real Property Acquisition Policies Act; prepares contracts for fee appraiser consultant services; assists in preparation of annual budget relating to acquisition, appraisal, and property management activities; testifies in courts of law in condemnation proceedings; and ( 4) participates in training of other real property officers; and participates in the hiring and evaluation of other real property officers and other staff.

108. The minimum qualifications for the position include knowledge of the follovving subjects: principles of real property appraisal; principles of real estate and right-of-way acquisition; principles of relocation assistance for public projects; local, state, and federal regulations pertaining to property appraisal, disposition, and right-of-way acquisition; office procedures, methods, and computer equipment; real estate law; federal and state laws relating to relocation of businesses and individuals; and principles of employee supervision, training, and performance management.

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109. The position requires the ability to: coordinate the activities of a work unit; perform complex or difficult appraisals using various approaches; communicate clearly and concisely; maintain effective working relationships; read and interpret engineering plans and specifications; analyze situations, develop alternative solutions, present sound recommendations; deliver presentations to city, county, and state government and the public; and plan, assign, and review the work of others.

110. Experience and training required for the position are: a bachelor's degree from an accredited college or university ·with major course work in business administration or a related field; three years of responsible property appraisal or real estate experience, including one year of experience as a team leader or project manager for property acquisition or appraisal; or an equivalent combination of experience and training. The position also requires a Notary Public Commission; SR/WA designation from the International Right-of-Way Association; and a license as a Certified General Real Property Appraiser, Certified Residential Appraiser, or Licensed Appraiser.

Road Maintenance Supervisor

111. The Road Maintenance Supervisor (annual salary $41,226-$57,15 8) plans, organizes, and supervises road maintenance and repair operations. The position receives direction from the Road Maintenance Manager and exercises direct supervision over maintenance and superviso1y personnel.

112. The Road Maintenance Supervisor performs the following tasks: (1) recommends and assists in the implementation of goals and objectives; establishes schedules and methods for road maintenance and repair; implements policies and procedures; plans, prioritizes, assigns, supervises, and reviews the work of staff involved in road maintenance and repair; evaluates operations and activities of assigned responsibilities; recommends improvements and modifications; prepares various reports on operations and activities; (2) participates in budget preparation and administration; prepares cost estimates for budget recommendations; submits justifications for equipment, tools, and personnel; monitors and controls expenditures; participates in the selection of staff; and provides or coordinates staff training; (3) works with employees to correct deficiencies; implements discipline procedures; answers questions and provides information to the public; investigates complaints and recommends corrective action as necessary to resolve complaints; and ( 4) patrols and inspects County roads checking for repair and gravel needs, culverts, drainage, slides, fallen trees, vegetation problems, washouts, and complaints, and makes arrangements for necessary repairs and maintenance ; supervises the maintenance of County roads in assigned area; requisitions supplies and equipment needed on road constniction and maintenance projects; supervises the oiling of roads County-wide; supervises the roadside vegetation program County-wide; investigates emergencies such as ice and bleeding oil; and prepares a list of roads to be either oiled or resurfaced.

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113. The minimum qualifications for the position include knowledge of the following subjects: principles of road constniction repair and maintenance; principles of vegetation management; equipment, tools, and materials used in road constrnction, maintenance, and repair; principles of supervision, training, and performance evaluation; principles of budget monitoring; principles of safety management; and pertinent local, state, and federal laws, ordinances, and rules.

114. The position requires the ability to: organize, implement, and direct road construction, maintenance, and repair operations; interpret and explain pertinent County and Department policies and procedures; recommend and monitor a budget; develop and recommend policies and procedures related to operations; maintain effective working relationships with those contacted in the course of work; communicate clearly and concisely; and supervise, train, and evaluate staff.

115. Experience and training required for the position are: completion of the twelfth grade and four years of increasingly responsible experience in road coristruction and repair, including one year of lead responsibility, or an equivalent combination of experience and training. The employee must also possess a valid Oregon Class A Commercial Driver's License (CDL) and medical card and additional required endorsements. Some positions may require an Oregon Spray license.

Safety Coordinator

116. The Safety Coordinator (annual salary $39 ,250-$54,413) manages, directs, and coordinates the activities of the Public vVorks Safety Program; investigates accidents; maintains safety standards; conducts safety training and maintains records; coordinates safety activities with other divisions and departments; and provides highly complex staff assistance to the Public Works Director. The position receives general direction from a Senior Administrative Analyst.

117. The Safety Coordinator performs the following tasks: ( 1) recommends goals and objectives; assists in the development and implementation of policies and procedures; manages, directs, and organizes safety program activities including safety inspections, safety meetings, and training, maintains safety standards and records; and directs, oversees, and participates in the development of the Safety Program work plan; (2) investigates or coordinates investigation of all accidents and submits findings and recommendations; recommends safety measures to prevent recurrence of accidents; maintains records for all job-related injuries and accidents; prepares statistical and narrative reports; (3) inspects job sites, equipment, and structures for existing or potential hazards and recommends corrective action; develops or revises departmental

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safety policies and procedures; chairs or staffs Safety Committee and conducts informal safety meetings; advises and assists managers and supervisors in safety matters; recommends procurement, use, and installation of safety gear or hazard control equipment; and ( 4) assists in the development and implementation of a return-to-work program for injured workers; counsels injured workers regarding benefits and available work; plans or coordinates other job-related training courses for departmental staff; develops safety education material; and plans or conducts training in safety, loss control, and first aid.

118. Minimum qualifications for the position include knowledge of the following subjects: safety principles, practices, and techniques; federal, state, and local rules, regulations, and codes related to safety; principles of design and construction of mechanical equipment and varied structures; dangers inherent in various occupations; first aid; Workers' Compensation insurance; procedures of investigation; and principles of management and training.

The position requires the ability to: implement a comprehensive safety program; design and evaluate safety programs in conformance with state and federal law; recognize hazardous or unsafe conditions, work methods, or equipment, and implement or recommend corrective action; maintain and analyze data and prepare reports; develop and conduct training sessions; establish and maintain effective working relationships; and communicate clearly and concisely, both orally and in writing.

119. Experience and training required for the position are: a bachelor's degree from an accredited college or university with major course work in personnel, business, or public administration or a related field; four years of increasingly responsible experience in safety administration or risk management; or an equivalent combination of experience and training.

Shop Supervisor

120. The Shop Supervisor (annual salary $41,266-$57,158) plans, organizes, and supervises mechanical operations within the Motor Pool Shop, and performs a variety of technical tasks. The position receives direction from the Fleet Services Supervisor, and exercises supe1vision over maintenance, technical, and support personnel.

121. The Shop Supervisor performs the following tasks: (1) recommends and assists in the implementation of goals and objectives; establishes schedules and methods for mechanical work; implements policies and procedures; plans, prioritizes, assigns, supervises, and reviews the work of staff involved in motor pool repair and maintenance; evaluates operations and activities of assigned responsibilities; recommends improvements and modifications; prepares various reports on operations and activities;

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participates in budget preparation and administration; prepares cost estimates for budget recommendations; submits justification for equipment, tools, and personnel; monitors and controls expenditures; and (2) participates in the selection of staff; provides or coordinates staff training; works with employees to correct deficiencies; implements discipline procedures; answers questions and provides information to the public; investigates complaints and recommends corrective action as necessa1y to resolve complaints; prepares periodic reports on the condition of the motor pool equipment; makes recommendations regarding its distribution; and maintains the equipment maintenance file.

122. Minimum qualifications for the position include knowledge of the following subjects: principles of motor pool operations and mechanical trades; equipment, tools, and materials used in skilled mechanical trades; principles of supervision, training, and performance evaluation; principles of budget monitoring; principles of safety management; pertinent local, state, and federal laws, ordinances, and niles.

123. The position requires the ability to: organize, implement, and direct motor pool maintenance and repair operations; interpret and explain pertinent County and Department policies and procedures; recommend and monitor a budget; develop and recommend policies and procedures related to operations; maintain effective working relationships with those contacted in the course of work; communicate clearly and concisely; and supervise, train, and evaluate staff.

124. Experience and training required for the position are: completion of the twelfth grade, supplemented by training in mechanics or a related field; five years of automotive and heavy construction equipment experience including two years of lead responsibility; or an equivalent combination of experience and training. The position also requires possession of a Class A CDL, medical card, and appropriate endorsements.

Sign Shop Supervisor

125. The Sign Shop Supervisor (annual salary $41,226-$57,158) plans, organizes, and supervises sign maintenance and construction operations. The position receives direction from the Traffic Engineer, and exercises direct supervision over maintenance personnel.

126. The Sign Shop Supervisor performs the following tasks: ( 1) supervises the construction and erection of a variety of signs in accordance with the State Manual of Uniform Traffic Control Devices; plans, prioritizes, assigns, supervises, and reviews the work of staff involved in sign maintenance and construction; evaluates operations and activities of assigned responsibilities; recommends improvements and modifications; prepares various reports on operations and activities; estimates materials needed and orders necessary amounts; supervises storing and inventory control over stocks; prepares

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specifications for equipment as needed; and (2) conducts road surveys and house and pedestrian counts on County roads and streets for sign requirements; plans and implements a road striping program annually; confers ·with other sections and outside agencies regarding activities of the sign shop; maintains records of completed work and material used; maintains records related to personnel; recommends the selection of staff; provides or coordinates staff training; works with employees to correct deficiencies; implements discipline procedures; answers questions and provides information to the public; investigates complaints and recommends corrective action as necessary to resolve complaints; and participates in meetings regarding staff and operations.

127. Minimum qualifications for the position include knowledge of the following subjects: principles of sign maintenance, construction application and location; equipment, tools, and materials used in sign maintenance and constn1ction; the Manual on Uniform Traffic Control; principles of preparing wood, glass, metal, and other surfaces for lettering; principles of striping; principles of training and supervision; and principles of safety precaution.

128. The position requires the ability to: organize, implement, and monitor a sign shop; perform the most complex sign construction work; interpret and explain specifications and layouts; maintain accurate records; maintain effective working relationships with those contacted in the course of work; communicate clearly and concisely; and supervise, train, and evaluate staff.

129. Experience and training required for the position are: completion of the twelfth grade and three years of increasingly responsible experience in sign construction or sign painting, including one year of lead responsibility providing quality control and correct application of code, or an equivalent combination of experience and training. The employee must also possess a Class A CDL, medical card, and appropriate endorsements.

Solid Waste Supervisor

130. Evidence regarding the position of the Solid Waste Supervisor is not contained in the record, except for annual salary ($41,226-$57,158).

Associate Surveyor

131. The record does not contain evidence regarding the Associate Surveyor position except for annual salary ($42,266-$58,594).

Senior Surveyor

132. The Senior Surveyor (annual salary $47 ,819-$66,331) plans, organizes, and supervises surveying activities of the County, including Public Land Survey System.

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(PLSS) in the restoration and referencing of corner monuments; performs advanced level boundary, cadastral, construction, and geodetic surveying work; performs research, calculations, evaluation, and prepares documentation necessary to the PLSS corner restoration process; plans, organizes, and supervises surveys for legalization of County roads; and performs related duties as assigned. This is the advanced journey level in the professional surveying series, and requires registration as a Professional Land Surveyor. Positions at this level are distinguished from the Associate Surveyor by the high level of surveying program management responsibility assumed, and high complexity of duties and independent decision-making. Employees perform the most difficult and responsible types of duties in surveying which include leading, directing, and facilitating team solutions to project assignments. Employees at this level must be fully knowledgeable in all procedures related to area of responsibility and in Department and County policies and procedures. Employees at this level may exercise the County Surveyor's legal responsibilities in the County Surveyor's absence. The position receives direction from the County Smveyor or Field Engineering Superintendent, and may exercise direct supervision over technical personnel.

133. The Senior Surveyor performs the following tasks: recommends and assists in the implementation of goals and objectives; establishes schedules and methods for completion of smveys; implements policies and procedures; evaluates operations and activities of responsibilities; recommends improvements and modifications; prepares various reports on operations and activities; assists the County Surveyor or Field Engineering Superintendent in planning survey work schedules and determining project assignments; resolves work problems and interprets administrative policies to subordinates, other departments, consultants, contractors, developers, and the public; oversees the re-marking of PLSS corners as mandated by state law; assists in the interpretation of state laws for survey projects; reviews records and surveys for accuracy; reviews projects for compliance with state laws and local regulations; oversees re-marking of County road rights-of-way and supervises preparation of related survey plats for filing; oversees preliminary, location, and construction surveying for County road projects; advises other departments and the public on technical aspects of land surveying; supervises surveys performed for other County departments; participates in budget preparation and administration; prepares cost estimates for budget recommendations; submits justifications for requests; monitors and controls expenditures; works with private and government entities as a liaison for funding, technical surveying matters, and other program activities; completes required reports; answers questions and provides information to the public; investigates complaints and recommends corrective action as necessary to resolve complaints; participates in the selection of staff and works with employees to correct deficiencies; and plans, establishes overall priorities, and assigns, supervises, and reviews the work of staff involved in surveying and GPS data collection.

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134. The minimum qualifications for the position include knowledge of the following subjects: principles, practices, and procedures of boundary, cadastral, constn1ction, and geodetic surveying; pertinent local, state, and federal rules, regulations, and laws pertaining to land survey methods and standards; drafting and computer-aided drafting methods; methods and techniques of land surveying; recent developments, current literature, and sources of information regarding land surveying; office procedures, methods, and computer equipment; principles and procedures of financial record keeping and reporting; and principles of training, supervision, and performance evaluation.

135. The position requires the ability to: use manual and electronic survey equipment and GPS data collection equipment; supervise and implement surveying programs; supervise the activities of large, varied, and complex surveying projects, including supervising staff and consultants; understand and interpret engineering constnICtion plans, specifications, and other contract documents; perform technical research and solve surveying problems; prepare contracts, conduct studies, prepare reports, and make recommendations; interpret and apply pertinent laws, rules, and regulations; perform mathematical computations through trigonometry; supervise, train, and evaluate survey personnel; assist in preparing and administering a budget, and maintain accurate records; communicate effectively both orally and in writing; and maintain cooperative worldng relationships.

136. Experience and training required for the position are: a bachelor's degree from an accredited college or university 1,vith major course work in civil engineering or surveying; four years of increasingly responsible experience in surveying, including one year oflead responsibility; or an equivalent combination of experience and training. The position also requires registration as a Professional Land Surveyor by the State of Oregon.

Vegetation Management Coordinator

13 7. The Vegetation Management Coordinator (annual salary $45 ,510-$63,066) plans, coordinates, and monitors the activities of the vegetation management program, including project planning, development, and administration; coordinates vegetation management activities vvith other divisions, departments, and local, state, and federal agencies and private partnerships; and provides highly complex staff assistance to the Senior Engineering Associate. The position receives general direction from the Road Maintenance Manager and Senior Engineering Associate, and may also exercise direct supervision over personnel.

138. The Vegetation Management Coordinator performs the following tasks: recommends goals and objectives in program areas; assists in the development and

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implementation of policies and procedures; plans, organizes, and monitors vegetation management program activities including project planning, development, and administration; oversees and participates in the development of the vegetation management work plan and record-keeping system including vegetation inventory; standards, projects, and programs; monitors work flow; reviews and evaluates work products, methods, and procedures; prepares the vegetation management budget; assists in budget implementation; participates in the forecast of additional funds needed for staffing, equipment, materials, and supplies; researches and provides lists of available vegetation management training; develops a graphical geographic information system to improve vegetation monitoring work with GIS staff; provides vegetation management consultation, education, and training; develops and monitors a pesticide spill response plan and hazard communication rules; acts in a liaison capacity for vegetation management activities with other governmental or private agencies as needed; provides information to the public, media, and other groups or agencies regarding vegetation control programs; responds to inquiries or complaints; and prepares and presents written and oral reports to the Board of County Commissioners, advisory committees, and citizen groups.

139. The minimum qualifications for the position include knowledge of the following subjects: principles of integrated vegetation management; current methods of mechanical, manual, botanical, biological, and chemical roadside vegetation control; principles of budget preparation and implementation; and pertinent local, state, and federal rules, laws, and regulations.

140. The position requires the ability to: coordinate, plan, and implement a comprehensive vegetation management program; research, recommend, and assess alternative treatments and improved equipment to increase overall program; become quickly knowledgeable in the principles of road maintenance and traffic safety; prepare a program budget; analyze problems, identify solutions, project consequences of proposed actions, and implement recommendations in support of goals; direct experiments with new materials and techniques and evaluate their effects under roadside conditions; interpret and applype1tinent policies, procedures, rules, and regulations; gain cooperation through discussion and persuasion; maintain effective working relationships with those contacted in the course of work; and communicate clearly and concisely.

141. Experience and training required for the position are: a bachelor's degree from an accredited college or university with major course work in botanical sciences, horticulture, biological sciences, ecology, or a related field, and four years of increasingly responsible experience in an integrated vegetation management program, including experience in overall planning and direction of IVM programs, or an equivalent combination of experience and training. The employee must also possess a valid pesticide applicator's license.

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Waste Management Technical Specialist

142. The Waste Management Technical Specialist (annual salary $43,326-$60,070) provides highly complex technical support to the Waste Management Manager regarding waste reduction, refuse transfer, and landfills;. collects, organizes, analyzes, and interprets data; prepares detailed research, studies, reports, and recommendations; and performs related duties. The position is supervised by the Waste Management Manager, and may provide technical and functional supervision to staff on special projects.

143. The Waste Management Technical Specialist performs the following tasks: gathers, studies, and interprets federal, state, and local regulations related to waste management operations; evaluates waste management rules, regulations, laws, and procedures to determine regulatory compliance; investigates, analyzes, and prepares reports and recommendations on various waste management programs; conducts statistical analysis of data and develops data displays including graphs, charts, and tabulation of data records; prepares and presents reports, both oral and written, on program development and status; assists in the preparation and monitoring of division budget; assists in preparation of cost estimates and fiscal monitoring of waste management programs; and performs a variety of duties related to special assignments and projects.

144. The minimum qualifications for the position include knowledge of the follovving subjects: principles, practices, and methods of administrative and management analysis; basic knowledge of principles of waste management; physical and biological sciences; federal, state, and local rules and regulations pertaining to waste management operations; statistical analysis and report writing; basic principles of public financing, budgeting, and accounting functions; and computers and computer applications. The position requires the ability to interpret and apply complex local, state, and federal laws, rules, and regulations relating to waste management operations; comprehend complex technical literature; analyze data and prepare reports; communicate clearly and concisely; maintain effective worldng relationships with those contacted in the course of work; prepare and monitor a budget; and develop and maintain effective records and data management systems.

145. Experience and training required for the position are: a bachelor's degree from an accredited college or university with major course work in environmental or physical science, waste management engineering, one of the natural sciences, public or business administration, or a related field, and three years of progressively responsible administrative staff support and analytical experience, or an equivalent combination of experience and training. Experience worldng in a waste management environment is desirrable.

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Waste Reduction Specialist

146. The vVaste Reduction Specialist (annual salary $38,293-$53,082) assists the Waste Management Manager in planning and coordination of recycling and waste reduction programs. The position receives direction from the Waste Management Manager, and may provide technical and functional supe1vision to other positions for special projects.

147. The Waste Reduction Specialist performs the following tasks: coordinates development of program goals, objectives, policies, and procedures with Waste Management Manager; performs a ·wide variety of duties related to special assignments and projects; collects, organizes, and assembles data and provides reports on Lane County's and other agencies' waste reduction programs; conducts surveys of practices in other jurisdictions; makes presentations to a wide variety of public groups regarding waste reduction and recycling programs; develops written promotional and educational materials; coordinates with the Waste Management Superintendent on the functioning of the recycling field operations, including recycling at disposal sites, yard debris composting, recycling promotion, and other related recycling programs that impact or are impacted by waste management field operations; makes recommendations and assists in the preparation of the program budget; assists in budget implementation; forecasts funding needed for the Waste Reduction Program; and administers approved budget.

148. The Waste Reduction Specialist also performs the following tasks: assists in the design of recycling facilities; prepares conceptual drawings, including operational · feasibility and traffic flow coordination, with the Waste Management Superintendent; participates on a variety of community and professional committees and associations; provides technical advice and support; ensures compliance with all waste reduction mandates and site permit recycling requirements; works toward development of markets and facilitates the transportation of recycled materials; works with industiy groups to enhance local recycling operations; develops and administers contracts for recycling services not provided by in-house staff; represents the Division and its waste reduction programs to print and electronic media as necessary; coordinates with other jurisdictions and citizen groups within the County to develop and enhance waste reduction programs in local communities; prepares analysis of waste reduction issues and makes presentations to the Board of Commissioners as necessary; and may coordinate the work of interns and volunteers.

149. The minimum qualifications for the position include knowledge of the following subjects: principles of waste prevention and recycling; principles of research and report writing; computer statistical applications; principles of public relations and marketing; processes and technology utilized in waste prevention, materials recovery facilities, composting, and recycling; budgeting procedures and techniques; and legislative recycling requirements and pending legislative issues.

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150. The position requires the ability to: initiate research studies and reports, including collection, organization, and analysis; work with computerized data systems, entering, maintaining, configuring, and analyzing data; prepare and administer a budget; promote the program to selected groups, media, and the public; prepare and write reports and written communications; communicate clearly both orally and in writing; and maintain effective working relationships.

151. Training and experience required for the position are: a bachelor's degree from an accredited college or university with major course work in physical science, engineering, public or business administration, or a related field; two years of experience in waste prevention, recycling, or a related field; or an equivalent combination of experience and training.

Lead Worker

152. The Lead Worker ($38,293-$53,082) directs and performs public works maintenance operations and related duties. The position receives direction from supervisors and exercises technical and functional supervision over technical and maintenance personnel.

153. The Lead Worker performs the following tasks: (1) supervises and participates in a wide variety of duties related to an area of responsibility including road and bridge maintenance and repair, solid waste transfer and disposal, community service work in parks, or equipment maintenance; (2) inspects repair work and maintenance work during and upon completion of projects; arranges for and schedules appropriate equipment and materials necessary for assigned projects; and identifies maintenance and repair needs and recommends corrective action; (3) responds to complaints and inquiries; ( 4) maintains daily records of equipment, personnel, and materials or parts used for each project; prepares job cost estimates and submits reports; obtains quotes for equipment, materials, or parts and contracted services; prepares requisitions and approves field purchase orders; (5) participates in emergency situations; coordinates emergency and special assignments with other County departments and divisions and outside agencies and organizations; and ( 6) provides technical staff assistance on special projects and assignments as necessary; participates in the selection of staff; and helps provide and coordinate staff training. The position performs the most complex duties in the area of responsibility.

154. The minimum qualifications for the position include knowledge of the following subjects: materials, methods, equipment, and tools used in assigned area of responsibility; methods of estimating time, cost, and equipment necessary to perform assigned work; occupational hazards and standard safety precautions necessary in the

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work; purchasing procedures, forms, and techniques; principles and practices of supervision, training, and performance evaluation; and the operation or maintenance of a variety of maintenance and construction equipment.

155. The position requires the ability to: read and interpret blueprints, diagrams, and construction drawings or equipment maintenance manuals and diagrams; maintain accurate records; respond.courteously and tactfully to public inquiries and complaints; operate or maintain a variety of field maintenance equipment in a safe and efficient manner; inspect work in progress and upon completion, identify areas needing improvement; communicate clearly and concisely; train and schedule assigned personnel; and establish and maintain effective working relationships.

156. Experience and training required for the position are: completion of the twelfth grade; three years of responsible road or bridge constniction or maintenance, waste management or park maintenance, or equipment maintenance experience; or an equivalent combination of experience and training. The position also requires possession of a valid Class A Oregon CDL, medical card, and required CDL endorsements.

Lead Worker - Parks

157. The Lead Worker - Parks (annual salary $39,250-$54,413) directs and performs public works parks maintenance operations. The position receives direction from supervisory personnel, and exercises technical and functional supervision over technical and maintenance personnel.

158. The Lead Worker -Parks performs the following tasks: ( 1) enforces County Code and park rules within the County, and issues citations for violations; supervises and participates in a wide variety of duties related to the area of responsibility, including parks maintenance and repair, community service work in parks, or equipment maintenance; (2) inspects repair work and maintenance ·work during and upon completion of projects; arranges for and schedules appropriate equipment and materials necessaiy for projects; identifies maintenance and repair needs and recommends corrective action; responds to complaints and inquiries regarding operations; maintains daily records of equipment, personnel, and materials or parts used for each project; prepares job cost estimates and submits reports; obtains quotes for equipment, materials or parts, and contracted services; prepares requisitions and approves field purchase orders; (3) participates in emergency situations; coordinates emergency and special assignments with other County departments and divisions and outside agencies and organizations; and ( 4) provides technical staff assistance on special projects and assignments as necessary; performs the most complex duties in area of responsibility; participates in the selection of staff; and helps provide and coordinate staff training.

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159. The minimum qualifications for the position include knowledge of the following subjects: materials, methods, equipment, and tools; methods of estimating time, cost, and equipment necessary to perform work; occupational hazards and standard safety precautions necessary in the work; purchasing procedures, forms, and techniques; principles of supervision, training, and performance evaluation; and operation or maintenance of a variety of maintenance and construction equipment.

160. The position requires the ability to: interpret blueprints, diagrams, and construction drawings or equipment maintenance manuals and diagrams; maintain accurate records; respond courteously and tactfully to public inquiries and complaints; operate and maintain a variety of field maintenance equipment in a safe and efficient manner; inspect work in progress and upon completion; identify areas needing improvement; communicate clearly and concisely; train and schedule personnel; and maintain effective working relationships.

161. Experience and training required for the position are: completion of the twelfth grade; three years of responsible park maintenance; or an equivalent combination of experience and training. The position also requires the possession of a valid Class A Oregon CDL, medical card, and required CDL endorsements.

Information Services (IS) Department: General Facts

162. The Petition proposes to add 69 positions in ten classifications in the County IS Department to the Association unit. The County IS Department provides computer services to all County departments. Most of these employees work in the Public Service Building in downtown Eugene. Eight IS Department employees are stationed at the Delta Complex. IS employees share no common supervision with the Department of Public Works except above the Department level. All of the IS employees at issue are strike-permitted.

163. There are six subsections of the IS department: the Area Information Records System (AIRS) section, with four current AFSCME bargaining unit positions that the Association seeks to represent; the Regional Information Services (RlS) section, with three such positions; the Administrative Services section, with four such positions; the Applications section, with two such positions; the Technical Services section, with four such positions; and the Project Management section, with three such positions. Each position reports to a manager who in turn reports to the Department head.

164. The IS Department also includes AFSCME bargaining unit employees in the positions of Accounting Analyst, Senior Accounting Clerk, Office Assistant, Senior Office Assistant, and Records Officer. These positions are not included in the Petition.

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165. Some IS employees at issue, such as Senior Information Services Analyst Brad Carpenter, work exclusively in the IS Department's offices, where other AFSCME bargaining unit members provide clerical and administrative support. Other IS employees at issue routinely interact with other AFSCME bargaining unit employees, and employees in other units, in conjunction with the repair or maintenance of the . computers at their workstations. All IS employees work indoors in office settings. One IS employee works at the Lane Workforce Partnership; the Association has not included that employee in its Petition.

166. All of the positions at issue in the IS Department are unique to that Department. There is no evidence that any employees in the positions at issue in the IS Department have ever transferred into or out of that Department.

167. Seven of the ten positions in the IS Department, and 68.5 of the 69 employees at issue in this petition, are exempt from paid overtime: Database Administrator (three positions); Information Services Analyst (nine positions); Senior Information Services Analyst (ten positions); Programmer Analyst 2 (one position); Senior Programmer and Systems Analyst (35.5 positions); System Network Analyst 1 and 2 (no positions); and Senior System Network Analyst (ten positions).

Information Services (IS) Department Positions

Database Administrator

168. The Database Administrator (annual salary $53,768-$74,464) performs database administration for multiple enterprise-wide Database Management Systems (DBMS), including the design, implementation, and maintenance of database and database applications in a network environment. The employee is often assigned responsibility for project coordination and data management projects, and has an advanced level of knowledge, experience, and responsibility in the area of high-end database administration. The position receives direction from management personnel, may receive functional and technical supervision from professional personnel, and may provide technical and functional supervision to staff.

169. The minimum qualifications for the position include knowledge of the following subjects: team-building concepts; customer service practices; information analysis and data modeling techniques; computer hardware, networking, and software technology; technical documentation procedures; computer operating systems; database management systems, techniques, and concepts; standard programming techniques; application file and database design; advanced troubleshooting procedures; application

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development environments as they relate to database management; application and database security concepts and techniques; principles of project coordination; Stnictured Query Language (SQL) or object-oriented database systems; database backup and recovery techniques and strategies; and network operating system security concepts and the relationship to database security.

170. Employees must have the ability to: perform advanced data analysis; maintain effective working relationships; convey technical information simply and clearly, both verbally and in writing; improve technical sldlls; apply advanced technical writing methodologies and tools to develop policies, procedures, and technical documents; understand organizational goals and objectives, and perform work to meet those goals and objectives; coordinate projects; work with users, technical staff, and managers to implement and maintain a stable and efficient database environment; design, install, and maintain database systems; troubleshoot complex database problems; and write SQL or object-oriented procedures and reports.

171. In addition to the equivalent of a bachelor's degree from an accredited college or university 1,vith major course work in computer science or a related field, the position requires a minimum of three years of experience administering enterprise-wide database management systems, or an equivalent combination of experience and training. The position may require a criminal background investigation and, as a condition of employment, security clearance to have and be able to maintain access to the AIRS and the Law Enforcement Data System (LEDS). The Database Administrator works in a secure location in the Public Services Building separate from the other Information Services employees.

Information Services Technician

172. The Information Services Technician (annual salary $38,064-$52,728) performs installations, repairs, upgrades, maintenance, and problem determination on computer systems in a complex computer and network environment. Employees in the Infrastnicture track support network, Local Area Network (LAN), and communication systems, while members of the Client Support track support personal computers, peripherals, and users. This is an entry-level position, supervised by management personnel, with functional and technical supervision from professional personnel.

173. The position requires knowledge of the following subjects: customer service practices; internal functioning of computer hardware and software; basic principles of computer networldng; basic principles of personal computer operating systems; basic testing, installation, and troubleshooting procedures; technical documentation procedures; and basic desktop applications.

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17 4. Employees must have the ability to: communicate effectively, both verbally and in writing; maintain effective working relationships; contribute to projects as a member of a team; convey technical information simply and clearly, both verbally and in writing; assist in the preparation of technical specifications recommending the purchase of computer-related equipment; troubleshoot computer system problems; maintain accurate documentation; use word-processing, spreadsheet, and personal database applications; assist in the development of technical procedures and documentation; improve technical skills; understand organizational goals and objectives, and perform work to meet those goals and objectives.

175. In addition to the requirements above, employees in the Infrastructure track must also have knowledge of basic theory of network protocols; basic theory and operation of network technologies; basic structured wiring concepts and technologies; and basic network administration. They must have the ability to: assist in implementing, troubleshooting, and supporting Local Area Network/Wide Area Network (LAN/WAN) networks; operate and support data backup systems; operate proactive network management systems; assist in implementing and supporting wiring systems and network devices; operate and support network software; and use basic network diagnostic devices. Employees in the Client Support track must also have knowledge of the basic theory of multiple protocol and cabling schemes; and basic theo1y of the interrelationship between hardware, software, drivers, system modules, and patches. They must have the ability to work on a help desk managing multiple lines and multiple requests; diagnose and resolve routine technical problems on personal computers, workstations, terminals, peripherals, and software; and perform basic research for technical solutions to problems (such as drivers, patches, and software).

17 6. These employees must have training equivalent to a two-year technical or associate degree in a computer science field, or comparable course work, and one and one-half years of professional work experience in a computer field related to one or more of the specific IS tracks, or an equivalent combination of experience and training. In addition, the positions may require a criminal background check and a security clearance to have and be able to maintain access to AIRS and LEDS.

Information Services Analyst

177. The Information Services Analyst (annual salary $46,363-$64,210) performs analysis, design, implementation, and system management duties in one of the series tracks, in a complex computer and network environment; assumes responsibility for the operation of existing systems; and installs and configures computer hardware and software as necessary to implement systems. This position is an intermediate level position. Employees receive supervision from management personnel, and functional and technical supervision from professional personnel.

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178. Employees must have knowledge of the following subjects: customer service practices; basic principles of project coordination; internal functioning of computer hardware and software; principles of computer networking; principles of computer operating systems; testing, installation, and troubleshooting procedures; and technical documentation procedures. They must have the ability to communicate effectively; contribute to projects as a member of a team; prioritize work within established guidelines and follow through on a variety of requests; maintain effective working relationships; apply technical writing methodologies and tools to develop and maintain procedures and technical documents; convey technical information simply and clearly, both verbally and in writing; prepare technical specifications; evaluate, recommend, install, and perform diagnostics on LAN/PC hardware, software, and peripherals; understand organizational goals and objectives, and perform work to meet those goals and objectives; troubleshoot computer system problems; improve technical skills; and develop scripts and batch files.

179. In addition, Infrastructure track employees must have knowledge of these subjects: theory of network protocols; theo1y and operation of network technologies; themy and operation of hubs, switches, bridges, and routers; structured wiring concepts and technologies; network administration; e-mail and network security systems, and have the ability to implement, operate, and support local and wide area networks; implement, operate, and support network operating systems; administer e-mail security systems; install and configure network devices; and use network diagnostic devices. Employees in the Client Support track must also have knowledge of theory of the interrelationship between hardware, software, drivers, system modules, and patches, and how to implement solutions; theory of multiple network, protocols, and cabling schemes; systems that allow for software distribution and remote accessibility of client workstations; have the ability to work on a help desk managing multiple lines and multiple requests; perform research for technical solutions to problems (such as drivers, patches, and software); implement and support automated software upgrades and patches to workstations; implement and support techniques for remote accessibility of workstations; and diagnose and resolve technical problems on personal computers, workstations, terminals, peripherals, and software.

180. Employees must have the equivalent of an associate's degree from an accredited college or university with major course work in computer science or a related field, and three years of increasingly responsible professional experience in a computer field working in one or more of the specific IS tracks, or an equivalent combination of experience and training. Employees must also pass a criminal background check and security clearance to have and be able to maintain access to AIRS and LEDS.

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Programmer Analyst 1

181. The Programmer Analyst 1 (annual salary $35,339-$48,922) performs systems analysis and computer programming for the design, development, implementation, and maintenance of application software systems to meet the goals and objectives of the customer. This is the entry-level position in the Programmer Analyst series. The employee receives supervision from management, and functional and technical supervision from professional staff.

182. The position requires knowledge of the following subjects: customer service practices; standard programming techniques; general computer operations, procedures, and operating systems; file stmctures, database concepts, and capabilities of computer equipment; computer hardware and software technologies; basic troubleshooting procedures; technical documentation procedures; and basic systems analysis. Employees must have the ability to maintain effective working relationships; contribute to projects as a member of a team; perform a variety of programming tasks; program in one or more computer languages; convey technical information simply and clearly, both verbally and in writing; troubleshoot and resolve application problems; improve technical skills; and participate in a simple systems analysis.

183. The position requires the equivalent of an associate's degree from an accredited college or university with major course work in computer science or a related field, and sb:: months of programming experience that demonstrates software systems expertise, or an equivalent combination of experience and training. The position may also require a criminal background check and a security clearance for access to AIRS and LEDS.

Programmer Analyst 2

184. The Programmer Analyst 2 (annual salary $46,363-$64,210) performs intermediate systems analysis and computer programming for the design, development, implementation, and maintenance of application software systems to meet the goals and objectives of the customer served. This is the full journey level within the Programmer Analyst series. The employee receives supervision from management personnel, and functional and technical supervision from professional personnel.

185. The position requires knowledge of the following subjects: customer service practices; standard programming techniques; general computer operations, procedures, and operating systems; file structures, database concepts, and capabilities of computer equipment; computer hardware and software technologies; basic troubleshooting procedures; technical documentation procedures; data management techniques and concepts; user interface design; systems analysis, design principles, common

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methodologies and tools; more advanced troubleshooting procedures; application development environments; security concepts and techniques; personal computers, personal computer concepts, and the operation of personal computers. Employees must have the ability to maintain effective working relationships; contribute to projects as a member of a team; perform a variety of programming tasks; program in one or more computer languages; convey technical information simply and clearly, both verbally and in writing; troubleshoot and resolve application problems; improve technical skills; participate in systems analysis; develop application, functional, and design specifications; analyze business processes; design, develop, implement, and maintain applications systems; apply technical writing methodologies and tools to develop and maintain procedures and technical documents; evaluate, recommend, and implement vendor developed software; and work with database management systems for application development and maintenance.

186. The employee must have the equivalent of a bachelor's degree from an accredited college or university with major course work in computer science or a related field, and two years of programming experience that demonstrates an increasing level of software systems expertise, or an equivalent combination of experience and training, such as six years of programming experience that demonstrates an increasing level of software systems expertise. The position may also require a criminal background check and a security clearance to have and be able to maintain access to AIRS and LEDS.

Senior Information Services Analyst

187. The Senior Information Services Analyst (annual salary $53,768-$74,464) performs advanced analysis, design, implementation, and system management duties in one of the series tracks for complex computer and network systems; assumes responsibility for the operation of existing systems; acquires or modifies computer hardware and software as necessary to implement systems; and coordinates projects. Employees in these positions who work in the Infrastructure track support the networks and communications systems; those working in the Client Support track support the personal computers, peripherals, and users. This is the advanced-level position in the IS series and employees are often assigned responsibility for project coordination. The position receives direction from management personnel, and functional and technical supervision from professional personnel. The position may provide functional and technical supervision to staff. At least one such position, held by Brad Carpenter, works a portion of the time in a secure area in the IS Department.

188. The minimum qualifications for the position include knowledge of the following subjects: customer service practices; advanced project coordination and planning; advanced functionality of computer hardware and software; advanced computer networking; advanced principles of computer operating systems; advanced

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testing, installation, and troubleshooting procedures; and technical documentation procedures. Employees must have the ability to communicate effectively, both verbally and in writing; maintain effective working relationships; apply advanced technical writing methodologies and tools to develop and maintain polices, procedures, and technical documentation; convey technical information simply and clearly, both verbally and in ·writing; prepare complex technical specifications recommending the purchase of computer-related equipment; evaluate, recommend, install, and perform diagnostics on LAN/PC hardware, software, and peripherals; troubleshoot complex computer system problems; coordinate complex projects; and develop script and batch files.

189. In addition, employees in the Infrastnicture track must have knowledge of these subjects: advanced theory of network protocols; advanced theory and operation of network technologies; structured wiring concepts and technologies; advanced network administration; advanced e-mail and network security systems; have the ability to develop, implement, operate, and support LAN/WAN networks, data backup systems, proactive network management systems, directory systems, and structured wiring systems; track network software solutions; manage e-mail systems; design and manage system security; develop configurations for network devices; troubleshoot complex server and network problems; and use advanced network diagnostic devices.

190. Employees in the Client Support track must also have knowledge of these subjects: standardized desktop environment design; automated software distribution schemes; advanced theory of networks, network protocols, and cabling schemes; theory of application design; advanced theory of the interrelationship between hardware, software, drivers, system modules, patches, and how to implement solutions. In addition, employees must have the ability to develop, implement, and support software and hardware deployment systems; diagnose and resolve complex technical problems on hardware and software; perform research for complex technical solutions; and design, implement, and support techniques for remote accessibility of workstations.

191. The position requires the equivalent of a bachelor's degree from an accredited college or university with major course work in computer science or a related field, and three years of increasingly responsible experience working in an infrastructure and a client support environment, or an equivalent combination of experience and training that demonstrates the required knowledge and abilities. The position may also require a criminal background check and a security clearance to have and be able to maintain access to AIRS and LEDS.

Senior Programmer and Systems Analyst

192. The Senior Programmer and Systems Analyst (annual salary $53, 7 68-$ 7 4, 464) performs advanced systems analysis and computer programming for

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design, development, implementation, and maintenance of complex application software systems to meet the goals and objectives of the customer served; assumes responsibility for the operation of existing and new systems; and coordinates projects. This is the advanced-level position in the Programmer Analyst series, and these employees are often assigned responsibility for project coordination, and may be responsible for more than one project area. The position receives direction from management, may receive functional and technical supervision from professional staff, and may provide functional and technical supervision to staff.

193. The position requires knowledge of the following subjects: customer service practices; standard programming techniques; information analysis and data modeling techniques; computer operations, procedures, and operating systems; file structures, database concepts, and capabilities of computer equipment; computer applications and hardware and software technologies; technical documentation procedures; personal computers, personal computer concepts, and the operation of personal computers; data management techniques and concepts; user interface design; software engineering techniques; advanced systems analysis, design principles and methodologies, and tools; advanced troubleshooting procedures; advanced applications development environments; advanced security concepts and techniques; and principles of project coordination. Employees must have the ability to convey technical information simply and clearly, both verbally and in writing; improve technical skills; maintain effective working relationships, including building effective teams; program in one or more computer languages; perform advanced systems analysis; design, develop, implement, and maintain complex application systems; apply advanced technical writing methodologies and tools to develop and maintain policies, procedures, and technical documents; perform database administration duties; evaluate, recommend, and implement vendor developed software systems; understand organizational goals and objectives and perform work to meet those goals and objectives; troubleshoot complex software system problems; and coordinate complex projects.

194. Employees must have the equivalent. of a bachelor's degree from an accredited college or university vvith major course work in computer science or a related field, and three years of systems analysis and programming experience that demonstrate increased responsibility in application software maintenance and development, or an equivalent combination of experience and training. The position may also require a criminal background check and a security clearance to have and be able to maintain access to AlRS and LEDS.

System Network Analyst 1

195. The System Network Analyst 1 (annual salary $36,213-$50, 190) assists with analysis, design, implementation, and system management duties, in one or more

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tracks or areas of work, for complex computer and network configurations; assists with acquisition and customization of electronic equipment and software as necessary to implement systems and support regional use of information technology; and assists with ongoing support of existing systems. Employees in this position work in LAN Systems Support, Mainframe Support, and Network Support. This is an entry-level position in the NetworkAnalyst (SNA) series. These employees receive direction from management personnel and functional and technical supervision from professional personnel.

196. The System Network Analyst I performs the following tasks: assists with planning of computer, system, and network configurations, upgrades, and replacements; assists with acquisition of products and services; installs, upgrades, replaces, and customizes equipment and software following standard procedures; assists with administration of computer, system, and network facilities including establishment of proper access control functions; assists with diagnosis and resolution of computer, system, and network problems; performs necessary support activities outside scheduled work hours as needed to minimize computer, system, and network outages during critical periods; shares on-call duties with other staff members and responds in a timely manner 24 hours per day when problems arise; prepares technical documentation; serves on project teams; maintains and improves technical knowledge and customer support skills; and shares knowledge and information with management, customers, and co-workers via written and verbal reports, presentations, training, and informal communication.

197. The minimum qualifications for the position include knowledge of the following subjects: customer service practices; structure and capabilities of computer operating systems, network protocols, data access control, and database management systems; purposes and internal functioning of computer and network equipment and software components; data communications and distributed computing concepts; data integrity and access control considerations; data storage concepts and management; software development and customization methods; change control and quality assurance processes; and principles of project management. The position requires the ability to develop and maintain effective worldng relationships with customers, co-workers, managers, vendors, and suppliers; participate harmoniously on teams formed to accomplish projects and provide ongoing support; convey technical information simply and clearly, both in speech and in writing; quickly understand complex technical matters and apply technical knowledge in the development of general solutions; acquire new sldlls and continually update existing sldlls; maintain awareness of current technology and future technological trends; coordinate a workload that includes multiple assigned tasks; use common personal software products including e-mail, word processing, and spreadsheets; develop command language scripts and small programs to automate and customize system processes; and assist with diagnosis and resolution of technical problems.

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198. Experience and training required for the position are: the equivalent of a bachelor's degree from an accredited college or university with major course work in computer science or a related field, or an equivalent combination of experience and training. The positions require a criminal background investigation and may require security clearance for access to AIRS or LEDS.

System Network Analyst 2

199. The System NetworkAnalyst 2 (annual salary $44, 138-$61,090) performs analysis, design, implementation, and system management duties, in one or more of the series tracks, for complex computer and network configurations; acquires and customizes electronic equipment and software as necessary to implement systems and support regional use of information technology; assumes responsibility for ongoing support of existing systems; and performs related duties as required. The tracks for this classification series are LAN Systems Support, Mainframe Support, and Network Support, and employees assigned to work in those tracks provide enhancement and ongoing technical support of their assigned system. This is the intermediate-level position in the SNA series. Positions at this level differ from other SNA positions by the level of responsibility assumed and the level of knowledge and experience expected. These positions may be assigned to coordinate small projects. The positions receive direction from management personnel and receive functional and technical supervision from professional personnel.

200. The System Network Analyst 2 performs the following tasks: plans basic computer, system, and network configurations, upgrades, and replacements; researches products and services, prepares procurement specifications, and evaluates vendor proposals; installs, upgrades, replaces, and customizes equipment and software follovving general guidelines; administers basic computer, system, and network facilities including establishment of proper access control functions; diagnoses and resolves routine computer, system, and network problems; performs necessary support activities outside scheduled work hours as needed to minimize computer, system, and network outages during critical periods; shares on-call duties vvith other staff members and responds in a timely manner 24 hours per day when problems arise; plans, develops, and documents operational procedures; coordinates small projects; maintains and improves technical knowledge and customer support skills; shares knowledge and information with management, customers, and co-workers via written and verbal reports, presentations, training, and informal communication.

201. The minimum qualifications for the position include knowledge of the follo;ving subjects: customer service practices; structure and capabilities of computer operating systems, network protocols, data access control, and database management systems; purposes and internal functioning of computer and network equipment and

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software components; data communications and distributed computing concepts; data integrity and access control considerations; data storage concepts and management; software development and customization methods; change control and quality assurance processes; and principles of project management.

202. The positions require the ability to: develop and maintain effective working relationships with customers, co-workers, managers, vendors, and suppliers; participate harmoniously on teams formed to accomplish projects and provide ongoing ·support; convey technical information simply and clearly, both in speech and in writing; quickly understand complex technical matters and apply technical knowledge in the development of general solutions; acquire new sldlls and continually update existing skills; maintain awareness of current technology and future technological trends; coordinate a workload· that includes multiple assigned tasks; use common personal software products including e-mail, word processing, and spreadsheets; develop command language scripts and small programs to automate and customize system processes; diagnose and resolve routine technical problems; and plan and coordinate small projects.

203. Employees assigned to the various tracks must also be familiar with matters such as the relevant hardware and software; utilities and diagnostic techniques; hardware and software installation and customization; and procedures for maintaining the function of the tracks.

204. E::qJerience and training required for the position are: a bachelor's degree from an accredited college or university with major course work in computer science or a related field, and two years of increasingly responsible system network analyst experience, or an equivalent combination of experience and training.

Senior System Network Analyst

205. The Senior System Network Analyst (annual salary $53,768-$74,464) performs advanced analysis, design, implementation, and system management duties, in one or more of the series tracks, for complex computer and network configurations; acquires and customizes electronic equipment and software as necessary to implement systems and support regional use of information technology; assumes responsibility for ongoing support of existing systems; and coordinates projects. The position is assigned to one of three tracks: LAN Systems Support; Mainframe Support; or Network Support. This is the advanced-level class in the SN.A series, and differs from the other SN.A positions by the level of responsibility assumed and the level of knowledge and experience expected. Positions in this class are often assigned responsibility for project coordination. The position receives direction from management personnel and receives functional and technical supervision from professional personnel; the position provides functional and technical supervision to assigned staff.

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206. The Senior System Network Analyst performs the following tasks: plans advanced computer, system, and network configurations, upgrades, and replacements; researches complex products and services, prepares procurement specifications and evaluates vendor proposals; installs, upgrades, replaces, and customizes unique equipment and software configurations; administers complex computer, system, and network utilities including establishment of proper access control functions; diagnoses and resolves difficult computer, system, and network problems; performs necessary support activities outside scheduled work hours as needed to minimize computer, system, and network outages during critical periods; shares on-call duties with other staff members and responds in a timely manner 24 hours per day when problems arise; plans, develops, and documents complex operational procedures; coordinates large important projects; maintains and improves technical la1owledge and customer support skills; tracks technology trends and recommends future directions and standards; shares la1owledge and information with management, customers, and co-workers via written and verbal reports, presentations, training, and informal communication; and may schedule, assign, coordinate, monitor, and review the work of assigned staff.

207. The minimum qualifications for the position include lmowledge of the following subjects: customer service practices; structure and capabilities of computer operating systems, network protocols, data access control, and database management systems; purposes and internal functioning of computer and network equipment and software components; data communications and distributed computing concepts; data integrity and access control considerations; data storage concepts and management; software development and customization methods; change control and quality assurance processes; principles of project management; techniques for facilitating group processes including meetings and electronic collaboration; and principles of functional and technical supervision.

208. The position requires the ability to: develop and maintain effective working relationships with customers, co-workers, managers, vendors, and suppliers; participate harmoniously on teams formed to accomplish projects and provide ongoing support; convey technical information simply and clearly, both in speech and in writing; quickly understand complex technical matters and apply technical lmowledge in the development of general solutions; acquire new skills and continually update existing skills; maintain awareness of current technology and future technological trends; coordinate a workload that includes multiple assigned tasks; use common personal software products including e-mail, word processing, and spreadsheets; develop command language scripts and small programs to automate and customize system processes; diagnose and resolve complex technical problems; plan and coordinate large, complex projects; and plan, coordinate, and document regional information technology architectures.

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209. Employees assigned to the various tracks must also be familiar with matters such as the relevant hardware and software, utilities and diagnostic techniques, hardware and software installation and customization, security functions, and procedures for maintaining the function of the tracks.

210. Experience and training required for the position are: a bachelor's degree from an accredited college or university with major course work in computer science or a related field, four years of increasingly responsible system network analyst experience, or an equivalent combination of experience and training. The positions require a criminal background investigation and may require security clearance for access to AIRS or LEDS.

AFSCME Non-IS Bargaining Unit Positions6

211. The 700 AFSCME bargaining unit employees are located in all County departments, including positions in the IS Department and Public Works Departments that are not included in this petition. The largest number of AFSCME-represented employees work in the County Public Service Building. Some AFSCME unit employees work elsewhere, including in the Public Works Department at the Delta Complex building. All AFSCME bargaining unit employees are strike-permitted.

212. The AFSCME bargaining unit includes these professional, paraprofessional, and technical positions with the specified annual salaries: Accountant ($41,995-$58,178),7 Accounting Analyst ($39,000-$54,080), Administrative Analyst ($36,213-$50, 190),Associate Planner ($43,056-$59,634), Cartographer/GIS Specialist ($37,128-$51,459), Compliance Officer ($39,978-$55,390), Developmental Disability Specialist ($37 ,128-$51,549), Developmental Disability Specialist - Bil ($39,000-$54,080), Electrical Inspector ($41,995-$58,178), Employment Specialist 2 ($39,000-$54,080), Environmental Health Specialist 2 ($39,978-$55,390), Environmental Health Specialist 2-Bil ($41,995-$58,178), Family Mediator ($38,064-$52,728), Juvenile Counselor 1 ($38,064-$52,728), Juvenile Counselor 2 ( $40, 97 6-$5 6 ,7 42), Medical Assistant 2 ( $32. 011-$44,346), Medical Lab Technologist ($36,213-$50,190), Mental Health Associate ($35,339-$48,922), Nlental Health Care Coordinator Specialist ($41,995-$58,178), Mental Health Specialist 1

6The County provided an exhibit containing some details of AFSCME bargaining unit positions that it called a "Random Selection of 25 (out of 125) Current 1\.FSCME Classifications." We summarize the information about the 23 non-IS positions in that exhibit here.

7Prior to the IT AFSCME unit employee five percent raise, their wages were closer to the other unit professionals.

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($37,128-$51,549), Nutritionist/Dietician ( $37,128-$51,549), Paralegal ($33,634-$46,571), Payroll Specialist ($36,213-50,190), Planner ($39,000-$54,080), Property Appraiser 3 ($39,978-$55,390), Property Appraiser 4 ($44,138-$61,090), Senior Administrative Analyst ($39,000-$54,080), Senior Animal Welfare Officer ($38,064-$52,728), Senior Building Inspector ($39,978-$55,390), Senior Juvenile Counselor ($46,363-$64,250), Senior Mental Health Specialist ($39,978-$55,390), Senior Planner ($46,363-$64,210), Senior Program Services Coordinator ($44,138-$61,090), Public Health Educator ($38,064-$52,728), Special Waste Specialist ($39,000-$54,080), and Youth Advocacy Coordinator ($39,000-$54,080). The number of positions and the educational and training requirements for most of these positions do not appear in the record.

213. The AFSCME bargaining unit includes these positions with the specified annual salaries: Accounting Clerk 1 and Office Assistant 1 ($24,398-$33,821); Clerieal Assistant, Custodian, and Kennel Attendant ($22,090-$30,597); Document Resource Center Specialist, Data Entry Operator, Mail Clerk, Office Assistant 2, Secretary 1 ( $2 7 ,602-$38 ,210); Justice Court Clerk, Property Appraiser 1 ( $2 9, 7 44-$41,226); Legal Secretary 1 ($28,288-$39,187); Maintenance Specialist 1 ($26,270-$36,421); Medical Assistant 1 ($28,995-$40,123); Stores Clerk ($26,936-$37,274); and Waste Management Fee Collector ($23,795-$32,947). The number of these positions and the educational and training requirements for most of these positions do not appear in the record.

214. Thirty-seven of the 113 positions in the AFSCME unit are exempt from paid overtime, including Accountant, Accounting Analyst, Administrative Analyst, Developmental Disability Specialist, Employment Specialist, Environmental Health Specialist, Family Mediator, Juvenile Counselor, MHO Care Coordinator Specialist, Medical Lab Technologist, Mental Health Specialist, Planner, Program Services Coordinator, Special Waste Specialist, Lead System Programmer, and Youth Advocacy Coordinator. The number of these positions and the educational and training requirements for most of these positions do not appear in the record.

215. Both the AFSCMF/County (2008 - 2011) and Association/County (2006 - 2009) collective bargaining agreements provide for a dispute resolution process ending in binding arbitration, promotional preference for unit employees, and transfers within classifications (although only the AFSCME agreement provides that employees be notified prior to the County's use of the transfer or recall list). Both agreements provide for bargaining unit employee seniority and bumping rights in the event of layoffs. Both agreements require just cause for bargaining unit employee discipline.

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216. There is no evidence that any non-IS AFSCME bargaining unit positions duplicate any positions at issue in the IS or Public Works departments. There is no evidence that any non-IS AFSCME-represented employees have transferred into an IS or Public Works position at issue.

217. The Senior Administrative Analyst pos1t10n (annual salary $39,000-$54,090) receives direction from management personnel, and may exercise direct supervision over clerical, technical, and professional personnel. The position requires the equivalent of a bachelor's degree from an accredited college or university with major course work in business administration, public administration, organizational analysis, accounting, finance, or a related field, and three years of responsible administrative staff support ai1d analytical experience, or an equivalent combination of experience and training.

218. The Building Inspector 1 (annual salary $34,466-$4 7, 7 57) is supervised by the Building Official and the Senior Plans Examiner, who provides technical and functional supervision. The position requires the equivalent of completion of the twelfth grade. Additional specialized training in the building trades or a related field and one year of building construction experience is desirable. The individual must be able to obtain a C level certification in one area of inspection.

219. The Building Inspector 2 (annual salary $38,064-$52,728) is supervised by the Building Official and the Senior Plans Examiner, who provides technical and functional supervision. The position requires the equivalent of completion of the twelfth grade and two years of responsible building inspection experience. Additional specialized training in the building trades or a related field is desirable. The individual must be able to obtain a B level certification in one area of inspection.

220. The Senior Building Inspector (annual salary $39,978-$55,390) position receives direction from the Building Program Manager and exercises functional and technical supervision over clerical and technical personnel. The position requires education equivalent to the completion of the twelfth grade, and three years of responsible building and stnictural inspection experience, or an equivalent combination of experience and training. Additional specialized training in the building trades or a related field is desirable. The individual must be able to obtain A and C level certifications in two or more areas of inspection.

221. The Cartographer/GIS Technician (annual salary $32,011-$44,346) is supervised by a Department supervisor or manager and may also be supervised by a Cartographer/GIS Specialist, who provides technical and functional supervision. The position requires an Associate's degree with major course work in computer science, geography, surveying, engineering, or a related field, and two years of experience working with survey mapping or geographic information systems, or an equivalent combination of experience and training.

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222. The Compliance Officer (ani;ual sala1y $39,978-$55,390) receives direction from the Land Management Manager, Public Works Director, or designee, and may exercise functional and technical supervision over clerical and technical personnel. The position requires education equivalent to the completion of the twelfth grade, and four years of increasingly responsible experience in planning, building, or community development.

223. The Custodian-Detention (annual salary $25,002-$34,653) is supervised by assigned supervisory or management personnel. The position requires formal or informal education or training which ensures the ability to read and write at a level necessary for successful job performance, and two years of responsible janitorial or custodial experience, or an equivalent combination of experience and training.

224. The Document Resource Center Specialist (annual salary $27,602-$38,210) is supervised by the Document Resource Center Supervisor. The position requires education equivalent to the completion of the twelfth grade, and two years of responsible word processing, document production or typing, and clerical experience with software applications on a microcomputer, or an equivalent combination of experience and training. Additional specialized training in secretarial sciences, data processing, document production, graphics, or a related field is desirable.

225. The Senior Document Resource Center Specialist (annual salary $31,221-$43 ,243) is supervised by the Management Services Supervisor, and exercises technical and functional supervision over Center personnel. The position requires education equivalent to completion of the twelfth grade, and at least two years of responsible word processing, document production, and experience with software applications, including graphics, on a microcomputer, or an equivalent amount of experience and training. Additional specialized training in secretarial sciences, data processing, document production, graphics, or a related field is desirable.

226. The Employment Specialist 1 (annual salary $35,339-$48,922) is supervised by designated management and lead staff, who provide technical and functional supervision. The position requires the equivalent of a bachelor's degree from an accredited college or university with major course work in social services, business, public administration, or a related field. The employee must be fluent in English and Spanish. One year of responsible professional employment training experience is desirable.

227. The Senior Justice Court Clerk (annual salary $34,466-$47,757) is supervised by the Justice of the Peace, and exercises functional and technical supervision over the Justice Court Clerk. The position requires education equivalent to the completion of the twelfth grade, and three years of responsible legal processing and

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assistance experience, or an equivalent amount of experience and training. Additional specialized training in legal terminology or a related field is desirable. The employee may be required to obtain LEDS certification.

228. The Juvenile Counselor 1 (annual salary $38,064-$52,728) is supervised by assigned staff. The position requires a bachelor's degree from an accredited college or university with major course work in social work or a related field, and sbc months of social work experience involving work vvith juvenile offenders and the Juvenile Court system, or an equivalent combination of experience and training.

229. The Mental Health Specialist 1 (annual salary $37,128-$51,459) is supervised by supervisory or management personnel vvho provide technical and functional supervision. The position requires a master's degree from an accredited college or university with major course work in a mental health field, psychology, counseling, social work, or a related field, or an equivalent combination of experience and training. One year of experience worldng directly with mentally or emotionally disturbed clients in the provision of behavioral health services is highly desirable. Some positions may require QMHP designation.8

230. The Mental Health Specialist 2 (annual salary $38,064-$52, 728) is supervised by management personnel, and may exercise technical and functional supervision over other staff. The position requires a master's degree from an accredited college or university with major course work in a mental health field, psychology, counseling, social work, or a related field, and two years of responsible professional mental health experience, including one year of experience specific to the program or area of assignment. Some positions may require special certification or QMHP designation.

231. The Senior Mental Health Specialist (annual salary $41,995-$58,178) is supervised by supervisory or management personnel. The position requires a master's degree from an accredited college or university with major course work in a mental health field, psychology, sociology, counseling, or a related field, and three years of responsible professional mental health or professional mental health crisis experience, or an equivalent combination of experience and training. Some positions may require special certification.

232. The MHO [Mental Health Organization] Care Coordination Specialist (annual salary $41,995-$58,178) receives direction from assigned supervisory or management personnel. The position requires a master's degree from an accredited

8The definition of QMHP does not appear in the record. An online acronym dictionary defines the term as "Qualified Mental Health Professional" http://www.acronymfinder.com/Qualified-Mental-Health-Professional-%28QMHP%29.html.

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college or university with major course work in a mental health field, psychology, sociology, counseling, or a related field, and three years of responsible professional mental health experience, including experience with managed care, demonstrating a comprehensive understanding of the system. The individual must also be able to be credentialed as a QMHP.

233. The Planner (annual salaiy $39 ,000-$54,080) is supervised by the Planning Program l'vlanager and the Associate Planner, who exercises technical and functional supervision. The position requires a bachelor's degree from an accredited college or university with major course work in planning or a related field, or an equivalent combination of experience and training.

234. The Program Services Coordinator 1 (annual salary $38,064-$52,728) receives direction from assigned management personnel. The position requires a bachelor's degree from an accredited college or university with major course work in public administration, community services, business administration, or a related field, and two years of increasingly responsible experience in community and human services planning, development, and evaluation.

235. The Senior Sales Data Analyst (annual salary $45,240-$62,629) position receives direction from the Appraisal Manager, and exercises functional and technical supervision over assigned personnel. The position requires the equivalent to a bachelor's degree from an accredited college or university with major course work in statistics, economics, business administration, or a related field, and four years of responsible residential, niral, and commercial property appraisal experience, appraisal data analysis, and computer applications experience, or an equivalent combination of experience and training. The position may require designation as a Certified Appraiser under provisions of ORS 308.010.

236. The Secretaiy I (annual salary $27,602-$38,210) is supervised by a departmental supervisor or manager. The position requires education equivalent to the completion of the twelfth grade. Additional specialized training in secretarial sciences, office management, or a related field, and one year of responsible secretarial and clerical experience is desirable.

237. The Special Waste Specialist (annual sala1y $39,000-$54,080) receives direction from the Waste l'vlanagement Manager, and may provide technical and functional support to other positions for special projects. The position requires the equivalent of a bachelor's degree from an accredited college or university with major course work in environmental, chemical or physical science, one of the natural sciences, engineering, or a closely related field, and three years of progressively responsible

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experience in environmental compliance, solid or hazardous waste management, or public health. Experience in solid waste management worldngwith hazardous and special waste and environmental compliance issues for landfill operations is desirable. The individual must also be able to acquire the OSHA Hazardous Waste Operations and Emergency Response (HAZWOPER) and Bloodborne Pathogen Certifications.

238. The Assistant Veteran Services Coordinator (annual salary $33,634-$46,571) position receives direction from the Veteran Services Coordinator, exercises direct supervision over program volunteers and interns, and may exercise technical and function supervision over support staff. The position requires education equivalent to the completion of two years of college, two years of responsible experience in community service providing direct client assistance requiring public contact, interviewing, and data evaluation. A minimum of six months' experience dealing with government benefit regulations and/or veteran programs and course work or a degree in business or the social sciences is desirable.

Additional Facts Regarding Information Services Employees and AFSCME

239. A provision in the InternationalAFSCME constitution provides that union members who engage in activities such as aiding a competing labor organization in removing positions from an AFSCME unit (popularly known as a "raid") are ineligible to hold local or national office for four years.

240. AFSCME is governed by an elected Executive Board made up of a President (Lori Greene), First Vice President and Chief Steward (Paula Medaglia), Secretary/Recorder, and other officers, as well as representatives from each department with members in the Local. Other members of the Executive Board include James Dotson and Jim Dyer. 9 IS Department employees are entitled to a representative on the Local Executive Board, and this seat was held from January 2008 until July 2009 by Robyn Repsher, a Senior Programmer and Systems Analyst.

241. A bargaining team composed of bargaining unit members and a service representative from the statewideAFSCME Council 7 5 (Jim Steiner) represent the Local in collective bargaining with the County.

242. Kirk Mauser, an IS employee, was an officer with AFSCl\tiE from 1996 until April 2009, when he left employment with the County. Mauser was also one of five AFSCME bargaining unit members on its most recent bargaining team.

9The record does not indicate Dotson and Dyer's positions on the Executive Board.

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243. Over the course of its representation of the IS employees, AFSCME has represented one or more of them in the disciplinary and grievance process, including a grievance which overturned a termination. IS employees have no apparent quarrel with AFSCME's representation in that regard.

244. Prior to December 2007, AFSCJ\l!E changed from a flat rate dues structure to a progressive rate strncture, in which lower-paid employees paid less and higher-paid employees paid more. The change in dues stnicture was unpopular with the IS employees.

245. In 2007, IS employees concluded that their wages were significantly below the market for similar positions and that this caused turnover, unfilled IS Department vacancies, and extra work for the remaining employees. They began a campaign to raise their wages. 10

246. In December 2007, IS employees approached AFSCME officials and urged them to ask the County to increase IS employee wages. Later that month, AFSCME Council Representative Steiner and AFSCME Executive Board member Dyer met with some IS employees. IS employee Baldwin told Steiner that he believed the County would provide an immediate increase in IS employee wages if requested. In fact, the County wished to conduct a compensation study first.

247. The existing AFSCME-County contract expired on June, 30, 2008. The contract provided for a Joint Labor/Management Classification Committee (JLMCC), giving AFSCME the opportunity to provide input to the County regarding the classification of employees with regard to "seniority, layoff and recall and internal equity." Through the JLMCC, AFSCME could also request up to six "formal classification review[ s ]" in each fiscal year. It is not clear from the record ;vhether this process would necessalily address disparities between market salaries and contractual salaries.

248. In late 2007 or early 2008, AFSCME asked the County to perform a full compensation study on the positions in the IS Department. The County declined.

249. In early 2008, AFSCME representative Steiner talked with County Labor Relations Program Supervisor Roland Hosldns about IS employee wages. Hosldns

'0The IS Department had 18 unfilled positions in the fall of 2007. The number of

unfilled positions dropped after the contract was agreed to in February 2009, dropped more when the economy began to worsen, and dropped further when the contract was ratified. At the· time of hearing, the IS Department had 12 unfilled vacancies.

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proposed that the parties use the contractual classification review process to increase wages for IS Department staff. Hoskins stated that the County would pay to revie'v six positions and suggested that AFSCME pay to review the remaining four positions. AFSCME declined, preferring to raise the matter through a full compensation study (to include job market issues) and conventional bargaining. 11 Meanwhile, IS employee activists continued to press the County and AFSCME for an immediate wage increase.

250. Following this discussion, AFSCME decided that it would perform a full market study on the compensation of IS Department staff itself, but decided to wait until it had hired and trained a research analyst to perform the analysis in-house. That compensation study was completed in May 2008, and AFSCME presented its results to the County at that time.

251. IS employee activists believed that the County and AFSCME were providing conflicting explanations for the failure to grant IS employees an immediate wage increase. The IS activists therefore contactedAFSCME representatives and pressed them to hold a meeting with the County and IS activists together, or allow the IS activists to negotiate with the County separately. At some point during these discussions, Steiner told Baldwin that AFSCME would not consent to IS employees conducting a separate negotiation with the County, and that if they did so, they would commit an unfair labor practice. Baldwin was offended because he believed that Steiner had threatened to sue Baldwin if he negotiated separately 1'vith the County. 12

252. In January 2008, AFSCME notified the County that it wished to engage in bargaining for a successor collective bargaining agreement. After some difficulty starting the bargaining process, which caused AFSCME to file a grievance, the parties started bargaining in May 2008.

253. As part of its bargaining representation, AFSCME sent out a survey to bargaining unit members regarding their priorities in bargaining. IS Executive Board and

11At the hearing in RC-10-08, AFSCME witness Steiner suggested that only three classification review slots, to be paid by the County, remained available under the contract for that period. At the same hearing, County labor Relations Manager Hoskins and County Human Resources Director Greta Utecht testified that the County had nevertheless offered to pay for six studies of IS positions. There is no evidence, however, that Steiner knew that the County planned to waive this provision of the collective bargaining agreement.

12Baldwin testified that Steiner told him that AFSCME would sue Baldwin personally if he engaged in direct negotiations with the County. Steiner denied making a threat to sue Baldwin personally; resolution of this factual dispute is not necessary to resolve this Petition. Of course, had the County negotiated a wage increase with the IS employees without AFSCME's permission, it would have committed an unfair labor practice. Lane Unified Bargaining Council v. McKenzie School District #68, Case No. UP-14-85, 8 PECBR 8160, 8196-8202 (1985).

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negotiating team member Mauser oversaw the survey. The majority of bargaining unit members identified maintaining current levels of health insurance benefits as the first priority, and increasing wages as the second priority. The IS workers identified raising their wages from below market levels as their first priority.

254. On April 30, 2008, acting upon IS employees' unhappiness withAFSCME and desire for other representation, the Association filed a petition for representation to transfer the IS positions and several County Building Department positions from the AFSCME bargaining unit into the existing Association bargaining unit. (RC-10-08.) After being informed that the petition was untimely, the Association amended it on May 7, 2008, to a representation petition which ultimately sought to include the following positions in the Association bargaining unit: Compliance Officer, Compliance Specialist, Associate Planner, Senior Planner, [Cartographer] Cadastral/GIS Technician, [Cartographer] Cadastral/GIS Specialist, Information Services Technician, Information Services Analyst, Senior Information Services Analyst, Programmer Analyst 1, Programmer Analyst 2, Senior Programmer and Systems Analyst, System Network Analyst 1, System Network Analyst 2, Senior System Network Analyst, Database Administrator, Management Analyst, Associate Surveyor, Administrative Analyst, Property Management Officer 1 and 2, Land Management Technician, Building Inspector 2, Senior Building Inspector, and Plans Examiner 1 and 2.

255. The hearing in RC-10-08 was held on July 7, 2008. IS employees Baldwin, Carpenter, and Rhett Karr, among others, testified in favor of the petition, and against AFSCME. Their testimony included discussion of how they believed AFSCME had failed to properly represent them in connection with their desired pay increase and how the interests of the IS employees did not parallel those of the rest of the AFSCl\!lE unit. The IS employees testified in part that their work was professional, technical, and well-compensated, and that they, therefore, lacked a community of interest or common interests with the rest of the AFSCME unit and should be moved to the proposed unit.

25 6. At one point during bargaining, the County proposed that the IS employees be granted a five p.ercent wage increase. However, the County became concerned that the proposal might be considered an undue influence on IS employees given the pending representation petition, and withdrew the proposal, with AFSCME's agreement, until the petition was resolved. The County renewed the proposal when it believed that the petition was resolved. 13

257. Some AFSCME unit members took a dim view of the IS employees' attempt to create a separate unit and a delay in bargaining caused by that attempt. Some

13There is no evidence that IS employees objected to the tabling of IS employee wage issues during the litigation of RC-I 0-08.

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AFSCME members believed that the IS employees' attempt to create another unit delayed bargaining for six months, by which time the local and national economic downturn had created a poor bargaining climate.

258. AFSCME-County bargaining continued through the end of 2008. During Febmary 2009, the key issue in bargaining was whether the unit's health insurance benefits would be maintained. AFSCME wanted the same benefits, while the County sought to move all bargaining unit employees to another plan which would have increased employee cost, particularly for prescriptions. AFSCME leadership believed that the increase in costs to employees resulting from this change would be especially difficult for its lowest-paid members. 14

259. At one point during bargaining, the AFSCME bargaining team proposed delaying the proposed five percent wage increase for rs employees to the second year of the contract in order to retain the status quo regarding medical benefits; the AFSCME proposal did not delay a proposed three percent cost of living increase (COLA) for all unit members. At the time the proposal was made, IS AFSCME bargaining team member Kirk Mauser was on vacation, but there is no evidence that this had any bearing upon the AFSCME proposal or its timing. Mauser had been consulted regarding theAFSCME bargaining strategy. 15

260. At least some IS employees were incensed by this AFSCME proposal, charging that AFSCME had taken their salary increase "off the table" when their representative was absent. When the responsive County proposal retained the first year IS ·wage increase but reduced medical benefits, IS employees began demanding that AFSCME accept the County's proposal. They lobbiedAFSCME leaders through e-mails and conversations. Other AFSCME unit members were aware of the IS employees' lobbying efforts.

261. A number of IS employees sent several e-mails to AFSCME leadership, pressing them to secure the IS wage increase or explain their failure to do so. These employees were not satisfied with the responses they received from AFSCME officials. AFSCME leaders told at least one IS activist that the IS employee concerns were not AFSCME's primary concern, and that "the tail can't wag the dog." IS employee activists were offended by this remark.

14The record does not contain evidence of the actual costs to employees of the employer's proposal.

15County negotiators believed that AFSCME was trying to use the County's interest in increasing the salaries of IS employees to leverage additional benefits for the rest of the AFSCME unit.

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262. Lise Stuart was a Senior Administrative Analyst for the County Human Services Commission and an AFSCME steward. She had previously agreed with AFSCME's goals of obtaining wage increases for the IS employees, wage increases for all employees, and preserving current medical benefits. She was also a ·member of the AFSCME bargaining team through Februaiy 2009. After the parties deadlocked, she changed her mind and demanded that AFSCME accept the County's last proposal. AFSCME officials responded that she had a duty to represent all unit employees, not just the IS employees. Stuart continued to vigorously press for the acceptance of the County offer.

263. AFSCME local president Lori Greene met with IS employees twice during bargaining to discuss their concerns. She offered to meet ·with them a third time but the IS employees declined.

264. As bargaining continued, the County adhered to its proposals granting the IS employee five percent wage increase and reducing medical benefits, while AFSCME adhered to its proposals to provide the IS employee wage increase and retain the previous medical benefits.

265. In response to bargaining unit members' inquiries about the IS employees' demands that AFSCME accept the County's last offer, Steiner stated that the IS employees received wages at the higher end of the AFSCME unit employee wage scale. IS employee activists believed that it was unfair for Steiner to disclose this tn1thful information, and that doing so reflected bias against IS employee goals and promoted negative feelings towards IS employees from other AFSCME unit members.

266. In response to the deadlock in bargaining with the County, AFSCME leadership began discussions with bargaining unit members about strildng if their efforts failed at the negotiating table. vVhen the IS employee activists heard talk of a strike, they were outraged and immediately assured the County through a joint letter that they would not strike and would not honor any AFSCME picket line. They offered to work from home if necessary, and asked that the County begin planning for that contingency.

267. When the parties' negotiations moved to the mediation phase, Stuart and an IS employee knocked on the door of the room where the AFSCME bargaining team was worldng, and gave the bargaining team a letter or petition urging that the team accept the County's last offer.

February 2009 AFSCME Meetings

268. In Februa1y 2009, AFSCME held two general membership informational meetings. They were attended by approximately 250 baragaining unit members. The members were closely divided over whether AFSCME should accept the County's last

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offer granting pay increases but reduce medical benefits, and whether AFSCME should prepare for a strike. The meetings were contentious.

269. Kyle Sullens, a Senior Programmer in the IS Department, attended at least one of the February membership meetings. He had been active in efforts to push AFSCME to promptly address IS employee concerns, and had sent numerous e-mails to AFSCME president Greene and Executive Board members Dotson and Medaglia. Sullens was not satisfied with the responses he had received to his e-mails.

270. During one of the February meetings, Sullens rose to speak and was recognized by AFSCME President Greene. Sullens asked if he could make a motion that AFSCME accept the latest offer by the County. His question prompted AFSCME leadership to consult with each other. 16 After they consulted, the chair recognized another person. Sullens tried to be recognized again, without success, and eventually sat down. Sullens believed this was another example of AFSCME ignoring the concerns of IS employees.

271. Before the start of one of the February meetings, some non-IS AFSCME bargaining unit employees moved away from seats adjacent to some IS employees, stating that they did not want to sit with the IS employees. IS employees also heard other employees make comments characterizing the IS employees as "spoiled brats" and as having an "elitist attitude." 17 IS employee activists believed these expressions demonstrated an unfair bias on the part of other bargaining unit members against the IS employees.

272. During this time period, some IS employees who visited the vvorkstations of other AFSCME-represented employees perceived that some non-IS employees were cool to the IS employees.

273. vVhile some non-IS AFSClYIE bargaining unit members expressed displeasure with some IS employees during this time period, there was no evidence that those expressions were widespread or that they extended to all IS employees.

16The meeting had been advertised as an informational meeting, and the AFSCME Executive Board had not distributed information normally sent out prior to a ratification vote.

17The IS activists who testified at hearing appeared to be genuinely surprised and offended that their persistent efforts to persuade AFSCME to accept a settlement that increased IS employees' wages and decreased medical benefits for all bargaining unit members caused some bargaining unit members to express displeasure with them.

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274. This Board issued its decision dismissing the Association's petition in RC-10-08 on February 26, 2009.

2 7 5. At the end of February 2009, AFSCME and the County reached a tentative agreement over a new collective bargaining agreement. The agreement included a 3. 9 percent cost of living increase for all bargaining unit employees, an additional five percent increase in the salaries of IS employees; in addition, all bargaining unit employees retained their past level of medical benefits. 18 The contract was signed in May 2009, with the pay increases the IS employees and COLA provided retroactive to July 2008. 19 IS employee activists were not mollified by this outcome. At the time of hearing, they remained steadfast in their view that had AFSCME appropriately represented the IS employees, AFSCME would have accepted the County's proposal for their five percent wage increase at the time it was presented.

AFSCME Executive Board Vacancy

276. During January 2009, the AFSCME Secretary-Recorder Executive Board position became vacant. Rhett Karr, an IS Database Administrator, submitted his name for the position. Karr had testified in favor of the IS employees joining a separate bargaining unit at the hearing in RC-10-08, had joined the IS employees who announced their intention not to support a strike, and had supported the IS activist position that AFSCME should have accepted the County pay increase to them without holding out for maintenance of medical benefits. No other unit members requested to run for the position by the filing deadline. Karr therefore expected to be appointed to the position at the next general membership meeting.

277. After learning ofKarr's interest, Executive Board member Dotson objected to Karr as ineligible for the position, based on the anti-raid provision of the AFSCME International Constitution. Dotson apparently intended to raise the issue at the membership meeting, if necessary. In order to avoid a personal and presumably divisive public debate, the AFSCME Executive Board decided to recruit additional candidates for the position and select one through an interview process. The Executive Board ultimately interviewed two or three candidates for the position, including Karr. Karr was not asked to address the organizational disloyalty issues during his interview.

18Thewages of some other groups of County employees were also below market, including Electricians, Land Management employees, and some Public Works employees. None of these groups of employees received a special pay increase like the IS employees.

19During approximately the same time period, the County and the Association reached agreement on a new collective bargaining agreement, which provided for a 2.5 percent COLA for Association bargaining unit members.

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278. Some members of the Executive Board supported Karr, and the Board members discussed Karr's participation in the hearing in RC-10-08. During the discussion, Steiner told the board that Karr had testified in support of a competing labor organization at the hearing, and suggested that Board members who were curious about Karr's testimony could listen to the tape recording of the hearing. Karr, who learned of this statement later, viewed this statement as another example of AFSCMEs bias against him and other IS employees. The AFSCME Executive Board ultimately selected another person for the position because of Dotson's objection. When Karr learned of his rejection, and the reasons for it, he was outraged. Karr characterized the situation as his having been "blackballed" from holding AFSCME office.

Stuart, Baldwin, and Repsher

279. As noted above, AFSCME steward Stuart had been an aggressive advocate for acceptance of the early County wage increase offer. On April 1, 2009, AFSCME Chief Steward Paula Medaglia notified Stuart that she was removing her from her steward position. Medaglia believed that Stuart's behavior on the bargaining team was volatile and emotional, that some of her e-mails were abusive, and that Stuart was pursuing the interests of the IS employees to the detriment of others. Medaglia's e-mail stated, in part:

"Subject: Your Position as Union Steward

"Lise - In the last two years, I have tried to accommodate your schedule so that you can attend Stewards' meetings, but you did not respond to emails about attending those meetings nor did you communicate your unavailability. Based on your lack of attendance and the scarcity of comnmnication from you, it is apparent that you are not interested in being a steward. In addition, although you have done good work as a Union Steward in past years, your behavior on the bargaining team in the last few months of bargaining demonstrated that you were not able to represent the interests of the majority of members - only a few, it seemed.

"According to Local 2831 's Constitution, the Chief Steward shall be responsible for the appointment and dismissal of stewards. In my capacity as Chief Steward, I have decided to remove you as a Union steward, effective today, April 1, 2009."

280. Also in April 2009, Baldwin exchanged letters with Allison Hassler, counsel for AFSCME, urging the Local to consent to the IS employees' departure from the

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AFSCME unit. The letter was copied, as was Hassler's, to Steiner, Medaglia, and Dotson, among others. Baldwin quoted portions ofHassler's letter, and then responded. For clarity, we italicize the Hassler quotations.

"The purpose of this email is to ensure AFSCME cannot claim ignorance to the issues when I start emailing news organizations highlighting this injustice and politicos to ask for legislative reforms giving union members more rights to leave incumbent unions in a [sic] easier more democratic fashion.

"I would like to extend to AFSCME one last opportunity to stop fighting our democratic and American rights to vote, withdraw your objection to our petition, and try instead to ·win the vote!

"Dear Jolm,

"You may remember me as the attornry who litigated the RC filed by your group last year. I have been asked by Jim Steiner and Ken Allen, Executive Director of Oregon AFSCME, Council 75 to respond to your email. Council 75 and Local 2831 are in agreement as to how to respond.

"SlwuldAdmin Pro file a unit clarification petition, Local 2831 will file objections. While you refer in you email to a "DaJJid Goliath"fight, UCs are 11011-adJJersarial hearings. It's a simple matter of presenting the facts to the ERB and allowing them to decide, based on the law, who has the greater co111111w1iD' of interest. This is not an emotional issue for us. No battle lines are being drawn.

"I agree, it is not an emotional decision for you and the people you work for at AF$CME [sic], it's a business decision. They are going to continue collecting our dues which will cover your costs while we fight this battle so they are out nothing for fighting us, and if they win they can continue ignoring us and make a nice profit in the long run.

"This is personal for us because while you have fought us and continue to fight us in our efforts to choose our representation in a democratic process as American workers, we still have yet to see sincere or earnest effort (in over two years) to address the concerns that LCIS has articulated. The result is thatAFSCME becomes nothing more than a body of corporate greed which is contradictory to the 'grassroots, worker-driven' organization AFSCME claims to be and what all unions are supposed to protect workers from.

"Without ever trying to understand much less resolve the underlying issues, and we gave you countless chances to do so, you chose to reduce this to an argument of law instead of allowing us to vote.

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"While RCs and UCs are two different types of actio11s, I am still confident that ERB will find that your group has a greater community of interest with the larger wall to wall unit than it does with Admin Pro. ERB prefers lmge1~ all inclusive bargaining units. But who you have a greater commw1ity of interest with is for the ERB to decide. No one is battling mryone else. The ERB will make a decision based on the law.

'Tm sure you have read the ALJs recommendation following the last RC, The LCIS group was acknowledged as a community of interest if not for the addition of the other classifications. When there is a clearly distinct community of interest, employee desire is given full weight. We will establish both.

"You're still only arguing on the merits of law, and continue to avoid democratic freedoms you are seeking to deprive us of. We have had to fight two years for what should have been a given, our right to vote. The bigger issue is that message you are sending to your members nationwide and the American public when you choose these tactics without regard for what is right, and what unions stand for. You will fight us and ignore us, but you have and still refuse to represent us.

"We are asking you to stop hiding behind legal statutes and simply do the right thing, let us vote!

"We will file objections for the greater good of all members of Local 2831. T71e larger a unit, the stronger it is in bargaining, in grievances and in day to dqy dealings with management. EJJen the ERB has niled that lmger bargaining units adJJance seJJeral imp01tant policies identified by the legislature. One is to establish equality of bargaining power between public employers and public employees. Larger units tend to better equalize bmgaining power. If your group leaJJes Local 2831, the entire Local will be weakened. You will gain no strength by moving to a smaller Local.

"In a smaller local we will gain a voice, our issues will he heard, we will be nearly 50% of that bargaining unit instead of a leveraged minority in Local 2831.

"I understand that a majority of your group would like to leaJJe Local 2831. HmveJJeJ~ the ERB has made it clear that the preference of the employee does not ove1Tule its preference for larger units. It has stated the desire of employees in a pmticular unit, standing alone is insufficient to overcome the preference for larger units. As with the RC )IOU filed, your desire to leave will not be a significant factor in a UC heming.

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"You obviously have not been communicating with or just don't care about the issues in the Local 2831 and you certainly do not care about us. The last session of bargaining was completely undermined by conflicting interests between Local 2831 general membership and the LCIS group. The ERB rules in favor of larger bargaining units where it makes sense to do so.

"A larger bargaining unit collectively bargaining for all members may experience issues ·where some member's interests will be traded off against the interests of other members. This is a limitation to the optimum size of a large bargaining unit. Upon reaching this size, the bargaining unit begins losing cohesion. This can result in losing the relatedness and the willingness to act in harmony.

"The difference in interests between the IS department and the larger AFSCME bargaining unit have become so contentious and counterproductive that the bargaining unit has lost cohesion and the i,villingness to act in harmony. The local AFSCME leadership has been openly hostile and on several occasions actively acted against the rights of IS employees, but you're not aware of this because you have never tried to

resolve or understand these issues. We only see you and your bosses when you intend to challenge our freedom of choice as American workers. The preference ERB has for larger unions vvill not supersede the rights of employees with a distinct community of interests.

"We deserve the right to choose our representation, not a lawyer, board or governing body .. .IN A TRUE UNION THE ULTIMATE DECISION MAKER IS THE WORKER. This is not about a union boss' pay check it is about fairness and a workers' choice that any American has, that being the ability to choose their destiny i,vith the right to vote.

"I understand that you feel Local 2831 has not been responsive enough to your needs, despite the fact that you received an additional 5% pay raise over the generous (for the current times) COLAs received by the rest of the unit. Additional!J', a compensation study will he pe1fonned and an even greater increase in pay may result.

"Again you argue points which have a history of issues you haven't even tried to understand which is indicative of your lack of caring until your dues are at risk. When minority groups (in a statistical or sociological sense) are fighting for recognition, dignity and equality of rights (meaning, in most cases, reasonable accommodation without undue hardship) the bargaining unit to which it belongs cannot claim proper representation. With such ease you fall back upon the end result and say, 'look what we did for you!', your insinuation that AFSCME delivered these things is

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quite frankly an insulting notion. LCIS, LCIS Management and County HR have all recognized since late 2007 the overwhelming need for compensation changes in LCIS if it is to continue functioning as a department, AFSCME is the ONLY group who has tried to delay or give away the LCIS departments [sic] needed compensation!

"I suggest that if you want more attention, get involved with the Local. Go to meetings, run for office, get on the bargaining team and make yourself heard. If you belieJJe the Local isjlmved,you can on[y fix it by getting involFed.

"You have no idea what you're saying. We will show a persistent effort on the part of the LCIS group to become 'involved' and an overwhelming counter force to ignore, undermine, or outright sabotage our efforts by the majority membership and their leadership. We will also show Council 75s [sic] complacency on the issues which seems redundant with the fact that you don't even know the issues as they exist today.

"You hm1e eJ1e1y right to talk to the Lane County Commissioners, to the press, to 'apply political/social pressure at the state and hopefully the national level'. We won't inte1fere with your right to do so, e11en though it may temporari[y disrupt Lane County employees. In the end, it will be ERB that will make the decision. Thry will not be persuaded by such tactic [sic].

"My email to you is not about ERB, it's about AFSCME and what it stands for as well as the unchecked power unions have over American workers who simply want the right to vote for representation. What the American public may not realize is the overwhelming challenge they will face if they want to leave an incumbent union, and the fact that AFSCME in this case is abusing its members for nothing more than dues. It is your responsibility to be accountable and actually represent your membership, and more importantly recognize when you're taking part in oppressing a minority work force which goes against the very reasons for your existence.

"You should be willing to let us have our vote and try to win the vote through the services you claim to provide, but instead you fight to avoid any vote in the first place.

"I hope that I have responded to all the points you made in your email. I hope that I have made the Council's and the Local's position clear."

"Again, the purpose of this email is to ensure AFSCME cannot claim ignorance to the issues when I start emailing news organizations

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highlighting this injustice and politicos to ask for legislative reforms giving union members more rights to leave incumbent unions in a [sic] easier more democratic fashion.

"This has been an expensive and grueling ordeal for all of us in our department. It should not have been so hard and taken two years for us to exercise the basic freedoms America was founded upon. I would like to extend to AFSCME one last opportunity to do the right thing and stop fighting our democratic and American rights to vote, withdraw your objection to our petition, and try instead to win the vote!" (Underlining and capitalization in original, italics added.)

281. In June 2009, in defending against the discipline of an employee for allegedly excessive personal use of the County e-mail system, AFSCME's counsel sought production of Baldwin's e-mails for a period of time that included the representation petition.20 AFSC:NlE officials believed, based on their own experience with Baldwin's e-mail practices, that Baldwin's use of e-mail had been extensive without objection from the County, and that this possible disparate treatment could bolster AFSCME's defense of the disciplined emi:iloyee. Baldwin viewed this as an attempt to seek information about his communications regarding the two petitions, and another example of AFSCME's hostility to IS employees.

282. In July 2009, IS Senior Programmer and Systems Analyst Robyn Repsher resigned from the AFSCME Executive Board. In her notice of resignation, Repsher stated, in part:

"* **I am officially resigning my e-board position for Information Services effective immediately. I am resigning for several reasons:

"• My work and family commitments are getting in the way of me meeting my obligations to the position

"• I can no longer try to mediate the impasse between IS Employees and our issue of adequate representation from AFSCME

"• vVhile I absolutely support the work unions do for employees, I feel that the IS Employees are ve1y different from the other AFSCME membership, and that the fracture between us and them cannot be resolved.

"• Other reasons not appropriate to put in an email

"I want to thank you all for your professionalism and kindness to me over the last year and half - I know it wasn't always easy with the contention

20The attorney also requested e-mail for three or four other County employees.

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between IS and AFSCME. I learned a lot about how unions work and I appreciate the time and energy you all put forth on behalf of the employees.

"Third - I will be testifying on behalf of the IS Employees at the upcoming ERB hearing on July 13th. I am doing this because I believe it is in the best interests of the IS employees.

"I hope there are no hard feelings because of this. I have the utmost respect for each of you and the hard work you do. I'm happy to meet and talk with any of you if you wish.

"Thank you for the opportunity you gave me on the AFSCME Executive . Board."

283. No IS employee has volunteered to replace Repsher on the AFSCME Executive Board.

284. At the hearing in this case, IS employees expressed their belief that their interests would be better served by the Association bargaining unit because (1) the IS employees would be a larger percentage of the Association unit,21 and would therefore have greater influence over the decisions of the union; (2) the IS employees are more comfortable with what they perceive to be the Association's more cooperative and lowkey bargaining approach with the County; (3) the IS employees believe that they have more in common with the members of the Association bargaining unit, which they characterize as being comprised mostly of professionals like themselves, than with the diverse AFSCME unit; and ( 4) AFSCME provides them with "no representation." The IS employees who appeared at the hearing in this case and RC-10-08 believe that they are aggrieved by AFSCME, and Baldwin testified that 65 of the 69 IS employees at issue responded to a survey stating that they wished to leave the AFSCME unit.

285. Ronald Hoskins, the County Personnel Analyst assigned to the IS Department, believes that the AFSCME-IS employee relationship has affected the workplace and that the IS employees feel disenfranchised.

CONCLUSIONS OF LAW


21The IS employees represent approximately ten percent of the AFSCME unit. If the petition were granted, the IS employees would constitute 42 percent of the Association unit.

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2. The positions at issue are not more appropriately included in the Association bargaining unit and the Petition is dismissed.

Standards for Decision

The Association seeks to transfer 69 employees in ten positions in the IS Department from the approximately 700 employee, 123 position, AFSCME collector bargaining unit to the 96 employee, 33 position, Association bargaining unit. Therefore, we must evaluate the two bargaining units and determine which is more appropriate. OAR 115-025-0005(6); Associatio11 of Oregon C01nctio11s Emplqyees v. State of Oregon, Department of Corrections, andAFSClvIE, Council 75, Case No. UC-25-99, 18 PECBR576, 584 (2000).

To determine the more appropriate unit, we consider the community of interest, wages, hours and other working conditions of the employees involved, the history of collective bargaining, and the desires of the employees. ORS 243.682( 1 )(a). Community of interest factors include "similarity of duties, skills, benefits, interchange or transfer of employees, promotional ladders," and common supervision among departments. OAR 115-025-0050(2).

This Board has discretion to determine how much weight to give each factor. OPEU v. Dept. Of Admin. Services, 173 Or App 432, 436, 22 P3d 251 (2001). Although the desires ·of employees is one of the factors this Board uses to determine appropriate bargaining units, it is rarely, if ever, the only determining factor. When there are no clearly distinct community of interest factors favoring a particular proposed unit, this Board does not give controlling weight to employees' preferences. Oregon AFSO\!fE Council 75 v. Ciry of Ontmio, Case No. RC-1-07, 22 PECBR 260, 275 (2008); Teamsters Local Union No. 223 v. Yamhill Counry a11d Yamhill Counry Emplqyees' Association, Case No. RC-14-07, 22 PECBR 459, 473 (2008). We also consider the policies and preferences developed by this Board in determining the more appropriate bargaining unit. Oregon W01*ers Union v. State of Oregon, Department of Transportation a11d Service Emplqyees International U11ion Local 503, Oregon Public Emplqyees Union, Case No. RC-26-05, 21PECBR873 (2007).

We apply these principles to the facts at hand.

Overview

The primary function of the IS Department is to provide computer services to all County departments. The IS positions at issue are all of the non-clerical, non-supervisory positions in the IS Department, namely, Database Administrator, Information Services Analyst, Senior Information Services Analyst, Information Services Technician, Programmer Analyst 1, Progranuner Analyst 2, Senior Programmer and Systems Analyst,

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System Network Analyst 1, System Network Analyst 2, and Senior System Network Analyst. These positions, along with five IS accounting and support staff positions, are currently in the AFSCME bargaining unit.

The primary function of the Department of Public Works is to build and maintain County roads, paths, bridges, parks, and related infrastructure and equipment. The positiornfrepresented by the Association include: Engineers; Lead Workers; Surveyors; and Park, Shop, and Bridge Supervisors. The Department also includes mechanics and road workers in the Road Maintenance and Fleet Divisions represented by the Lane County Public Works Association Local 626, and approximately 100 planning, waste specialist, and other technical and support staff employees (in the Engineering and Construction Services, Land Management, and Waste Management Divisions) represented by the Association.

The rest of the AFSCME bargaining unit positions are distributed throughout most of the remaining County departments, excluding those employees represented

· by: (1) the AFSCME nurses' local; (2) Lane County Peace Officers Association (strike-prohibited deputy and correction sheriffs and juvenile detention workers); (3) Federation of Parole and Probation Officers (strike-prohibited parole and probation officers); and ( 4) the Prosecuting Attorney's Association (deputy district attorneys).

Community of Interest and Similarity of Duties and Skills

Public Works Department Employees

The duties of the Public Works employees include surveying for, designing, engineering, installing, and maintaining the County infrastnicture (from lights and water service to bridge parts and pavement); maintaining the equipment needed for those functions; clearing brush and moving equipment to aid in these functions; and securing ownership or easement rights to real property to be used for, or in support of, that infrastructure. At least 21 of the 33 Association positions involve a significant amount of work outdoors in the field. The duty and skill level of the positions range from the more physical or entry-level work of Lead Worker - Parks and Engineering Aide, to the more technical and highly specialized work of Senior Engineering Associate and Senior Surveyor, with many of the positions requiring a high level of specialized expertise and independence in performing work.

IS Employees

The duties of the IS employees at issue include maintaining, upgrading, diagnosing, and repairing computer equipment and software; and designing, building, and maintaining computer networks, programs, and databases. Most of the IS employees

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provide computer services, directly or indirectly, to all County departments. The duties and sldlls range from those necessary to perform the relatively uncomplicated computer hardware and software tasks of the entry-level Programmer Analyst to the creation of complex computer systems and writing sophisticated software of the Senior Programmer and Systems Analyst. Many of the positions require a high level of specialized expertise and independence in performing work. Many of these employees travel to County offices outside of the IS Department to perform computer related work.

AFSCME Non-IS Employees

Because AFSCME represents a collector bargaining unit,22 the duties and sldlls of the rest of the AFSCME unit employees vary widely. They work throughout other County departments and offices, including the Department of Public Works and the IS Department. AFSCME-represented positions include Secretaries and Planners, Custodians and Mental Health Specialists. The duties range from relatively simple physical work to sophisticated and individualized work in specialized fields such as accounting, mental health, building inspection, and nutrition. Many AFSCME positions require a high level of specialized expertise and independence in performing work. However, the percentage of employees worldng at the higher levels of specialization, expertise, and independence is significantly less than either the employees in the Association unit or the IS employees at issue.

The Association argues:

"The * * * IS positions at issue are 'focused on the same areas of work' as the [Public Works] Administrative Professionals: engineering, technology, and advance data management. They all involve system and process analysis, and a system approach to development and problem-solving. They are all considered 'professional level'; all require specialized education, training and/or expertise associated directly or indirectly with data technology; and the employee is generally required to exercise a substantial degree of professional independence."

It is correct that the IS employees at issue, and many of the current Association bargaining unit employees, specialize in a technical field. Contrary to the Association's assertion, however, the work of many of the Association-represented employees is not fairly described as "engineering, technology, and advance data management." The work

22A collector bargaining unit is one which contains all employees of a single employer who are not members of other bargaining units. Members of a collector bargaining unit typically have diverse duties, working conditions and salaries. Oregon Public Employees Union, SEIU, Local 503 v. Erecutive Department State of Oregon, Case No. UC-59-87, 10 PECBR 456 ( 1988).

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of the Public Works Lead Mechanic, Lead Electrician, Nuisance Abatement Specialist, Park Planner, Parks Supervisor, Road Maintenance Supervisor, Safety Coordinator, Shop Supervisor, Sign Shop Supervisor, and Lead Worker - Parks do not fall within that description. Nor is the Association correct in stating that the work of all Association-represented employees involves "system and process analysis, and a system approach to development and problem-solving." In addition, the Association is incorrect in claiming that Association bargaining unit positions "all require specialized education, training and/or expertise associated directly or indirectly with data technology." The record does show that the IS positions the Association proposes to add to its bargaining unit perform highly specialized work and exercise at least a moderate degree of independence in prioritizing and resolving the tasks required by their positions.

Education, Overtime Exemption, and Certification

Of the 33 positions in the current Association bargaining unit, 13 require a minimum educational background consisting of completion of the twelfth grade or its equivalent, and 14 require a minimum of a bachelor's degree. 23 Twenty-two positions are exempt from paid overtime. Many positions require a CDL and related endorsements; ten positions require other certification or licensing such as an Engineer's License, Electricians License, or Spray License.

Of the ten IS positions at issue, three require a minimum of an associate's degree or an equivalent amount of experience and training; seven require a bachelor's degree, or an equivalent amount of experience and training. Seven positions are exempt from paid overtime. None of these IS positions require advanced degrees or state licensing or certifications except that nine of the ten must be able to pass a background check to use LEDS. However, these IS employees routinely obtain various certifications from software companies such as Microsoft.

Examining 22 County-selected 'random' non-IS AFSCME positions, we note that nine require a minimum educational background consisting of completion of the twelfth grade or its equivalent; two require an associate's degree; seven require a bachelor's degree; and four require at least a master's degree. Thirty-seven of the 113 non-IS AFSCME positions are exempt from paid overtime. Eleven of the positions require some sort of state licensing or certification, in addition to access to LEDS, and the ability to be deputized.

23The educational and licensing requirements for the sb: remaining Department of Public Works positions at issue do not appear in the record.

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AB noted above, the proposed bargaining unit would contain positions ·with a wide range of education and experience requirements. Some positions require only the completion of the twelfth grade; some an associate's degree or two years of college courses, while others require a bachelor's degree and further specialized education and training. The proposed new bargaining unit would also include both overtime-exempt and overtime-eligible employees. The positions also vary widely in whether and what certifications are required. The Association is not correct in asserting that "all require specialized education, training and/or expertise associated directly or indirectly with data technology."

The IS employees at issue and the employees in the present Association bargaining unit do not work in positions with related skills. Instead, they are divided into different specialties of both highly specialized sldlls, such as computer technology, engineering, surveying, and mechanics, and far less specialized sldlls such as those required for the Lead Worker position. They perform different job duties and possess sldlls unique to their type of work. Employees in the proposed unit do not work in a separate, self-integrated work unit or department. In these respects, the petitioned-for positions are no different than many positions that would remain in the AFSCME unit, such as Accountant, CadastraVGIS Technician, Mental Health Specialist, Planner, or Special Waste Specialist.

Benefits

The parties have identified no relevant material differences in the benefits provided to the respective bargaining units.

Employee Interchange or Transfers

Occupational mobility for the IS and Public Works Association employees in the proposed bargaining unit is generally limited by their specialties. There is no evidence that technical positions in the IS or Public Works Departments are filled by transfers from other departments, nor do these employees transfer to other County positions. This pattern of occupational mobility is no different from those highly specialized or technical positions which would remain in the AFSCME unit.

Promotions and Common Supervision

The promotion path for each position is within its department, specialty, or division. The IS and Public Works Departments have no overlapping promotion path

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or supervJs1on except above the Department level.24 The Land Management and Transportation Planning and Traffic Divisions of the Public Works Department have their own specialized sections, such as Planning, Surveying, Building, and Compliance, with chains of supervision up to the level of division managers, who in turn report to the Department head. Because there are already some non-IS AFSCME-represented employees working at the Public Works Department, as well as employees represented by the Association and the Lane County Public Works Association, some Public Works sections have a single supervisor who may oversee the work of employees represented by more than one union. If the petition is granted, an IS Department supervisor would also oversee employees represented by more than one union.

Wages, Hours, and Other Working Conditions

Wages

Salaries vary widely among the Association's Public Works employees, the IS positions at issue, and the rest of the AFSCME bargaining unit members, The IS positions at issue are at the high end of the salary schedules for both the AFSCME and Association bargaining units. With the recent IS employee pay increase, the seven highest paid positions in the AFSCME unit are IS positions. Were we to grant the petition, the five highest paid positions, and seven of the eight highest paid positions in the new bargaining unit would be IS positions.

The annual salaries for the IS Department employees at issue range from $35,399-$48,922 (Programmer Analyst 1) and $36,213-$50,110 (System Network Analyst 1) to $53, 7 68-$ 7 4,464 (Database Administrator, Senior Information Services Analyst, Senior Programmer and Systems Analyst, and Senior Systems Network Analyst).

The annual salaries for the Public Works Department employees in the current Association unit range from $20,664-$58,593 (Engineering Aide), $27,102-$37,585 (Engineering Assistant), and $30,659-$42,473 (Engineering Technician 1), to $47,819-$66,331 (Senior Surveyor) $45,510-$63,066 (Senior Real Property Officer and Senior EngineeringAssociate), $43,326-$60,070 (Waste Management Tech Specialist), and $42,266-$58, 594 (Associate Surveyor and Parks Superintendent).

24While eight IS employees are stationed at the Delta Center, they are not listed on the Public Works organization charts and there is no evidence that they have a different reporting relationship than other IS employees.

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As AFSCME notes, 34 AFSCME non-IS unit employees earn more than $50,000 per year, while nine of the 96 employees in the current Association unit earn less than $50,000 per year. While the petitioned-for employees are at the upper end of AFSCME's bargaining unit wage scale, the proposed unit would not include all highly paid positions in theAFSCME unit. A significant number of highly paid professional, paraprofessional, and technical workers would remain in the AFSCME unit: Accountant (maximum wage $55,994 per year), Accounting Analyst (maximum wage $52,042 per year), Senior Mental Health Specialist (1mudmum wage $55,994 per year), Senior Program Services Coordinator (maximum wage $58,802 per year), Public Health Educator (maximum wage $50, 752 per year), Sanitarian 2 (maximum wage $53,310 per year), Special Waste Specialist (ma."Ximum wage $52,042 per year), and Youth Advocacy Coordinator (maximum wage $52,042 per year).

The Association argues that the concentration of IS employees at the top of the AFSCME wage scale demonstrates their lack of a community of interest with the AFSCME unit. We find this argument unpersuasive. If this Petition were granted, the IS employees would be concentrated at the top of the wage scale of the new unit as well.

Hours

Association employees, IS employees at issue, and non-IS AFSCME employees include those who ·work from 8:00 a.m. to 5:00 p.m., five days per week and others who work four, ten-hour shifts. All three groups also include employees who are on call outside of work hours. We conclude that any differences in the worl<lng hours of employees are not material to resolution of this Petition.

Other W orl<lng Conditions

The Association bargaining unit employees work at offices and shop settings in the Delta Complex; most of them also do extensive work in the field, sometimes in inclement weather. Many perform significant physical work such as clearing brush or moving and operating survey equipment and some vehicles or machinery. They are exposed to the hazards of worl<lng outdoors, worldng alongside heavy mechanical equipment, worldng with pesticides, and working around vehicle traffic. Many, if not most, of the current Association employees spend a significant amount of time at current or future constntction sites. Others, such as the Sign Shop Supervisor, work in a shop setting. Communication ·with the public is a required skill of many Public Works positions. There is no evidence that any Association bargaining unit employees have access to secure information of the importance of LEDS or other law enforcement records, or similarly sensitive records or data.

IS employees work exclusively in office settings. Most of the petitioned-for IS employees work in offices with other AFSCME-represented employees sometimes at the

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desks of other AFSCME unit bargaining members, or in a secure office setting where they maintain computer software and hardware. Some visit the offices of non-IS employees to install, maintain, or repair computer equipment. Most IS employees have access to secure, sensitive, and confidential material such as police records which require them to pass background checks and maintain LEDS certification.

There are a wide variety of positions in the non-IS portion of the AFSCME unit. There is no evidence that any of these employees work in the field, and most job titles suggest that their work is performed in office settings. It appears from the job titles that some AFSCME unit employees have access to confidential information, including positions such as Accountant, Justice Court Clerk, Mental Health Specialist, and Juvenile Counselor.

History of Collective Bargaining

IS employees have been a part of the AFSCME unit for many years. The Association unit was created under a prior labor organization in 1983. Teamsters Local 57 v. Laue County Department of Public Works and AFSCME Local 2831, Case No. C-199-82, 7 PECBR 5763 (1983). Aside from the recent history between the IS employees and AFSCME addressed below, nothing in the history of collective bargaining suggests that the Association unit is a more appropriate unit for the IS employees at issue than the AFSCME unit.

Analysis

The IS employees have a greater community of interest with the employees in the AFSClv1E bargaining unit than with those in the Association bargaining unit.

Because the Association seeks to transfer the IS employees from an existing unit to another existing unit, this Petition raises no initial concerns regarding unit fragmentation. Chemeketa Community College Education Association v. Chemeketa Community College and Chemeketa Community College ClassifiedEmpl1!JeesAssociatio11, Case No. UC-9-99, 18 PECBR 493, 507-8 (2000). However, the Association cites no precedent from this Board in which a similar transfer of employees took place, and we can find none. In Chemeketa Community College, this Board transferred a unique gallery curator position from the classified unit to the faculty unit where the faculty positions were similarly independent of supervision, reported to the same supervisor, was located next to some faculty classrooms, and the position's work was less like the instructional support provided by the other positions in the classified unit and more like the work of faculty. In Oregon Nurses Association v. Multnomah County and AFSClvIE Council 75, Local 88, Case No. UC-66-94, 16 PECBR 6 (1995), this Board denied a petition to move

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nutritionists from a general county bargaining unit to the nurses' bargaining unit. We noted that although the nutritionists and nurses did the same work in the same location 'vith the same line of supervision, and had similar licensing and education requirements, they did not share a functional relationship any stronger than the one the nutritionists shared with the other employees with whom they worked.

Nor is it appropriate to place the positions at issue in the Association unit on the grounds that the unit is a specialized one. We have explained that:

"[a ]s a general rule, we will clarify a position as being more appropriate in a specialized unit rather than a general unit when: ( 1) the classification exists only in that portion of the employer's operation which is represented by the specialized unit, and (2) the position has a significant functional relationship with the positions already in the specialized unit." Association of Engineering Emplqyes of Oregon 11. Department of Transportation Highway Division, State of Oregon and Oregon Public Employes Union, Local 502, SEIU, 7 PECBR 6108, 6116 (1983), aff d 72 Or App 371, 695 P2d 961 (1985). (Emphasis in original.)

Accordingly, in Hillcrest-McLaren Education Association/OEA!NEA v. Hillcrest and Mclaren Schools and Oregon Public Emplqyees Union, Case No. UC-38-89, 12 PECBR 1 ( 1990), this Board held it was not appropriate to transfer some non-teaching employees from a collector unit to a teachers' bargaining unit.

We have previously considered a situation somewhat similar to the one presented here. In Portland Association of Teachers v. Portland School District No. 1 Multnomah County and Portland Federation of Teachers and Classified Emplqyees, AFT Local 111, AFL-CIO, Case Nos. UC-2,3,8 and 9-86, 9 PECBR 8976 (1986), this Board transferred overtime-exempt high-salaried specialists to a teachers' bargaining unit. Before the transfer, the specialists were part of a bargaining unit in which the rest of the positions were lower paid, hourly, overtime eligible, blue collar in nature, and had different lines of supervision. In addition, unlike the rest of the members of the bargaining unit, specialists worked a school year schedule ·with teachers, and were required to demonstrate educational achievement and maintain credentials and accreditation in their professions.

The facts of this case are readily distinguishable from those in Portland School Dist1ict. Here, both the present Association unit, the AFSCME unit, and the proposed unit all include (or would include) a mL'\: of highly paid and educated, professional, overtime exempt, credentialed, and certified professionals and paraprofessionals along with lower paid and educated, overtime eligible, uncredentialed employees.

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The employees in the proposed bargaining unit do not have a community of interest sufficiently distinct from the AFSCME bargaining unit employees to render the proposed unit more appropriate than the AFSCME bargaining unit. The Association argues, however, that the desires of the employees, and their treatment by AFSCME, nevertheless warrant their transfer to a new bargaining unit. We turn to that issue.

Employee Desires and AFSCME Representation of IS Employees

IS employee activist Baldwin testified without dispute that a survey of the IS employees at issue indicated that 65 of the 69 respondents wished to be represented by the Association, and a significant number of the petitioned-for employees signed cards indicating their desire to be represented by the Association. Most of the IS employees who testified at hearing dislike AFSCME and are ang1y at the quality and nature of the representation AFSCME has provided them. The Association argues that the petitioned-for employees should be placed in a different bargaining unit in part because they believe AFSCME did not respond appropriately to their demands for a substantial wage increase. According to the Association, this constitutes a compelling reason for IS employees to be placed in a different bargaining unit.

We have often considered and rejected employees' dissatisfaction with the incumbent union's representation as the single, decisive factor in forming a bargaining unit, even when the dissatisfaction arises from a union's alleged failure to properly represent the disgruntled employees. See Revenue Heari11g Officers Association v. Oregon Department of ReJJenue a11d Oregon Public Empll{)'es Union Local 503, Case No. C-155-83, 7 PECBR 6086 (1983);Associatio11 of Public Utility Professional Empll{)'ees v. Public Utility . Co111111issio11er a11d Oregon Public Empll{)'eS Union, Case No. C-138-81, 6 PECBR 5153 ( l 982);Associatio11 of Public Empll{)'ees v. Oregon State System of Higher Education and Oregon Public Empll{)'ees Union, Local 503, SEIU, Case No. RC-113-87, 10 PECBR 883, 892 (1988); Oregon Workers Union v. State of Oregon, Department of Transportation and Service Empll{Yees International Unio11 Local 503, Oregon Public Empll{Yees Union, Case No. RC-26-05, 21 PECBR 873, 889 (2007); Association of State Professional Empll{Yees JJ.

Department of ReJJenue and Oregon Public Empll{)'ees Union, Case No. RC-55-95, 16 PECBR 615, 624 (1996).25

25In the prior case involving these parties, RC-10-08, this Board reviewed the IS employees' desire for a different bargaining unit based in part upon AFSCME's lack of responsiveness to their wage demands. Because the proposed bargaining unit employees did not have a community of interest sufficiently distinct from the AFSCME bargaining unit employees, we refused to give this factor controlling weight. 23 PECBR at 31.

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In Teamsters Local Union No. 223 v. Yamhill County and Yamhill County Employees' Association, Case No. RC-14-07, 22 PECBR 459, 473 (2008), we explained:

"In large and diverse social organizations, particularly regarding employment relationships, it is inevitable that some members of the social group feel dissatisfied or believe their interests have been neglected by others."

For this reason, we have never given controlling weight to employees' desires absent distinct community of interest factors.

According to many IS employees, however, AFSCME has provided them not just with ineffective representation, but with "no representation." In particular, IS ,employees assert that AFSCME did not act promptly or properly to secure an adequate wage increase for them. We disagree.

AFSCME chose to pursue IS employees' wage increase in bargaining for a successor contract rather than in a separate sala1y reclassification proceeding. AFSCME' s decision to do so was consistent with its need to represent all bargaining unit members. AFSCME considered the effect on the entire bargaining unit of an IS-employee only wage increase, and reasonably chose to take a different position on that wage increase to preserve medical benefits for all bargaining unit members.

IS employees ultimately benefitted from these decisions. Had AFSCME settled the contract under the terms demanded by the IS employees, IS employees might have obtained less-higher wages but decreased medical benefits. Even if AFSCME's bargaining strategy resulted in a smaller wage increase for IS employees than they wanted (or deserved), AFSCME's conduct does not provide a compelling reason, absent other community of interest factors, to put the IS employees in the Association bargaining unit.

The Association also alleges that the actions of AFSCME's leaders denied IS employees a voice in AFSCME's decisions. In particular, the Association asserts that AFSCME unfairly rejected Karr's candidacy for the Executive Board, removed Stuart as a steward, and refused to allow a motion by IS employee Sullen to vote on a County bargaining offer. In addition, the Association asserts that other AFSCME bargaining unit employees spoke disparagingly about IS employees, creating an atmosphere of hostility.

As noted above, the dissatisfaction IS employees feel is an unfortunate but common occurrence in large organizations where the minority often feels that the majority ignores its interests. There is no guarantee that placing IS employees in the

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Association bargaining unit would resolve these problems. IS employees would share virtually no community of interest factors with Association bargaining unit members. Under these conditions, conflicts could arise between the interests of the IS employees and those of the other bargaining unit members. Accordingly, we are not persuaded that transferring the IS employees to the Association bargaining unit will address their concerns about adequate representation.

CONCLUSION

The Association failed to demonstrate that any statuto1y factors, other than the desires of the employees at issue, support transferring the IS employees to the Association bargaining unit. We conclude that this reason alone is insufficient to justify such an action. We will dismiss the Petition.

DATED this / 2- day of January 2011.




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OF THE

STATE OF OREGON

Case No. UC-022-10

(AMENDMENT OF CERTIFICATION OR RECOGNITION)

LAKE OSWEGO MUNICIPAL EMPLOYEES) ASSOCIATION/AFSCME COUNCIL 75, )

) Petitioners, )

) v. )

) CITY OF LAKE OSWEGO, )

) Respondent. )

~~~~~~~~~~~~~~~~)

ORDER AMENDING CERTIFICATION OF EXCLUSIVE BARGAINING REPRESENTATIVE

The Lake Oswego Municipal Employees Association (Association) is the certified representative for a bargaining unit of classified employees of the City of Lake Oswego (City). 1 On November 22, 2010,2 AFSCME Council 75 (AFSCME) petitioned under OAR 115-025-0008 to amend the Association's certification to reflect its affiliation with AFSCME. The bargaining unit consists of:

"All regular employees of the City of Lake Oswego employed in a position budgeted by the City, excluding all classifications represented by other bargaining units, supervisory or confidential employees, interns and persons employed as temporary, on-call or contract employees."

'AFSCME asserts the Association was certified in 1982. This Board has no record of the 1982 certification. However, on November 4, 1986, in Nichols and Empll!Jles of City of Lake Oswego v. Lake Oswego lvfuuicipal Employees Association, Case No. DC-59-86, the Elections Coordinator certified the Association as exclusive representative. Later, in Lake Os1vego 1\!Iunicipal Employees' Association v. City of Lake Oswego, Case No. UC-32-94, the Elections Coordinator issued a certification clarifying the bargaining unit.

2 All dates are 2010 unless stated othe1wise.

This Board may amend a certification to reflect a change in affiliation of the exclusive bargaining representative so long as no question of representation exists. OAR 115-025-0008. No question of representation exists if the petitioner proves that "the affiliation election was conducted in accordance with at least minimal due process." Id.; Willamette Education Service DistJict Emplqyees Association and Oregon School Employees Association, Chapter 95 v. Willamette Education Service Dist1ict, Case No. UC-31-03, 20 PECBR 466 (2003).

Documents and other information attached to AFSCME's petition outline the Association's affiliation process. Prior to the affiliation process described below, the Association was an unaffiliated labor organization.

The Association holds at least two regular general membership meetings a year. It also holds additional meetings as requested by the officers or membership. In the Spring of 2010, the Association officers began discussing a possible affiliation with AFSCME. On May 17, the Association executive board met with three AFSCME representatives to obtain information about affiliation. The proposed affiliation was discussed at a general membership meeting in August 2010, and again at meetings on September 29, October 27 and October 28. At the September 29 and October 27 meetings, three AFSCME representatives explained the key points of affiliation and answered any questions. One AFSCME representative attended the October 28 meeting.

The Association routinely sends meeting notices to bargaining unit members via e-mail, and it posts the information on its website. In this case, the Association sent an e-mail to its members about the October 28 meeting and the November 10 secret ballot election on affiliation, and on October 12, it mailed a notice to the entire membership through the U.S. Postal Service. The petition included copies of various notices the Association sent to its members regarding the meetings, a notice titled "Affiliation Information" that the Association mailed to its members, and a copy of the ballot.

The election was conducted on November 10. The bargaining unit consists of approximately 165 employees. The results of the election were 67 votes in favor of affiliation with AFSCME and 50 votes against. The Association posted the results of the election on its website.

Under AFSCME's operating policies, the Association will continue to exist with its own set of officers and its own local finances, and the Association will continue to be primarily responsible for contract bargaining and contract maintenance.

The Elections Coordinator served the Petition on the City on November 23, 2010. On November 29 and 30, the City posted notices of the pending petition in 13 locations around the City. Objections were due by December 14. None were filed.

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We conclude that AFSCME and the Association are labor organizations; that the affiliation election was conducted in compliance with at least minimum due process requirements; and that a majority of votes cast by the Association's bargaining unit members supported affiliation with AFSCME.

Based on the foregoing, we conclude that affiliation is appropriate, and accordingly, we will grant the Petition.

ORDER

The Lake Oswego Municipal Employees Association's certification is amended to reflect the Association's affiliation with AFSCME Council 7 5.




-3-


OF THE

STATE OF OREGON

Case No. UP-11-09


SEIU LOCAL 503, OPEU,

Complainant,

v.

STATE OF OREGON, DEPARTMENT OF TRANSPORTATION,

Respondent.

) ) ) ) ) ) ) ) ) ) )

~~~~~~~~~~~~~-)

FINDINGS AND ORDER ON COMPLAINANT'S PETITION FOR REPRESENTATION COSTS

On October 18, 2010,1 this Board issued an Order which held that the State of Oregon, Department of Transportation (ODOT) violated ORS 243.672( 1 )(a) when it disciplined a member of the SEIU Local 503, OPEU (Union) bargaining unit. 23 PECBR 939. On November 8, the Union petitioned for representation costs. On November 24, ODOT objected to the petition.

Pursuant to ORS 243.676(2)(d) and OAR 115-035-0055, this Board finds:

1. The Union filed a timely petition for representation costs and ODOT filed timely objections to the petition.

2. The Union is the prevailing party.

'Unless otherwise stated, all dates are in 2010.

-1-

3 The Union asserts that it incurred representation costs of $7,650. According to the affidavit of counsel, this represents 45 hours valued at $170 per hour.

4. ODOT failed to file a timely answer to the complaint. Under OAR 115-035-0035, it was therefore precluded from cross-examining Union witnesses or presenting its own witnesses. As a consequence, the hearing on this matter took less than a full day.

Both the number of hours devoted to the case and the requested hourly rate are reasonable. Blue Mountain Faculty Associatio11/0rego11 Education Association/NBA and Lamiman v. Blue i\!Iountain Community College, Case No. UP-22-05, 21 PECBR 853, 855 (2007) (Rep. Cost Order)(cases typically take an average of 45-50 hours for each day of hearing); Dallas Police Employees Association v. City of Dallas, Case No. UP-33-08, 23 PECBR 510, 511 (2010) (Rep. Cost Order) ($165-170 per hour is an average rate),,

5. ODOT disciplined a Union bargaining unit member by reducing his salary by one step for one month. ODOT relied on two separate incidents as the basis for the discipline. First, the employee, acting as a Union steward, e-mailed a copy of a tape recording of a grievance meeting to three private attorneys, seeldng legal advice on behalf of the Union. We determined that the employee was engaged in protected union activity and that ODOT violated ORS 243.672( 1 )(a) when it disciplined him for that activity.

The second incident occurred at a joint Labor-Management Committee meeting. The Union steward requested an ODOT manager's resignation. Although we found the· employee's conduct rude and ill-considered, and thus not activity we would encourage, we nevertheless determined that the conduct was protected union activity. We concluded that ODOT violated ORS 243.672(l)(a) when it disciplined the employee for that conduct.

An average award is approximately one-third of a prevailing party's reasonable representation costs, up to the $3,500 cap. Benton County Deputy Sheriffs Association v. Benton County, Case No. UP-24-06, 22 PECBR 46, 47 (2007) (Rep. Cost Order); OAR 115-035-0055(l)(a). We adjust that percentage up or down based on various policy considerations described in our rules and cases. We generally adjust the award upward when an employer violates subsection (l)(a) because the employer's conduct strikes at core rights protected by the Public Employee Collective Bargaining Act (PECBA). Service Employees International Union, Local 503, Oregon Public Employees Union v. State of Oregon, Judicial Department, Case No. UP-3-04, 21 PECBR 179, 181 (2005) (Rep. Cost Order). We will do so here.

-2-

Having considered the purposes and policies of the PECBA, our awards in prior cases, and the reasonable cost of services rendered, this Board awards the Union representation costs in the amount of $2,800.

ORDER

ODOT will remit $2,800 to the Union within 30 days of the date of this Order.

DATED this J3_ day of January, 2011.

I ~-/ ,~./, :JL~~-,




-3-


OF THE

STATE OF OREGON

Case No. RC-18-09

(REPRESENTATION PETITION)

MARION COUNTY DISTRICT ATTORNEY INVESTIGATOR ASSOCIATION,

Petitioner,

v.

MARION COUNTY, Respondent,

and

) ) ) ) ) ) ) ) ) ) ) )

SERVICE EMPLOYEES INTERNATIONAL ) UNION LOCAL 503, OREGON PUBLIC ) EMPLOYEES UNION, )

Incumbent. ) ~~~~~~~~~~~~~~-)


The parties waived oral argument on the County's objections to a Recommended Order issued by Administrative Law Judge (ALJ) Wendy L. Greenwald on June 22, 2010, after a hearing held before ALJ B. Carlton Grew on October 19 and November 23, 2009, in Salem, Oregon. The record closed on February 16, 2010, following receipt of the parties' post-hearing briefs.

Marl<.J. Makler, Attorney at Law, Garrettson Gallagher Fenrich &Makler, PC, Portland, Oregon, represented the Petitioner.

Jeffrey P. Chicoine, Attorney at Law, Miller Nash LLP, Portland, Oregon, represented the Respondent.

Joel Rosenblit, Attorney at Law, Service Employees International Union Local 503, Oregon Public Employees Union, Salem, Oregon, represented the Incumbent.

On May 12, 2009, the Marion County District Attorney Investigator Association (Association) filed a petition for certification of a representative under OAR 115-025-0000(l)(a), or in the alternative for unit clarification under OAR 115-025-0005(3). The Association sought to represent a bargaining unit of

"[a]ll employees employed by the Marion County District Attorney's Office as Criminal Investigators, who are certified by DPSST as ORS Chapter 181 Police Officers for the State of Oregon, and who are employees considered prohibited from striking within the definition of ORS 243.736, excluding confidential or supervisory employees within the definition of the PECBA."

By letter dated May 13, 2009, the Elections Coordinator notified the Association that the petition appeared to be untimely since the positions at issue were currently in the bargaining unit represented by the Service Employees International Union Local 503, Oregon Public Employees Union (SEIU), and were covered by a collective bargaining agreement. The Elections Coordinator told the Association that she intended to request that this Board dismiss the petition as untimely, "[u]nless you can present clear and convincing evidence" why the petition should not be dismissed. By letter dated May 19, 2009, the Association responded that a contract bar did not apply to the petition because the positions at issue were strike-prohibited police officers specifically excluded under the terms of the SEIU agreement. On May 21, 2009, the Elections Coordinator served the petition.

On June 8, 2009, Marion County (County) and SEIU filed timely objections to the petition asserting that: 1) the Association did not have standing to file a unit clarification petition under OAR 115-025-0005(3); 2) the representation petition was subject to a contract bar under OAR 115-025-0015(2); 3) the petitioned-for group of employees was not an appropriate stand-alone bargaining unit; and 4) granting the petition would further fragment the County's workforce.

The issues are:

1) Is the petition timely ?

2) Does the petition propose an appropriate bargaining unit under ORS 243.682(1)?

-2-

RULINGS

1. The ALJ correctly dismissed the Association's unit clarification petition. A petition for clarification of a bargaining unit "may be filed by the recognized or certified representative or by the public employer when no question of representation exists, subject to the other requirements of this rule." OAR 115-025-0005(1). Under OAR 115-025-0005(3), a unit clarification petition may be filed at any time when the issue raised "is whether certain positions are or are not included in a bargaining unit under the express terms of a certification description or collective bargaining agreement * * *."

The Association has no standing to file a unit clarification petition under subsection (3) because it is neither the recognized or certified representative nor a public employer. In addition, by seeldng to create a new bargaining unit, the petition presents a question of representation. Welches School Dist. v. Welches Education Assn., 116 Or App 564, 568, 842 P2d 437 (1992) (a question of representation, not unit clarification, exists when a petition proposes formation of a new bargaining unit). The appropriate method for resolving a question of representation is through the process mandated by ORS 243.682 and OAR 115-025-0000.1

2. TheALJ also correctly ruled that evidence the Association sought to present related to the supervisory status of the criminal investigations supervisor is not relevant to this proceeding. OAR 115-025-0050(3) provides that "questions concerning public employee status shall not be decided in proceedings to determine the appropriate bargaining unit for a representation election unless the results of such an election cannot be certified without the resolution of.such questions." Since only one of the four positions at issue here is potentially a supervisor, the results of an election could be certified without resolution of whether the position is a public employee vvithin the meaning of the Public Employee Collective Bargaining Act (PECBA).

3. The remaining rulings of the ALJ have been reviewed and are correct.

FINDINGS OF FACT

1. The County, a public employer, employs approximately 1,500 full-time and part -time employees. Around 1, 100 of these employees are currently represented by five different labor unions, as follows:

'On June 19, 2009, the Association notified theALJ that it did not object to the dismissal of the unit clarification portion of the petition.

"3 "

(a) Marion County Law Enforcement Association (MCEA) represents approximately 221 employees in the Sheriff's Office, excluding the employees in the parole and probation division;

(b) Federation of Parole and Probation Officers (FOPPO) represents approximately 41 Sheriff's Office deputies, who perform parole and probation duties;

(c) Oregon Nurses Association (ONA) represents approximately 22 registered nurses in the Health Department;

(d) Marion County Juvenile Employees Association (MCJEA) represents approximately 35 juvenile detention workers in the Juvenile Department; and

(e) SEIU, the County-wide collector unit, represents approximately 766 employees in different classifications who are not included in other bargaining units.

2. The SEIU unit has been the collector unit at the County since at least 1977 .2 The description of the SEIU unit has changed over time. Thel 995-98 SEIU Collective Bargaining Agreement with the County provided that SEIU represented two bargaining units, one general unit of strike-permitted employees and a second unit of strike-prohibited group workers in the Juvenile Department. On February 14, 2002, this Board issued an order designating the two bargaining units represented by SEIU as:

"Strike-Permitted Bargaining Unit: All regular employees of Marion County except supervisory and confidential employees, or employees represented by other labor organizations or employees considered prohibited from strildng within the definition of ORS 243. 736.

"Strike-Prohibited Bargaining Unit: All regular employees of Marion County Juvenile Department who are classified as Group Workers l, 2 or 3 or work as 'guards' within the definition of ORS 243.736 except superviso1y and confidential employees or employees represented by other labor organizations. "3

2The SEIU unit was originally represented by the Marion County Employees Association (MCEA), who later affiliated with the Oregon State Employees Association, which was the predecessor for the Oregon Public Employees Union, which was the predecessor for SEIU. We refer to this unit as the SEIU unit throughout this decision.

3Sen>ice Empltryees Iutemational Union Local 503, Oregon Public Empll!Jlees Union v. Marion Coun91, Case No. UC-45-01, 19 PECBR 653 (2002).

-4-

After this Board's certification, these bargaining unit descriptions were incorporated into the recognition clause of SEIU's subsequent collective bargaining agreement. That agreement, which expired in June 2008, provided that the County and SEIU would bargain over the employment conditions for the two units jointly, but recognized each unit's right to different dispute resolution procedures.

3. By March 2008, SEIU and the County were engaged in bargaining for a successor agreement. During that bargaining, SEIU and the County signed a tentative agreement which deleted the group worker 1 classification from the strike-prohibited bargaining unit description because that position no longer existed.

4. OnApril 30, 2008, MCJEAfiled a petition with this Board to represent the employees in SEIU's strike-prohibited bargaining unit. On July 21, 2008, after an election, this Board certified MCJEA as the exclusive representative of the Juvenile Department group workers.4

5. At the time MCJEA was certified as the exclusive representative of SEIU's former strike-prohibited bargaining unit, SEIU and the County had reached a complete tentative agreement on their successor contract and were finalizing the contract language. The County and SEIU did not believe there were any other strike-prohibited employees in the SEIU bargaining unit and agreed to delete the language referring to the strike-prohibited bargaining unit from the recognition clause of their 2008-10 Agreement. The modified recognition clause in that agreement, which was executed on July 23, 2008, provides:

"The Employer recognizes the SEIU Local 503, OPEU/MCEA, Local 294 as the sole and exclusive bargaining representative for ALL regular employees except supervisory and confidential employees or employees represented by other labor organizations or employees considered prohibited from striking within the definition of ORS 243. 736. "(Emphasis in original.)

6. There are approximately 46 SEID-represented employees in the District Attorney's (DA) office, including support enforcement and criminal investigators, legal secretaries, program coordinators, and support agents. These employees work primarily out of the DA's office in downtown Salem. The support enforcement investigators, who deal with federally-protected information, work on the same floor as the criminal investigators, but in a separate secured area.

4Marion County fuJ1enile Employees Association JI. Mmion County and Marion County Employees Union, Local 294 of Oregon Public Employees Union, SEIU Local 503, Case No. RC-13-08.

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7. The SEIU unit includes employees in positions that visit clients at home or conduct other field work, such as juvenile probation officers, who make unannounced visits to juveniles' homes; mental health specialists, who visit clients in their homes; developmental disability specialists, who visit clients in their homes; protective service investigators, who investigate potential crimes against clients; environmental health specialists, who inspect restaurants and pools for violations; public health nurses, who visit clients in their homes; and code enforcement officers, who conduct on-site inspections and issue citations for code violations.

History of the Criminal Division Investigator Position

8. The first investigator position in the DA's office was established in approximately 1980, under the title of criminal case analyst. The criminal case analyst position included investigators in support enforcement and criminal cases. These employees were originally unrepresented.

9. In December 1989, the County's Board of Commissioners (Commissioners) signed an order declaring that the employees in the criminal case analyst position were "police officers whose regular duties include the duties and functions of a police officer," and ordered these employees to be included in the police and fire Public Employee Retirement System (PERS) benefit program. The order applied to both the support enforcement and criminal investigators. As a result of the County's designation of these employees as police officers, the analysts became eligible for police and fire PERS benefits.5 The primary purpose of the order was to make it easier to recruit police officers for the criminal case analyst position.

10. In 1995, the legislature passed House Bill 2334, which made it a crime to

assault a peace officer. The original bill was amended to add investigators working in district attorneys' offices who had been previously certified as peace officers in Oregon or another state. Dale Penn, the County DA from 1985 through October 2004, testified in support of the amendment.

11. Sometime prior to September 1997, the County reviewed all of the positions in its unrepresented pay plan to determine whether they qualified for unrepresented status under the PECBA, and if not, to designate the appropriate bargaining unit for these positions. During this process, the County reviewed the

5Without the County's action, the analysts would not have been eligible by law for police and fire PERS benefits. In 1997, the legislature considered, but did not pass, House Bill 2987, the purpose of which was to qualify investigators in district attorneys' offices who were previously sworn peace officers in Oregon for police and fire benefits under PERS.

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position of criminal case analyst and compared it with similar positions in other jurisdictions. As a result, the County created the new classification of investigator. The investigator position included, but specified different duties for, the investigators in the support enforcement division and those in the circuit court division.6 The County placed employees in the investigator position in the general SEIU bargaining unit. The County recognized that in other jurisdictions, employees with duties similar to the investigators were placed in law enforcement bargaining units. The County chose not to put its investigators in its law enforcement bargaining unit because that bargaining unit contained only Sheriff's Office employees.

12. In June 2004, the County reclassified one of the criminal investigator positions as a criminal investigations supervisor. The County placed this position on its unrepresented staff pay plan. John Coggins, who had worked as a criminal investigator since 1997, was promoted into this position.

13. In April of 2008, the County approved the Use of Deadly Force Plan, which was developed by a county-wide planning committee pursuant to Senate Bill 111 (2007). One section of the plan provided that an officer's union representative would be notified following the officer's use of deadly physical force. On June 23, 2008, the criminal investigators asked SEIU whether it would provide them legal representation if they were involved in a shooting, and also notified SEIU that the investigators believed they were law enforcement officers prohibited from striking under ORS 243. 726. The investigators stated that if SEIU was unwilling to provide immediate legal representation, it should release them so they could seek representation with a law enforcement union. At some unidentified time, SEIU notified the criminal investigators that it "would not provide them with immediate legal representation during a deadly force incident."

14. During the summer of 2008, when the County conducted its annual review of the investigator position, Criminal Investigations Supervisor Coggins requested that the police duties, such as maldng arrests, transporting prisoners, and serving search and arrest warrants, be added to the criminal investigator's position description. That position description, which was issued in September 2003, listed the following duties for an investigator: " [ c] onducts criminal investigations as assigned; * * * assists Deputy District Attorneys in all phases of case preparation; performs related work as required." The position description included the following example of duties for criminal investigators:

6The Association seeks only to represent the circuit court division investigators, who will be referred to as the criminal investigators hereinafter.

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"1. Assists in determining need for further investigation, plan of inquiry, outlines proposed scope, timing, and direction of investigation; conducts investigation; prepares reports on investigative assignments.

"2. Analyzes cases scheduled for trial.

"3. Prepares summaries and chronologies for trial presentation based on review of medical records, agency documents, psychological materials, and law enforcement information.

"4. Identifies, selects, and locates relevant records, expert and lay witnesses to be subpoenaed.

"5. Locates and interviews witnesses or potential witnesses; prepares reports on assessments of witness reliability; assures that necessary witnesses are subpoenaed to trial and verifies their availability; transports witnesses to and from court.

"6. Examines, take measurements, and photographs crime scenes; evaluates physical evidence/criminology reports; prepares and organizes court exhibits and other evidence for trials."

15. Managers from the County Human Resources (HR) Department and Risk Manager Mina Hanssen raised concerns about the County's liability regarding the additional duties. Beginning in October 2008, Hanssen, DA office representatives, HR Manager Theresa VanDusen, and Senior HR Analyst Kathy Sharp unsuccessfully attempted to agree upon the criminal investigator's job description. On December 15, 2008, Hanssen provided Chief Administrative Officer John Lattimer a formal report in which she stated that the criminal investigators' duties of maldng arrests, serving search warrants, providing armed security in court, and carrying weapons, while limited in nature, created a significant increased risk of loss for the County. Hanssen recommended that the criminal investigators no longer perform these duties, which she believed could easily be performed by law enforcement officers.

16. The Association filed this petition on May 12, 2009.

17. On May 19, 2009, the Commissioners held a work session during which they discussed the criminal investigator's position description and established a work group to make a recommendation regarding the position's duties. After two or three sessions, the only recommendation the work group made was that the criminal investigators should not be transferred to the Sheriff's Office because of supervision issues. At a subsequent work session on July 6, 2009, the Commissioners decided that

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the investigators would continue working under their current job description and that the duties of making arrests, booking prisoners, transporting prisoners, executing search and arrest warrants, and providing court security would not be added to their job description. Coggins and the criminal investigators attended both of the Commissioners' work sessions.

18. On August 6, 2009, as a result of the Commissioners' decision, DA Walt Beglau and Senior HR Analyst Sharp directed the criminal investigators and Coggins to "discontinue enforcing state laws, making arrests, booking prisoners, transports, extradition, executing arrest warrants, executing search warrants, and providing court security and security escort." Sharp stated that it might be necessary for investigators who carried weapons to obtain concealed weapons permits. Beglau directed them to maintain their Department of Public Safety Standards and Training (DPSST) certification.

19. On August 11, 2009, Sharp issued a revised investigator position description, which is essentially the same as the September 2003 position description, except the general statement of an investigator's duties was modified to specify that an investigator" [a ]ssists deputy district attorneys by conducting criminal investigations as assigned; * * * assists in all phases of case preparation; and performs related work as required." In addition, coordinating extraditions was added to the examples of duties for a criminal investigator, and the requirement that "[ s Jome positions may require DPS ST certification" was deleted from the necessary special requirements for the investigator position. Sharp also issued a revised criminal investigations supervisor position description, which is essentially the same as the prior position description, except that the necessary special requirements section no longer includes a requirement to maintain proof of personal liability automobile insurance, pass a drug and alcohol screening test, or have an advanced DPSST certification.

Criminal Investigator and Criminal Investigations Supervisor Duties

20. In 1 985, the criminal case analysts primarily assisted the deputy DA' s with trial preparation. Over time, the position changed to meet the needs of the approximately 22 police agencies in the County who either did not have necessary resources to carry out investigations or were overloaded with work. In working with some of the smaller police agencies in the County, the criminal case analysts often acted in the role of detective on a case, or assisted the local agency's detectives to complete their investigations. This work included interviewing witnesses, serving search and arrest warrants, participating in arrests, and working with interagency teams.

21. The criminal investigators and criminal investigations supervisor caseloads are primarily focused on the high profile cases, including murder, attempted murder,

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Ballot Measure 11 crimes,7 sexual assault, and domestic violence. Investigators work on other cases as time allows. These employees generally do not become involved in a criminal investigation until after an arrest has been made. Once an arrest has been made, the local police agency has limited resources to conduct further investigation. At this point, the criminal investigators and criminal investigations supervisor conduct further investigation and research to assist the deputy district attorney in preparing a case for presentation before the grand jury, and in trial. These employees help determine the scope, timing, and direction of the investigation; identify, locate, and interview witnesses; examine data and materials; and prepare reports on the investigation. They also may examine and photograph crime scenes and evaluate physical evidence and criminology reports.

22. Criminal investigators and the criminal investigations supervisor also assist the deputy district attorneys in preparing for and presenting their case during a grand jury or trial. As part of this process, they may prepare and organize court exhibits and other evidence; serve subpoenas; and locate, transport, and assure that necessary witnesses are present. A criminal investigator is also generally present in the courtroom during a trial to ensure the presence of scheduled witnesses in a secure manner, and to be available to locate additional evidence or witnesses as needed.

23. Criminal investigators and the criminal investigations supervisor are also part of interagency teams, such as the Homicide Area Response Team (HART), along with the deputy district attorneys and detectives from other police agencies. HART team members are called out when a homicide has occurred, paired up with detectives from other agencies, and assigned specific duties in regard to the investigation, such as interviewing vvitnesses and examining the scene. During a bombing case in Woodburn, Coggins was assigned to work on a team with detectives from the Salem and Keizer Police Departments and a federal agent from the Bureau of Alcohol, Tobacco, and Firearms.

24. A minimum qualification for the criminal investigator position is three years' prior law enforcement experience, which includes criminal investigations. Dori Dammer, who was hired by the DA' s office in 2003, previously worked as a police officer and detective for the Salem Police Department. Sarah Snyder worked as a police officer and detective for the Woodburn Police Department before she was hired by the DA's office in 2003. Jennifer Roberts, who previously worked for the Keizer Police Department as a police officer and detective, was hired by the DA's office in 2007. A minimum qualification for the criminal investigations supervisor position is five years law enforcement experience. Prior to working in this position, Coggins had worked for

7Ballot Measure 11 was an Oregon citizens' initiative passed in 1994 that requires mandatory minimum sentences for certain crimes.

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the Sisters and Woodburn Police Departments. The DA's office recruits police officers from local law enforcement agencies to draw on their investigation experience and maintain a connection with those agencies.

25. Prior to August 2009, employees in the criminal investigator and criminal investigations supervisor positions were required to be certified by DPSST. Coggins, Dammer, Snyder, and Roberts all hold basic, intermediate, and advanced police officer certifications from DPSST. DPSST requires that police officers complete 84 hours of training every three calendar years to maintain their certification, including eight hours of training per year in firearms or use of force. Coggins has taken training to satisfy his DPSST requirement through DPSST, the Sheriff's Office, and the Salem and Keizer Police Departments.

26. Prior to July 2009, criminal investigators and the criminal investigations supervisor were authorized to and did carry weapons on duty. In September 2004, DA Penn adopted a Fire Arms Policy for the DA Investigation Team, under which employees authorized to carry a firearm were required to qualify every six months based on courses that met or exceeded DPSST standards. The policy provided that employees would purchase their own firearms, but that duty ammunition was provided by the Department. This policy was recognized by the current DA, but had not been updated since 2004. In the past, these employees were authorized (as police officers were) to carry their weapons on airlines when necessary for performance of their duties.

27. In September 2004, Penn adopted a Use of Force Policy for members of the DA's office which specified the lethal and non-lethal weapons that members of the department could utilize. Under the policy, department members could use force only where "necessary to effect an arrest, prevent an escape, to protect the life of the member or another person or to prevent serious injury to the member or another person." The administrative philosophy portion of the policy provided:

"District Attorney Investigators are not normally tasked with primary investigations and response to crimes in progress. As Police Officers, it is understood that situations may arise that require action to be taken by an Investigator. In these situations, Investigators should follow the use of force continuum as outlined below. It is the philosophy of the Marion County District Attorneys Office that Investigators of this office make a reasonable attempt to take a uniform Officer with them when conducting an Investigation in which it is known an arrest will be made. In those instances where no prior knowledge of an arrest being required is known, Investigators are encouraged to obtain assistance prior to making the arrest. In those instances where this is not possible, Investigators should make an effort to remove themselves from the situation and obtain assistance."

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28. Since August 2009, the criminal investigators and the criminal investigations supervisor are no longer authorized to carry weapons on duty, unless carrying a weapon pursuant to a concealed weapon permit in the same manner other individuals would.

29. Criminal investigators and the criminal investigations supervisor all carry identification which states that they are a "Duly Sworn Law Enforcement Officer." They also carry badges, which indicate that they are DA Investigators.

30. Criminal investigators and the criminal investigations supervisor have all been required to sign the criminal justice code of ethics and swear oaths of office to "support the Constitution of the State of Oregon and the laws thereof."

31. Prior to July 2009, criminal investigators and the criminal investigations supervisor were occasionally involved in making arrests, transporting arrested prisoners, and booking these prisoners at the jail on an as needed basis. In preparing her risk analysis, County Risk Manager Hanssen found that the four criminal investigators had participated in approximately 3.5 arrests per investigator per year since 2005. Since July 2009, these employees no longer perform these duties.

32. Prior to July 2009, criminal investigators and the criminal investigations supervisor wrote search warrants, including the required affidavits, and presented them to judges for signature after having them reviewed by a deputy district attorney. Since July 2009, these employees no longer write or serve search or arrest warrants.

33. Prior to July 2009, criminal investigators and the criminal investigations supervisor worked with the Sheriff's Office to provide court security. While in court, Coggins has been ordered by the judge numerous times to take someone into custody. Since July 2009, these employees no longer provide court security.

34. Criminal investigators and the criminal investigations supervisor are required to be certified for access to LEDS (law enforcement data base).

35. Criminal investigators and the criminal investigations supervisor are assigned a call sign number and have access to the Willamette Valley Communication System through the Salem Police Department and the Sheriff's Office frequencies.

36. When the criminal investigators and the criminal investigations supervisor are involved in an investigation with another police agency, such as the Salem or Keizer Police Departments, they generally have unfettered access to that department in the same manner as the department's own police officers and may carry weapons into the

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department. Deputy Chief of criminal investigations for the Salem Police Department, Steve Bellshaw, considers the criminal investigators and the criminal investigations supervisor to be police officers.

3 7. Criminal investigators and the criminal investigations supervisor wear plain clothes while on duty and drive unmarked vehicles without cages.

38. Detectives in other police agencies, such as the Salem Police Department, generally wear plain clothes, drive unmarked police cars without cages, generally carry a weapon and a minimum amount of equipment, and do not patrol the streets.

CONCLUSIONS OF LAW


2. The representation petition is untimely and will be dismissed.

DISCUSSION

The petition in this matter was filed under OAR 115-025-0000(l)(a), which provides that"[ a] petition for an election to certify a public employee representative may be filed by any labor organization claiming to represent 30 percent of the public employees in an alleged appropriate bargaining unit." If the employees at issue are already represented by a labor organization, the petition may be subject to a contract bar. Under a contract bar, a written collective bargaining agreement with a term of up to three years bars any election involving employees covered by the contract for its entire term. ORS 243.692(1); OAR 115-025-0015(2). Where a contract bar exists, the open period for filing a representation petition is not more than 90 days and not less than 60 days before the end of the contract period. ORS 243.692(3); OAR 115-025-0015(4).

The representation petition in this matter is untimely due to the contract bar. The petitioned-for employees have been part of the SEIU bargaining unit since 1997. On the date the petition was filed, May 12, 2009, SEIU and the County were parties to a collective bargaining agreement, which was executed on July 23, 2008, which covered that bargaining unit. The agreement was effective through June 30, 2010. This agreement operates as a contract bar for a representation election for any employees covered by that agreement unless: (l)"[u]nusual circumstances exist under which the contract is no longer a stabilizing force" and an election is needed to "restore stability to the representation of employees in the [bargaining] unit"(ORS 243.692(2)(a) and (b)); or (2) the petition was filed during the open period. The parties do not allege the

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existence of any unusual circumstances which would require an election, and we do not consider this exception to the contract bar doctrine. Nor was the petition filed during the open period.

The Association contends, however, that this Board cannot dismiss the petition as untimely because the Elections Coordinator, an agent of this Board, previously determined that the petition was timely. The Association notes that the Elections Coordinator initially notified the Association that she would ask this Board to dismiss the petition as untimely unless the Association presented "clear and convincing evidence" that the petition was timely. The Association asserts that since the Elections Coordinator served the petition after the Association presented its argument that the petition is timely, this Board has already concluded that the petition is timely. According to the Association, the parties cannot now "collaterally attack" the petition as untimely. The Association misconstrues this Board's authority in the representation process.

The procedure used here is mandated by statute and administrative rule. Based on an investigation, the Elections Coordinator determined that a question of representation existed. OAR 115-025-0025(2). The petition was then served, and the parties filed objections. These objections properly challenged the appropriateness of the unit and the timeliness of the petition. As required by law, the ALJ scheduled a hearing on the objections. OACE v. Eaglepoint School Dist. No. 9, 99 Or App 347, 350, 782 P2d 432 (1989); ORS 243.682(2); OAR 115-25-045. The ALJ issued her Recommended Order, and the matter came before us for issuance of the Final Order. There has been no prior final determination that the petition is timely so there is nothing that a party can"collaterally attack." We appropriately exercise our authority to decide that the petition is untimely and dismiss it.

The Association argues, however, that the petition is not barred by the SEIU collective bargaining agreement because the recognition clause of that agreement specifically excludes strike-prohibited employees. The Association asserts that this Board should determine that the criminal investigators and criminal investigations supervisor are strike-prohibited employees and are excluded from the SEIU bargaining unit under the language of the contract recognition clause. Based on these findings, the Association contends that we should hold that this petition is not barred by the SEIU agreement.

It is neither appropriate nor necessary to decide if the petitioned-for employees are strike-prohibited. It is undisputed that the criminal investigators and criminal investigations supervisor have long been part of the SEIU bargaining unit. The criminal investigators themselves recognized that they were represented by SEIU when, in June 2008, they contacted SEIU to ask if SEIU would provide them with immediate legal assistance in deadly force incidents. When SEIU and the County negotiated their current collective bargaining agreement, neither party raised any issue regarding criminal

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investigators' status as bargaining unit members. Although the parties altered the description of the SEIU bargaining unit in their 2008-2010 collective bargaining agreement, this change did not affect the criminal investigator and criminal investigations supervisor positions. Both the County and SEIU continued to treat these employees as represented by SEIU and covered by the terms of the SEIU collective bargaining agreement. Therefore, we conclude that these employees are represented by SEIU and the contract bar does apply.

The Association argument-that the employees at issue are not members of the bargaining unit-is based entirely on its novel interpretation of the recognition clause. The Association's assertion is contrary to the County and SEIU's contractual agreement, their bargaining history, and their past and present relationship which demonstrate that the criminal investigators have been and continue to be part of the SEIU bargaining unit. See Trade Wind TrallSp. Co., Ltd., 168 NLRB 860 (1968) (the terms of the collective bargaining agreement, the parties' past bargaining histo1y, and the employer's present bargaining relationship with the union are evidence that the disputed employees are part of a bargaining unit) and Hyatt House Motel, et al., 174 NLRB 1009 (1969) (a group of employees, who worked for the employer when the bargaining unit was established and who have been historically excluded from the bargaining unit, may not be accreted to the bargaining unit).

In addition, if we were to accept the Association's interpretation of the recognition clause, we would reach a result that is contrary to the purposes and policies of the PECBA. Two of the fundamental purposes of the PECBA are to promote peaceful dispute resolution through collective bargaining agreements and to allow public employees the right to freely choose their bargaining representative. ORS 243.656 (5). The PECBA contract bar doctrine, which is very similar to one included in the National Labor Relations Act (NLRA),8 furthers these goals by giving parties a reasonable period of stability after they enter into a collective bargaining agreement. At the same time, the doctrine recognizes the employees' rights, at reasonable times, to change their exclusive representative. Deluxe Metal Furniture Co., 121 NLRB 995 ( 1958). The Association's position would disrupt the balance the contract bar seeks to achieve between stable labor relations and employee free choice. It would leave few limits on employees' ability to attempt a change in their bargaining representative during the life of a collective bargaining agreement.

8Because of the similarities between the NLRA and the PECBA, decisions of the National Labor Relations Board provide guidance to interpreting the PECBA. E/J>in 11. OPEU, 313 Or 165, 175 and n 7, 832 P2d 36 (I 992);AFSCME Local 189 11. City of Portland, Case No. UP-7-07, 22 PECBR 752, 799 n 13 (2008).

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The Association's petition is untimely under the contract bar doctrine and is dismissed.

Even if we accept the Association's request to determine if the criminal investigators are strike-prohibited, however, we would conclude that they are not. Under ORS 243.672(l)(g), police officers are prohibited from strildng. The focal duties of a police officer are to enforce all state criminal laws and maintain public order. AFSCME Local 2505 v. OLCC, Case No. UC-68-86, 9 PECBR 9128 (1986), affd 91 Or App 385, 389, 7 55 P2d 148 ( 1988). An employee whose exercise of peace officer duties (such as stops, arrests, and searches) is occasional and incidental to the employee's primary job is not a police officer. Clackamas County v. Federation of Oregon Parole, Case No. UP-91 -91, 13 PECBR 538, 545 (1992), affd 124 Or App 395, 862 P2d 114 (1993).

Here, the focal duties of the criminal investigators are to assist County law enforcement agencies in investigating cases and to assist the District attorneys in preparing for and presenting cases at trial. Before 2009, the investigators' occasional exercise of peace officer duties-maldng arrests, transporting and booldng prisoners, and providing court security-was incidental to their primary job. Since 2009, the criminal investigators have exercised no police officer duties. Accordingly, the criminal investigators and criminal investigations supervisor are not strike-prohibited police officers.

ORDER

The petition is dismissed.

0,

,~\:IA Susan Rossiter, Board Member


" 16"


OF THE

STATE OF OREGON

Case No. UC-001-11

(REVOCATION OF CERTIFICATION)

ASHLAND PARKS AND RECREATION EMPLOYEE ASSOCIATION,

Petitioner,

v.

ASHLAND PARKS AND RECREATION DEPARTMENT,

Respondent.

) ) ) ) ) ) ) ) ) ) ) )

~~~~~~~~~~~~-)

ORDER REVOKING CERTIFICATION

On March 16, 2010, this Board certified Ashland Parks and Recreation Association (Association) as the exclusive representative of a bargaining unit of employees described as:

"All employees of the Ashland Parks and Recreation Department, excluding supervisory and confidential employees." Ashland Parks and Recreation Association v. City of Ashland, Case No. RC-028-09 (2009). 1

On January 10, 2011,2 the Association filed this petition under OAR 115-025-0009 seeking to revoke its certification. OAR 115-025-0009 states:

"A petition to revoke an existing Board certification or employer recognition of an exclusive representative may be filed at any time by an employer or exclusive representative. The Board will order revocation only upon a showing that:

' 1Both the Association's name and the employer's name in the current petition differ slightly from the names in the original certification petition, but neither party disputes that the entities are the same as in the original petition.

2All dates are in 2011 unless noted otherwise.

"( 1) No collective bargaining agreement is in effect; and

" ( 2) The labor organization disclaims further interest in representing the bargaining unit or the labor organization is defunct."

At the request of the Elections Coordinator, the Association's representative verified that no bargaining agreement was in effect and that the Association was no longer interested in representing the bargaining unit.

On January 18, the Elections Coordinator served the petition on the Ashland Parks and Recreation Department (Employer) and informed it that if it disputed the Association's representations, it had 14 days to file objections. No objections were filed.

On January 31, the Employer certified that, as of January 26, it had posted notices of this petition in five locations.

Based on the foregoing, this Board orders as follows:

ORDER

The certification of Ashland Parks and Recreation Employees Association as the exclusive bargaining representative of employees of the Ashland Parks and Recreation Department is revoked.

Paul B. Gamson, Chair




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OF THE

STATE OF OREGON

Case No. UP-38-09


AFSCME LOCAL 2831, ) ) ) ) ) ) ) ) )

Complainant,

v.

LANE COUNTY,

Respondent. ~~~~~~~~~~~~~)


On August 18, 2010, this Board heard oral argument on Complainant's objections to a Recommended Order issued by Administrative Law Judge (ALJ) Wendy L. Greenwald on April 30, 2010, after a hearing held on November 25, 2009, in Salem, Oregon. The record closed on December 23, 2009, following receipt of the parties' post-hearing briefs.

Allison Hassler, Legal Counsel, Oregon AFSCME Council 75, Eugene, Oregon, represented Complainant.

Pierre L. Robert, Assistant County Counsel, Lane County, Eugene, Oregon, represented Respondent.

On August 19, 2009, AFSCME Local 2831 (Union ) filed an unfair labor practice complaint against Lane County (County), alleging that the County failed to bargain in good faith in violation of ORS 243.672(l)(e) by notifying the Union of its intent to implement its Drug-Free Work Place Policy a week after the parties executed a successor collective bargaining agreement. The County filed a timely answer to the complaint.

The issue is:

Did the County violate ORS 243.672(l)(e) by notifying the Union of its intent to implement a Drug Free Workplace policy on or about May 20, 2009, after failing to pursue bargaining or failing to bargain in good faith over this issue during negotiations for a successor collective bargaining agreement?

RULINGS

1. At the hearing, the ALJ deferred ruling on the admission of Exhibit R-23, the County's minutes from the parties' May 8, 2008 bargaining session. After the Union withdrew its request to submit its May 8 meeting minutes in its post-hearing brief, the County also withdrew its request to submit Exhibit R-23., Therefore, Exhibit R-23 is withdrawn from the record.

2. The other rulings of the ALJ were reviewed and are correct.

FINDINGS OF FACT

1. The Union is the exclusive representative of a bargaining unit of employees who work for the County, a public employer.

2. Union representatives during the time relevant to these events include AFSCME Council 75 Representative Jim Steiner, AFSCME Council 75 Legal Counsel Allison Hassler, Union Steward Paula Medaglia, and Union President Lora Green. Steiner has represented the employees in the Union's bargaining unit since approximately 2000.

3. County managers during the time relevant to these events include Labor Relations Manager Roland Hoskins, Assistant Public Works Director Howard Schussler, Assistant County, Counsel Pierre Robert, Health and Human Services Department (HHSD) Director Rob Rockstroh, and HHSD Assistant Director Karen Gaffney. Labor Relations Manager Hoskins began working at the County half-time in June 2007, and then full-time in September 2007.

Background

4. Effective September 1998, the County adopted the following "Drug Free Work Place Policy:"

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"It is the policy of Lane County to ensure a drug-free work environment. The unlawful manufacture, distribution, dispensation, possession, or use of a controlled substance is prohibited in the workplace. Any unlawful manufacture, distribution, or dispensation of a controlled substance in the workplace shall be cause for immediate discharge. Unlawful possession or use of a controlled substance in the workplace shall be cause for immediate disciplinary action which could result in discharge. The County Administrator shall adopt administrative procedures implementing this policy including the sanctions for policy violation. The Administrator shall also adopt policies necessary to keep Lane County government in compliance with Public Law 100-690 (the Anti-DrugAbuseAct). Pursuant to LC 2.225(1), the Fair Board shall likewise adopt policies and procedures to ensure a dnig-free work environment at the fairgrounds."

5. In 2006, the County began to develop comprehensive dnig-free workplace policies and procedures to be incorporated into the County's Administrative Procedure Manual (APM). During this process, the County did not negotiate with the Union regarding the application of these procedures to bargaining unit members.

6. County Public Works Department employees are represented by three different unions. Two of these unions, Admin Professionals Union and Local 66,1 represent employees who are covered by the Oregon Department of Transportation (ODOT) dnig-testing regulations and a related County Drug-Free Work Place Policy, which includes rigid drug-testing requirements. Assistant Public Works Director Schussler negotiates annually with these two unions over the renewal of the ODOT-related drug-testing policy. At each annual bargaining session, representatives from the Admin Professionals Union and Local 66 told Schussler that it was unfair that other County employees were not subject to any type of drug testing, including pre-employment drug testing.

7. The County and the Union participate in a Joint Labor Management Relations Review Committee (JLMRC). During JLMRC meetings, County and Union representatives discuss and attempt to resolve a variety of issues. Schussler attends the JLMRC meetings. At JLMRC meetings over the past five years, Schussler has regularly raised the issue of drug testing. Union representatives have generally responded that the JLMRC is not the appropriate place to bargain the issue, that Union bargaining unit employees do not hold a license which requires that they be tested, and that any type of random testing would be unconstitutional.

'Witness Schussler referred to the two unions by these names. The record does not reflect more complete names for these unions.

.3.

8. Just prior to the October 2007 JLMRC meeting, Schussler engaged in annual negotiations about the drug-testing policy with the Admin Professionals Union and Local 66. These unions again voiced their concern that other County employees were not subject to drug testing. As a result, Schussler requested that the topic of pre-employment drug testing be placed on the JLMRC meeting agenda.

9. At the October 31, 2007 JLMRC meeting, Hoskins, Schussler, and Director of Information Services Tony Black, represented the County. Then Union President Cheryl Dyer, Union Steward Medaglia, and Council 75 Representative Steiner, represented the Union. Vicki Epperson, a senior program analyst in the Human Resources Department (HR), was also present to take contemporaneous notes of the meeting on her computer. The minutes reflect that the following discussion occurred regarding drug testing:

"2) PRE-EMPLOYMENT DRUG TESTING FOR ALL EMPLOYEES NEW TO PW COUNTY

"Schussler: Each year the ALC and drug testing is reviewed. The same issue is brought up every year: all employees should be tested for drugs (the standard test given by the County). Given that we are a drug free work place they believe that all employees should go for drug screening at the time of hire unless they have DOT or CDL requirements. It is an important gesture to the employees because they believe in a drug free workplace. The suggestion is that all new employees would be tested at the time of hire.

"Steiner: The Union agreed to all the drug testing and background testing with Tony's group. This item can be brought in at bargaining. Doesn't believe the Union would have any problem with it. Let him know what the policy would look like before it was implemented and a timeline of implementation.

"Schussler: We should test anyone who was hired after the policy was adopted.

"Steiner: Show where the policy would go and what it would look like. Asked Howard to email the policy."

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10. The County adopted a comprehensive Drug-Free Work Place Procedure in November 2007.2 This procedure covers prohibited conduct and its consequences, testing procedures and standards, employee rights, and return to work agreements. The section addressing consequences provides that violations of any provisions of the procedure will result in: 1) immediate tennination for probationary, seasonal, temporary, and extra help employees; and 2) discipline, up to and including termination, for other County employees. The procedure provides for pre-employment and reasonable-suspicion drug testing. Regarding random dntg testing, it states:

"This policy specifically does not provide for an ongoing random testing program for all Lane County employees. Lane County may determine a need to conduct random testing in certain instances in order to comply with federal and/or state requirements or because of the safety sensitive nature of specific jobs. Random testing may also be required as a condition of a Return To Worl</Performance Agreement."

Successor Contract Negotiations

11. On approximately January 8, 2008, AFSCME Representative Steiner notified the County of the Union's intent to begin bargaining over a successor collective bargaining agreement. Steiner requested that the parties agree on a bargaining schedule.

12. After receiving Steiner's bargaining request, Human Resources (HR) Manager Hosldns discovered that other County managers were so preoccupied with budget issues that he would have a difficult time bringing together a team. By letter dated February 28, 2008, he proposed to Steiner that the parties wait until April to begin bargaining due to the County's involvement in an extremely difficult budget process. The Union was unwilling to delay bargaining, and filed a grievance over the County's response to its demand to bargain. The parties finally scheduled their first bargaining session in May 2008, and resolved the grievance over the bargaining delay.

13. On May 8, 2008, the parties met to discuss the ground rules for their successor contract negotiations. Hosldns, Schussler, Steiner, and Medaglia attended the meeting. Valerie Sanchez from the County Labor Relations Department was also present and took contemporaneous notes on a computer of the discussions during this and subsequent negotiation meetings. During the May 8 meeting, the parties agreed that " [a ]II proposals shall be on the bargaining table no later than the third negotiation session, not including the parties' first meeting discussing ground rules." The County did

2The parties referred interchangeably to the Drug-Free WorkPlace Procedure as both a policy and a procedure.

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not raise the issue of its Drug-Free Work Place Policy or make a proposal regarding that policy at this meeting.3 During this meeting, Steiner gave Hoskins copies of two U.S. Supreme Court dn1g-testing cases and a copy of the Three Rivers School District4 case.

14. The parties' next bargaining session was held on July l, 2008. During this session, the Union presented its first proposal, which included a change in Article VI, the parties' grievance procedure. The Union proposed to delete the language in the current contract that required that unemployment insurance be deducted from an arbitrator's back pay award. At the time the Union presented this proposal, it referred the County to the 171ree Rivers School District case. When the County asked Steiner if he had copies of the case, Steiner indicated that he would provide it, but that the County could also find the case on the internet.5

3The Union made the following allegations regarding the County's attempts to raise drug policy issues early in discussions about successor contract negotiations: 1) that prior to the May 8 meeting, Hoskins sent Steiner an e-mail regarding the County's desire to present a drug testing proposal; 2) that the parties discussed the County's Drug-Free Work Place Policy before they began bargaining; and 3) that the County discussed drug testing at the parties' May 8 meeting. The Union failed to prove these allegations, however. The Union never produced a copy of the e-mail Hoskins supposedly sent Steiner prior to the parties' May 8 meeting. Although Steiner testified that he placed drug testing on the agenda for a Union bargaining team meeting after he received Hoskins' e-mail, the Union never produced a copy of this agenda. Nor did the Union present any evidence to support its claim that the parties discussed drug testing at their May 8 meeting.

We find it more likely than not that the discussion about the County's Drug-Free Work Place Policy occurred at the parties' October 31, 2007, JLMRC meeting. The County produced minutes of the meeting that verified the parties' discussion about this issue. Steiner's recollection of the timing of many of the events about which he testified was not clear. While Steiner recalled that discussion about the drug policy occurred prior to bargaining, he admitted that he did not remember the exact date of the discussion and also admitted that it could have occurred during a JLMRC meeting. We need not resolve this conflict about County efforts to raise drug policy issues early in successor contract bargaining, however. The County clearly expressed its desire to bargain about its drug policy in discussions about the Doe incident in July 2008. Since the parties were in successor bargaining when this occurred, whether the issue also arose earlier during the ground-rules meeting is not critical to our decision.

4We assume that the Union was referring to the Oregon Supreme Court's decision in Zottola l'. I7zree Ril'ers Sch. Dist., 342 Or 118, 149 P3d 1151 (2006), in which the court held that the Fair Dismissal Appeals Board was not authorized to deduct unemployment compensation from an employee's back-pay award.

5The Union claimed that the County brought up drug testing at this first bargaining session and made a proposal on the issue which it subsequently withdrew. The Union presented

( ... continued)

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15. The parties met to bargain on July 15, 2008. Neither party made a proposal regarding the Drug-Free Work Place Procedures or drug testing during this meeting.

16. Sometime prior to July 22, 2008, a supervisor notified HHSD Assistant Director Gaffney that Jane Doe6 (Doe) appeared to have been impaired when she came to work. Doe was a medical assistant responsible for direct patient care, including giving injections. Gaffney consulted the APM, Drug-Free Work Place Procedure, and, working in conjunction ·with the HR Director, sent Doe for reasonable-suspicion drug testing. After receiving the results of the drug test, the Department began the process to discipline Doe.

17. When Steiner learned that Doe had been drug tested, he told HHSD managers and Hoskins that the County could not require Doe to submit to a drug test because the Union and County never bargained about the County's Drug-Free Work Place Procedure. Hoskins was surprised at Steiner's statement. He assumed that his predecessor negotiated about the procedure with the Union since it had been in place since 2007. On July 22, Hosldns notified Steiner that he would look into the situation. Between July 22 and July 25, 2008, Hoskins reviewed prior bargaining minutes and e-mails to discover if prior County labor relations manager Frank Forbes bargained over the drug-free workplace procedure with the Union. Hosldns found no documentation that any such bargaining occurred.7

( ... continued) no evidence to support this contention, however. Although Steiner testified that the County

raised the drug testing issue in bargaining, he also testified that he was the first person to bring up the matter when, on May 8, he gave County bargainers Supreme Court cases concerning drug testing. Union Steward Medaglia also testified that Steiner was the one who raised the issue. Our conclusion that the Union, not the County, raised the issue of County drug policy does not affect our decision, however. As discussed above, it is undisputed that the County stated its desire to bargain about its drug policy in July 2008, when the incident involving Doe occurred.

6"Jane Doe" is a pseudonym.

7We find credible Hoskins' testimony that prior to the Doe incident, he and other County managers believed that the County had bargained the Drug-Free Work Place Procedure with the Union. The record shows that Hoskins and other County managers acted in a manner consistent with their belief that the procedure applied when they sent Doe for reasonable-suspicion drug testing. When Steiner told Hoskins that the procedure did not apply, Hoskins expressed surprise and told Steiner he needed to research prior bargaining records and e-mails to determine if Steiner was correct. Although Steiner testified that prior to the Doe incident, he and Hosldns discussed the inapplicability of the drug testing policy to Union bargaining unit members, there is no evidence that Steiner either expressed disbelief at Hosldns' need to research the issue or reminded Hoskins of their prior discussion.

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18. While Hosldns researched bargaining history, Hosldns and Steiner talked several times about Doe's situation. The County was interested in working with the Union to obtain help for Doe, even if the procedure did not apply. The Union was also interested in detenniningwhat assistance Doe might need. While Hoskins continued to search for documentation that Forbes had bargained the policy with the Union, he primarily focused on Doe's situation. AB a result, Hosldns felt unprepared to raise the dn1g-free workplace policy in successor contract negotiations.

19. On Friday, July 25, 2008, Hoskins sent Steiner the following e-mail:

"Hello Jim, I wanted to update you on the [Doe] situation. It ·was my belief that the union was notified of the County's reasonable suspicion policy because I have notes which indicated Frank [Forbes] provided draft versions of the policy to the union as far back as October of 2006 and he appeared to be working ;vith the union as the policy was drafted and implemented. We were working within the constraints of the current policy, until it was brought to my attention that you notified Rob that the union was not involved in the development of the policy.

"The County is going to bring [Doe] back and has no intentions of disciplining [Doe] as a result of this situation. Hopefully, you can help us achieve our mutual goal of worldng with [Doe] to determine what help, if any, she feels she needs at this time.

"I would be interested in bargaining the implementation of a policy with the union outside of the current bargaining sessions in the future. I would prefer to continue worldng through the current proposals that have been brought to the table at this time. "8

20. The parties' third bargaining session was held on July 29, 2008. This was the last session for the parties to raise new issues under their ground rules. Neither party made a proposal regarding the drug-free workplace procedures or drug testing during this meeting or at any other time during successor contract negotiations.

8There is no evidence in the record regarding if or how the Union responded to Hoskins' e-mail.

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21. Successor contract negotiations were very contentious and, at one point, the Union took an intent to strike vote. Steiner and Medaglia believe that had the County made a proposal regarding the Drug-Free Work Place Procedure during contract bargaining, it would have substantially affected the bargaining process. During a mediation session on February 27, 2009, the parties reached a tentative agreement, which was subsequently ratified by the Union's bargaining unit members and the County commissioners.

22. On February 19 and March 3, 2009, the Union filed two unfair labor practice complaints over the County's conduct during the successor negotiations. The parties subsequently entered into consent orders regarding both complaints.9 In the first consent order, issued August 24, 2009, the County acknowledged that it called a news conference contrary to the parties' ground rules in violation of ORS 243.672(1)(g). 10 In the second consent order, issued on September 27, 2009, the County acknowledged that it violated ORS 243.672(1)(e) when it unilaterally implemented a change in an employee's right to sell time management hours (leave time) before the parties reached an impasse in their negotiations. 11

23. In February 2009, a supervisor notified HHSD Assistant Director Gaffney that Doe again appeared to be impaired. Gaffney documented the supervisor's observations and findings. Because the APM procedure did not apply to the Union-represented employees, she did not send Doe to be drug tested. Gaffney notified the HR Department about the second incident with Doe.

24. Beginning in May 2009, Steiner took a leave from work for six weeks because of the critical illness of a family member. Steiner notified the County about his absence and the reason for the absence. He told the County that if an issue arose during his absence, a County representative should contact either AFSCME Council 75 Legal Counsel Hassler or Representative Rick Hensen.

25. The parties executed their 2008-11 collective bargaining agreement on May 13, 2009. Article V of that agreement addresses discipline and discharge procedures and standards. Article XVII includes several miscellaneous provisions, that provide in part:

9Under OAR 115-035-0070, parties to an unfair labor practice proceeding may submit a settlement agreement resolving all issues in the complaint to this Board. Upon approval of the agreement, this Board issues a consent order reflecting the agreement.

wSeeAFSCME Local 2831 v. Lane Counry, Case No. UP-13-09, 23 PECBR 307 (2009).

11 SeeAFSCkJ.E Local 2831 v. Lane Counry, Case No. UP-10-09, 23 PECBR 357 (2009).

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"Section I - Change in Conditions

"*****

"(B) If the COUNTY proposes to implement a change in matters within the scope of bargaining as defined by ORS 243.650(7) and not specifically mentioned in this Agreement that would result in more than a de minimus effect on the bargaining unit, the COUNTY will notify the UNION in writing prior to implementing the proposed change. Upon timely request of the UNION (within fourteen ( 14) days), the following ORS 243.698 shall apply.

"* * * * *

"Section 3 -Waiver

"The parties acknowledge that during the negotiations which resulted in this Agreement, each had the unlimited right and opportunity to make demands and proposals with respect to any subject or matter appropriate for collective bargaining and that the understandings and agreements arrived at by the parties after the exercise of that right and opportunity are set forth in this Agreement. Therefore, except as otherwise specifically provided in this Agreement, the COUNTY and the UNION, for the life of this Agreement, each voluntarily and unqualifiedly waives the right and each agrees that the other shall not be obligated to bargain collectively with respect to any subject or matter covered by this Agreement without mutual consent." (Emphasis in original.)

Expedited Negotiations Process

26. Sometime prior to May 20, 2009, Department managers and Hoskins' supervisor, HR Director Greta Utecht, pressured Hoskins to bargain the Drug-Free Work Place Procedure with the Union. On May 20, 2009, Assistant Public Works Director Schussler gave newly-elected Union President Lori Green a letter from Hoskins, which stated:

"In conformance to ORS 243.698 and Article XVII, Section 1 (B), the County is notifying AFSCME of its intent to move forward with the administration of the County's Drug and Alcohol Policy, currently in the

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APM, to ensure compliance with Federal grant funding requirements. The grants fund many of the positions and services delivered by AFSCME members. The policy is attached for your review. If you would like to meet to discuss this issue, please notify me within 14 days to commence the obligatory 90-day bargaining period to reach an agreement or absent an agreement the County can implement the policy.

"If AFSCME does not notify the County within the 14 day time frame, it will move forward with the implementation."

A copy of the APM Drug-Free Workplace Procedure was attached to the letter. The letter indicated that Steiner and Union Steward Medaglia had been sent a copy, although neither of them received it.

27. Green gave Hoskins' May 20 letter to AFSCME Council 7 5 Legal Counsel Hassler. Hassler then sent the County a demand to bargain over the implementation of the policy, which the County received on May 27, 2009. Hassler requested that the County provide AFSCME with available bargaining dates between June 22 and July 31 to allow time for Steiner to return from leave and prepare for bargaining. On May 27, the County provided the Union with seven potential bargaining dates between June 22 and July 24. Steiner returned from leave either at the end of the first week or the beginning of the second week in June. On June 9, Steiner notified the County that the first date he was available for bargaining was July 2.

28. On June 25, Steiner sent the County a request for information about the federal grants the County had referred to in its May 20 letter. On July 1, 2009, Hoskins and Steiner exchanged a series of e-mails regarding the information request. Initially, Hoskins sent an e-mail to Steiner describing the primary grants that applied to the Union-represented positions. Steiner then requested information about which of the grants required post-employment drug testing. Hoskins responded that "[t]he grant programs do not require drug testing. The Feds require the organizations that receive grant dollars to implement a drug free workplace policy, which is what we are attempting to do."

29. Under the Drug Free Workplace Act of 1988, 41 USC §701 (1988), federal grant recipients must agree to provide a drug-free workplace. The Act specifies that these recipients must meet a number of requirements, such as providing a statement to employees that the unlawful use or possession of a controlled substance in the workplace is prohibited and specifying the consequences of violating this prohibition; instituting a requirement that all employees receive a copy of this statement; establishing a program

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to notify employees about the dangers of drug abuse, employer resources for assistance with drug problems, and penalties for drug abuse violations; and imposing sanctions on employees or requiring employees to receive assistance for convictions of any criminal dn1g statute based on workplace conduct. The Act does not require that employees be subjected to drug-testing. The County had not received any new grants since it had engaged in the bargaining for the 2008-11 agreement.

30. On July 2, 2009, Steiner sent Hoskins the following e-mail:

"Please provide the material you are referring to that 'require the organizations that receive grant dollars to implement a drug free workplace policy.' Also per my original request please provide what is different now versus when the County wanted to bargain this issue in 2008? Are there new classifications? Are there different programs? Are there now new requirements? The Union needs this information as it is extremely relevant to ascertain who, what or if anyone the 'regs' (as you call them) require to undergo post employment drug testing. Hopefully you can gather this information by today's session.''

31. The same day, Hosldns responded by e-mail to Steiner, stating:

"At one point, in 2008, I acted as though the policy was implemented in the organization and you informed me that AFSCME never had an opportunity to bargain this issue with the County. We agreed that some of the impacts of the policy implementation were mandatory subjects. I believe that we briefly discussed the drug policy during our contract negotiations last year, but the issue was shelved.

"I can provide you a copy of the Drug Free Workplace Act of 1988. Again, we need to implement a policy to comply with the act."

32. Also on July 2, the parties met for their first bargaining session. The County team included Legal Counsel Robert, Hoskins, Gaffney, and Schussler. The Union team included Steiner, Green, and Medaglia. At this meeting, Steiner notified the County that he did not believe the Union had an obligation to bargain over the policy since the County had raised this issue and failed to pursue it during the successor bargaining process. Steiner stated that the Union would participate in bargaining because it also had an interest in a drug-free workplace, but was not waiving the right to assert this legal issue at a later time.

33. During the July 2 meeting, the parties engaged in a discussion about a . variety of issues related to the County's proposed drug-free workplace procedure,

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including the federal requirements, cases addressing drug-testing issues decided under the Public Employee Collective Bargaining Act (PECBA), the APM drug-testing requirements and procedures, and the Union's concerns about drug-testing. The Union's bargaining minutes reflect that the following discussions occurred:

"Steiner - Trying to resolve if parties don't bargain, why should employer bargain afterwards? Did not bargain it then.

"Hoskins - Shelved it during bargaining. I assumed Frank [Forbes] bargained this before. Focused on diff. [different] thgs. [things], then came back to it.

"Robert - Implemented in 11/07. Don't think anythg has chgd. Heard about employee could be required to take drug test - intoxicated. That's why we're here today. "12

At the end of the meeting, the parties scheduled their next bargaining session for August 4. For reasons that do not appear in the record, this meeting never occurred.

34. On August 5, 2009, Steiner sent Hoskins and Robert the following e-mail:

"I am writing you as a follow up to discussions during our last meeting to about [sic] the County's desire to implement drug testing. I made it clear during our last meeting discussing that the Union does not believe we have a duty to bargain a new policy at this time. The Unions [sic] willingness to meet and discuss this issue with you is for preserving our rights under the PECBA. We are not mutually bargaining at this time however we will continue to meet and discuss the issue. "Gentlemen, this is not a new issue. The County has wanted AFSCME to agree to drug testing several times in collective bargaining and the Union has consistently not agreed and the issue has been dropped. In the most recent negotiations you were going to bring a proposal, yet dropped it. Through the Collective Bargaining Agreement Article XVII section 3 you will have the right to bargain this issue again during successor negotiations. With the knowledge of the current contractual language and your acknowledgement [sic] that you could not get drug testing in the recent negotiations what makes you believe that you can get drug testing now?"

12The speakers were identified in these minutes by an initial. Medaglia, who took these minutes, testified to the identify of these speakers. The speakers' names have been substituted for the initials.

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35. On August 14, Hoskins responded to Steiner, stating:

"* * *The answer your [sic] question is that Sec. 3. of Art XVII does not apply. That section states that no matter addressed in the contract may be re-negotiated during the 3yr term without mutual consent. Of course, the contract has no provision implementing impacts of our APM on drug testing.

"If I understand your argument, you believe the fact that the parties discussed implementation of thatAPM during the contract bargaining, but ultimately dropped the issue, acts to legally bar interim bargaining until bargaining for the next contract. If I understand you, please furnish to me legal authority on point. It would surprise us: such a rule would compel parties to resist raising some issues at bargaining for fear that, if they can't get to an agreement, the other side could bar it being brought up again for the life of the contract, as you wish to do here. Such a rule would have the effect of restricting, not encouraging, the free and open discourse that collective bargaining is intended to produce.

"The provision that controls is Sec. 1 of Art XVII that explicitly permits employers to compel bargaining on mandatory subjects between contract negotiations. That provision incorporates the process laid out in ORS 243.698.Accordingly, Council 75 formally demanded to bargain this issue in it's letter to us in late May. I've attached a scanned copy for your convenience. You provide no authority showing that you may now reverse course and simply refuse to bargain. Please let me knovv if I am misinterpreting your response.

"The 90 day bargaining window stated in the statute elapses on August 18, 2009. Please accept this as the County's continuing demand to bargain implementation of the impacts in good faith by promptly replying with proposed meeting times for your team. Otherwise, the county has met its obligations on this matter."

36. The parties met for another bargaining session on August 17, 2009. During this meeting, Steiner again told the County that he did not believe the Union was required to bargain over the drug-testing policy and that the Union intended to file an unfair labor practice complaint. After the meeting, Hoskins sent Steiner an e-mail, stating "I am looldng forward to the next steps. I am assuming that the union agrees to

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extend the 90 day bargaining to accommodate another session to build on the progress we experienced today because we agreed to have Valerie [Sanchez] schedule another meeting. Is that 1:orrect?" Sanchez and Steiner subsequently exchanged e-mails attempting to set another meeting in either September or October. They never scheduled an additional meeting, however.

37. On August 19, 2009, the Union filed this unfair labor practice complaint.

38. Sometime prior to September 4, HHSD Assistant Director Gaffney realized that the parties were not going to promptly resolve the issue of drug-testing. Gaffney consulted with HHSD Director Rockstroh about the Department's obligations under the Drug-Free Workplace Act. As a result, the Department prepared materials for distribution to HHSD employees regarding the APM Drug-Free Workplace Procedure and provided training to HHSD supervisors on those materials. Supervisors were told during the training that the drug-testing portion of the procedure did not apply to the Union-represented employees.

39. On September 4, 2009, Gaffney telephoned Steiner and left a message notifying him that HHSD would give employees a copy of the Lane Manual policy and APM procedure and would also require that employees sign a statement regarding their receipt of and obligation to comply with the requirements of the APM Dn1g-Free Workplace Procedure. Gaffney also sent Steiner an e-mail, to which she attached the materials the Department intended to provide to employees, stating:

"This is to follow up on my phone message to you earlier this week about H&HS's [HHSD's) continuing efforts to meet our federal mandates around dn1g-free workplace. Next week Rob [Rockstroh] will be sending an email to employees, and then supervisors will be following up with the material attached below. I wanted you to have a copy in case you get questions from members. The supervisors are all clear that this is NOT about drug testing. This is only about the policy and education requirements of the Drug Free Workplace Act. Please let me know if you have any questions." (Emphasis in original.)

40. Not long after September 4, HHSD supervisors met with employees and gave them a fact sheet on the effects of alcohol and drugs, a copy of the Lane County Manual Drug-Free Work Place Policy, and the APM Drug-Free Work Place Procedure. The cover sheet for the information provided to the employees included statements that the employees had been informed about the County's policy and procedures, resources for drug issues, the dangers of dn1g use, penalties related to violation of the County's

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policy, and the employee's need to comply with the policy. The cover sheet also contained a signature line and an explanation that by signing this line, an employee indicated that the employee had received copies of the County policies and procedure and agreed to comply with them. When providing this information to employees, HHSD supervisors directed employees to sign the cover sheet.

41. The Union notified employees that they should sign the cover sheet attached to the materials provided by the County if so directed. After receiving the materials, however, several employees contacted the Union, explaining that they were confused. Although the employees were told that the dn1g-testing procedures would not apply to them, the information provided by HHSD indicated that the procedures did. On October 12, 2009, after Steiner notified HHSD Director Rockstroh about the employees' concerns, Rockstroh sent an e-mail to Steiner and HHSD employees confirming that the drug-testing procedures did not apply to them because the County was still negotiating drug-testing with the Union.

42. After the Union filed this unfair labor practice complaint, Hoskins searched the County's bargaining minutes and other documents and found no record that showed the parties had discussed drug-testing during the bargaining for the 2008-11 agreement. Hoskins did find documentation that the parties had discussed drug-testing during the October 31, 2007, JLMRC meeting.

CONCLUSIONS OF LAW


2. The County did not violate ORS 243.672(l)(e) by notifying the Union of its intent to implement a Drug Free Work Place Policy on or about May 20, 2009, after failing to pursue bargaining or failing to bargain in good faith over this issue during negotiations for a successor collective bargaining agreement.

DISCUSSION

ORS 243.672(1)(e) makes it an unfair labor practice for a public employer to refuse to bargain in good faith with the employees' exclusive bargaining representative. The Public Employee Collective Bargaining Act (PECBA) contains two different bargaining procedures. ORS 243. 712-. 756 describes the employer's duty to negotiate a collective bargaining agreement (or its successor). For strike-permitted employees, such as those at issue here, the process includes 150 days of good-faith bargaining, 15 days of mediation, and a 30-day cooling off period before the employer can implement its final offer. ORS 243.712. ORS 243.698 describes the expedited bargaining process the parties must use if the bargaining obligation arises during the life of a collective

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bargaining agreement. For strike-permitted employees, this statute generally requires that the employer notify the union of a proposed change in employment relations and engage in no more than 90 days of bargaining before implementing the change. ORS 243.698(4).

We explained the difference between these two bargaining processes as follows:

"[T]he legislature intended ORS 243.698 to provide a relatively expeditious process to address those mid-contract change proposals which arise outside the normal bargaining period. The expedited process was not intended to override the regular bargaining process. Put another way, the expedited process applies when the employer's bargaining obligation arises because of its desire to make a mid-term change in working conditions, and no other avenue exists for resolving the dispute.

"* * * * *

"Where the parties are already engaged in bargaining for a successor contract, the employer has a suitable process available to it to address any proposed changes. The regular bargaining process would be undermined if the employer ·was allowed to segregate out a particular (and usually difficult) issue for expedited treatment. It would also promote inefficiency to require the parties to conduct separate expedited and regular negotiations concurrently.

"The expedited process of ORS 243.698 must be limited to the situation dictated by its text and context; that is, where the employer's duty to bargain ou[y arises because of its desire to make a mid-term change. Where successor negotiations are going on, the employer's duty to bargain is already governed by ORS 243.672(l)(e) and 243.712-756." In the Matter of the Petition for Declarat01y Ruling Filed by the Sanqy Union High School District, Case No. DR-4-96, 16 PECBR 699, 705 (1996). (Emphasis in original.)

The Union alleges that the County misused the expedited bargaining process, asserting that the County bargained in bad faith in violation of subsection ( 1) ( e) when it "subverted the bargaining process by withdravving a drug testing proposals [sic] during successor bargaining, holding it in reserve and informing the Union of its intent to implement the same policy one week after signing the collective bargaining agreement." According to the Union, "[t]he County acted with intent and foresight in withdrawing its proposal during successor bargaining and trying to implement the same proposal

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using expedited bargaining under ORS 243.698. The County knew that the Union would be disadvantaged using this type of bargaining." Id. The question before us is whether the County's initiation of expedited bargaining under ORS 243.698, immediately after the execution of its successor agreement, over an issue that had been raised during the negotiations for that agreement, violated 0 RS 243. 6 72 ( 1) ( e). We begin our analysis of the Union's charges by considering the nature and extent of an employer's good faith bargaining duty.

There are two types of bad-faith bargaining. An employer may violate subsection (l)(e) either by "[c]onduct so inimical to the bargaining process that it amounts to a per se violation of the duty to bargain in good faith, or by the totality of conduct during the period of negotiations that indicates an unwillingness to reach a negotiated agreement." Amalgamated Transit Union, Division 757 11. Rogue Vallry Transpo1tation District, Case No. UP-80-95, 16 PECBR 559, 583, adhered to 011 recons, 16 PECBR 707 (1996). Here, the complaint does not allege (and the Union does not argue) that the County committed aper se violation of ORS 243.672(l)(e). Instead, the Union asserts that the totality of the County's conduct in negotiations about its Drug-Free Work Place Policy violated subsection ( 1) ( e).

Good-faith bargaining under ORS 243.672(l)(e) requires that a party do more than go through the motions of bargaining; it must come to the table with a sincere willingness to negotiate an agreement. ORS 243. 65 6( 5); Hood River Empll!Yees Local Union No. 2503-2/AFSCNIE Council 75/AFL-CIO v. Hood River County, Case No. UP-92-94, 16 PECBR 433, 451-52 (1996), AWOP, 146 Or App 777, 932 P2d 1216 (1997); Lane Unified Bargaining Council v. McKenzie School District #68, Case No. UP-14-85, 8 PECBR 8160 (1985). In a "totality of conduct" or surface bargaining case, we "determine whether the party engaged in behavior intended to frustrate an agreement; in other words, [we] judge the overall quality of bargaining." Lincoln County Empll!Yees Association v. Lincoln County and Glade, District Attomry, Case No. UP-42-97, 17 PECBR 683, 704 (1998) (emphasis in original). We typically consider the following factors to determine whether a party's conduct constitutes unlawful surface bargaining:

"(1) whether dilatory tactics were used; (2) the content of a party's proposals; (3) the behavior of a party's negotiator; (4) the nature and number of concessions made; (5) whether a party failed to explain its bargaining positions; and ( 6) the course of negotiations." Oregon AFSCME Council 75, Local 2936 v. Coos County, Case No. UP-15-04, 21 PECBR360, 393 (2006).

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Particularly important to our consideration of a surface bargaining charge is the employer's intent. As we explained in McKenzie School District, "the subjective intent, or bad motive, of an employer is the very gravamen of a surface bargaining charge." 8 PECBR at 8208.

The Union does not contend that County negotiators behaved in an offensive manner, or made unduly harsh or unreasonable proposals. Nor does the Union assert that the County failed to explain its proposals, refused to make concessions, or engaged in a course of negotiations that was hurried or perfunctory. The Union's allegations concern the County's dilatory tactics in bargaining its Drug-Free Work Place Policy. The Union asserts that the County purposely did not pursue bargaining about the Drug-Free Work Place Policy in successor contract negotiations, 13 but waited until after the parties executed their agreement to do so. The Union notes that one week after the parties executed their collective bargaining agreement, the County notified the Union that it intended to implement this policy. According to the Union, the County delayed notice of its proposed actions until the parties completed the 150-day bargaining process for their successor agreement to force bargaining over the d1ug policy into the less rigorous 90-day expedited process. We consider these Union allegations under the specific standards we have developed to determine if an employer's actions indicate conduct so dilatory as to constitute bad-faith bargaining.

A party engages in unlawful dilatory conduct if it uses tactics that might unreasonably impede negotiations. Deliberate delay which fnistrates or obstructs the PECBA bargaining process is contrary to the intent of the statutory scheme and evidence of bad faith bargaining. McKenzie School District, 8 PECBR at 8197. We determine whether a delay constitutes bad faith bargaining based on the circumstances of each case. Portlaud Association of Teachers v. P01tland School District No. 1/, Case Nos. UP-35/36-94, 15 PECBR 692, 726 (1995).

In determining if an employer's negotiations tactics are so dilatory as to impede the PECBA process, the difference between the two bargaining processes is significant. An employer cannot use the expedited bargaining process to undermine successor contract negotiations. As discussed above, bargaining under ORS 243.698 arises only when an employer wishes to make a change in employment relations during the life of

13We reject the Union's contention that the County bargained in bad faith by proposing the Drug-Free Work Place Policy in successor contract negotiations and withdrawing it. The evidence does not support this contention. AB discussed in our Findings of Fact, the first (and only) mention of the Drug-Free Work Place Policy occurred on July 24, 2009. On that date, Hoskins e-mailed Steiner to explain that he hoped to resolve the Doe incident without disciplinary action and wanted to negotiate the County's Drug-Free Work Place Policy after the successor contract was resolved.

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a contract. When an employer is already engaged in successor negotiations, its duty to bargain is governed by ORS 243.712-.756. In the Matter ef the Petition for a Declarato1y Ruling Filed by the Sani(y Union High School District, Case No. DR-04-96, 16 PECBR 699, 705.

Here, the Union alleges that the timing of the County's announcement that it planned to implement its Drug-Free Work Place Policy is evidence of bad-faith, dilatory tactics. We agree that the timing of the County's announcement of the planned implementation of its drug policy is suspicious. In July 2008, during the Doe incident, the County understood and acknowledged the need to bargain about the applicability of its Drug-Free Work Place Policy to Union bargaining unit members. Despite this realization, the County did not immediately pursue bargaining about this matter, even though the parties were engaged in successor contract negotiations. Instead, the County waited until one week after the parties executed their collective bargaining agreement to announce plans to implement the Drug-Free Work Place Policy. The County offered no reason for its actions. The County's actions suggest that it sought to put itself in a better bargaining position by waiting to pursue negotiations about a single issue under the more abbreviated expedited bargaining process. 14

On its face, then, the County's conduct suggests an attempt to obstruct orderly PECBA negotiations by waiting to pursue bargaining about a single issue until the parties settled their contract and the County could use the expedited bargaining process. Our analysis does not end here, however. To determine if the totality of an employer's conduct in negotiations indicates bad faith bargaining, we analyze all relevant circumstances. As noted above, we particularly look to the employer's motive and intent, "the very gravamen of a surface bargaining charge," as evidence of an unwillingness to bargain. McKenzie School District, 8 PECBR at 8202.

Here, the County proposed to delay bargaining about its Drug-Free Work Place Policy for two reasons: it was occupied with the Doe matter and felt unprepared to raise the issue of drug testing in successor contract negotiations; and, it did not want to

14As Board Member Gamson noted in his dissent in Oregon School Employees Association v. Clatskanie School Dist1ict, Case No. UP-9-04, 21 PECBR 599, 627 (2007), AWOP, 219 Or App 546, 183 P3d 246 (2008), if the employer had raised the issue "in successor bargaining when the entire contract was open for negotiation, it would have been part of the larger mix of issues in dispute and subject to the type of 'horse trading' that is characteristic of good-faith bargaining. The parties could have explored a wide range of potential trade-offs and compromises, making agreement * * * more likely. Instead, the District isolated the * * * issue in expedited bargaining* * * ."

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introduce a new proposal that might complicate already contentious negotiations. 15

Thus, the County's proposal to postpone negotiations about its Drug-Free Work Place Policy resulted from a desire to devote attention to a sensitive employee matter and to avoid further conflict in bargaining. The County specifically told the Union it wanted to postpone negotiations about its Drug-Free Work Place Policy. In his July 25, 2008, e-mail to Union negotiator Steiner, County manager Hoskins explained that he was "interested in bargaining the implementation of a policy with the union outside of the current bargaining sessions." The Union did not respond. Had the Union wanted to bargain about the County's Dn1g-Free Work Place Policy during successor contract negotiations, it could and should have objected to the County's plan and insisted that negotiations about the policy immediately begin. The Union did not do so, however. 16

To decide if the totality of circumstances demonstrate bad faith bargaining, we weigh the timing of the County's proposal to implement the Drug-Free Work Place Policy and the lack of explanation for it against the County's motives for postponing bargaining and the Union's failure to respond to the County's announcement of its plan. Although it is an extremely close question, our weighing of the relevant factors persuades us that the County's conduct regarding the proposed implementation of its Drug-Free Work Place Policy demonstrates no deliberate intent to frustrate the bargaining process in violation of subsection (l)(e). 17

15ln fact, the Union apparently agreed with the County that introducing a proposal concerning the drug-free workplace policy into successor contract negotiations would significantly (and presumably negatively) affect these negotiations.

16Since the County did not plead that the Union waived its right to bargain over the policy by not responding to Hoskins' e-mail, we do not address that issue. Waiver is an affirmative defense which must be pied by the respondent. Oregon School Empliryees Association v. Mo1T011' School District, Case No. UP-22-95, 16 PECBR 299, 300 n 1 (1996), AWOP, 142 Or App 595, 922 P2d 729, 730, rel' den, 324 Or 394, 927 P2d 599, 600 (1996). However, we are not precluded from considering evidence that the Union did not object to the County's request to delay bargaining in evaluating the totality of the County's conduct.

17 As additional evidence of dilatory bargaining tactics, the Union cites the County's initiation of the expedited bargaining process at a time when Union representative Steiner was on leave. According to the Union, the County's conduct delayed the parties' negotiations so that half of the 90-day period had elapsed by the date of the parties' first bargaining session. The timing of the County's notice to the Union about the proposed implementation of the drug-free workplace policy is unfortunate. The Union exaggerates the impact of this timing on the bargaining process, however. The County notified the Union on May 20 that it wanted to

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Based on the totality of circumstances, we conclude that the County did not violate ORS 243.672(l)(e) by engaging in bad faith surface bargaining regarding its Drug-Free Work Place Policy. We will dismiss the complaint.

ORDER


DATED this _:Z73day of Febmary, 2011.




negotiate the drug-free workplace policy; Steiner returned to work by the second week of June. Any delay resulting from Steiner's absence was thus closer to 19 days, not 45. In addition, the Union waited to meet until July 1, even though the County proposed earlier dates for bargaining.

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OF THE

STATE OF OREGON

Case No. CC-06-10

(REPRESENTATION PETITION)

LABORERS' INTERNATIONAL UNION ) OF NORTH AMERICA, PROFESSIONAL ) LAW ENFORCEMENT OFFICERS ) ASSOCIATION, AURORA, )

) Petitioner, )

) v. )

) CITY OF AURORA, )

) Respondent. )

~~~~~~~~~~~~~~~~)

ORDER ON RESPONDENT'S MOTION FOR RECONSIDERATION

Lon Holston, Field Representative, Laborers' International Union of North America, Local 483, Portland, Oregon, represented Petitioner.

Dennis E. Koho, Attorney at Law, Koho & Beatty, PC, Keizer, Oregon, represented Respondent.

On December 7, 2010, this Board issued an Order holding that City of Aurora "Professional Law Enforcement Officers, Patrol" bargaining unit was an appropriate unit. We subsequently certified the unit on December 10, 2010.

On January 12, 2011, Respondent City of Aurora (City) filed a Motion to Reconsider our December 7, 2010 Order and the December 10, 2010 Certification. Petitioner Laborers' International Union of North America, Professional Law Enforcement Officers Association, Aurora (Association) provided a timely response.

DISCUSSION

In its Motion, the City asserts that effective January 1, 2011, it reduced the number of patrol officers it employs to a total of one officer. Since one employee does not constitute an appropriate bargaining unit, the City requests that we reconsider our Order and stay the Certification. (City's Motion for Reconsideration.)

Petitions for reconsideration must be filed no later than 14 days from the date of service of the order. OAR 115-010-0100. This Board issued the Order in this case on December 7, 2010, and the unit was certified on December 10, 2010. To be timely, the City must have filed its motion by no later than December 21, 2010. The City filed its motion on January 12, 2011, far beyond the 14 days allowed under our rules. The motion is untimely and will be dismissed.

Shortly after the Board certified the two-member bargaining unit, the City laid off one bargaining unit member. The City argues that because of this reduction, the City is not required to recognize or bargain with the Association. Although not properly before us, we address these issues solely to provide the parties with guidance.

1. What effect does the reduction of the bargaining unit to one employee have on the certification?

OAR 115-025-0015 provides that Board certification of an exclusive bargaining unit serves "as a bar to an election for a period of one year from the date of certification unless:

" (a) The certified labor organization has dissolved or become defunct;

"(b) A schism developed in the certified labor organization so that it cannot effectively represent bargaining unit members;

" ( c) The size of the bargaining unit has fluctuated radically within a short period of time; or

"(d) Other changed circumstances warrant waiver of the certification bar."

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One of the purposes of a one-year certification bar is to insure the parties a reasonable time in which to bargain without outside interference or pressure, such as a rival petition. Salem Education Association v. Salem Sclwol District 24/, Case No. C-241-81, 6 PECBR 5373, 5386-5387 (1982); Mar-Jae Poultry Compmry, Inc. and Local 454 Amalgamated Meat Cutters and Butcher Workmen of America, AFL-CIO, 136 NLRB 785 (1962), and GI/Ya Food of Fla., 347 NLRB No. 103 (2006) (absent unusual circumstances, an employer will be required to honor a certification for a period of one year).1

A certification, however is not everlasting. Either party may petition this Board for revocation at any time. We will normally order revocation upon a showing that no collective bargaining agreement is in effect and the labor organization either disclaims interest or is defunct.2 OAR 115-025-0009. Washington County Prosecuting Attonuy's Association v. Washington County, Case No. UC-26-00, 18 PECBR 721 (2000).

An employer may also appeal this Board's post-election certification order to the court of appeals. Linn-Benton-Lincoln EducationAssociation v. Linn-Benton-LincolnESD, 152 Or App 439, 954 P2d 815 (1998).

2. What effect does a reduction to one employee have on an employer's duty to bargain?

Normally an employer's duty to bargain in good faith commences at the time of certification by this Board. Faculty Members of Oregon College of Education v. Oregon College of Education Federation of Teachers/AFT and Oregon College of Education, Case No. C-162-77, 3 PECBR 2007 (1978). However, like the National Labor Relations Board (NLRB) we have consistently held that the principle of collective bargaining presupposes that there

1The US Supreme Court has held that "unusual circumstances" occur when 1) the certified union dissolved or became defunct; 2) as a result of schism, substantially all the members and officers of the certified union transferred their affiliation to a new local or international; and 3) the size of the bargaining unit increased radically within a short time. Brooks v. National Labor Relations Board, 348 U.S. 96, 75 S. Ct 176 (I 954).

2A union is defunct if it is unable or unwilling to represent the employees. However, mere temporary inability to function does not constitute defunctness nor is the loss of all members in the unit the equivalent of defunctness if the representative otherwise continues in existence and is willing and able to represent the employees. Hershry Chocolate Corp., 121 NLRB 901, 911 (1958).

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is more than one employee who desires to bargain. Oregon AFSCME Council 75 v. City of Hines, Case No. C-15-80, 5 PECBR 2982, 2984 ( 1980). Also see American Radio Ass'11, AFL-CIO, 258 NLRB 1251, 1257-58 (1981) (while union may lawfully represent an employee in a one employee unit, employer is not required to bargain); Panis, d/b/a D &B Masomy, 275 NLRB 1403, 1408 (1985) (if employer employs one or fewer unit employees on a permanent basis, the employer may withdraw recognition from union); Foreign Car Cente1; Inc., 129 NLRB 319, 320 (1960) (unit consisting solely of a single employee is inappropriate for collective bargaining).

Accordingly, an employer has no duty to bargain with a union while there is only one person in the bargaining unit.

ORDER

Respondent's Motion for Reconsideration is dismissed.

Dated this Ii ~~L- day of March, 2011.

*Paul B. Gamson, Chair



* Chair Gamson Concurring

I agree that the petition for reconsideration is untimely and should be dismissed. The remainder of the majority order is unnecessary an ill con · ered and I do not join it.

Paul B. Gamson, Chair

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OF THE

STATE OF OREGON

Case No. UP-053-10


TEAMSTERS LOCAL 223, ) ) ) ) ) ) ) ) ) )

Complainant,

v.

CITY OF MEDFORD,

Respondent.

RULING ON COMPLAINANT'S PETITION FOR RECONSIDERATION

~~~~~~~~~~~~-)

On January 14, 2011, this Board issued an Order which concluded that the City of Medford (City) did not unlawfully change the status quo in violation of ORS 243.672(l)(e) when it changed health insurance benefits for Teamsters Local 223 (Union) bargaining unit members. We held that because the Jackson County Circuit Court ordered the City to make the change at issue, the City was not required to bargain about a decision it could neither control nor countermand. 24 PECBR 169.

On January 25, the Union petitioned for reconsideration of our Order. The City responded to the petition on January 31, 2011. The City attached the following four documents to its response: (I) a July 28, 2010, letter from the City's attorney to the attorneys for the plaintiffs in the Circuit Court litigation at issue here; (2) a February 16, 2010, letter from City Human Resources Director Douglas Detling to Union representative Brent Jensen; (3) an April 27, 2010, letter from Detling to Jensen; and (4) a June 8, 2010, letter from Jensen to Detling. None of these documents were included in the stipulated record.

This Board vvill generally not reopen a record for submission of additional evidence unless the evidence offered is material to the issues and was unavailable at the time of hearing, or there is some other "good and substantial reason" why the evidence

was not presented at the hearing. Cascade Bmgaining Council v. Bend-LaPine School District No. 1, Case No. UP-33-97, 17 PECBR 609, 610 (1998). Although this case was presented to this Board on stipulated facts and without a hearing, we apply the same standard for reopening a record here as we do in a case where a hearing is held. The evidence the City seeks to offer was available at the time the parties presented their stipulated facts and written legal arguments to the Board. The City has provided no reason why the evidence could not have been offered at that time. Accordingly, we will not admit the four exhibits submitted by the City in its January 31 response to the petition for reconsideration.

Turning to the merits of the Union's petition, we note that we generally grant reconsideration in cases such as this, where no Recommended Order has been issued. Oregon AFSCME Council 75, Local 3336 v. State of Oregon, Department of Environmental Quality, Case No. UP-47-06, 22 PECBR 54 (2007). Accordingly, we grant reconsideration to address a new claim and a new argument raised by the Union. The remainder of the Union's petition concerns issues we considered and discussed in our Order, and we will not repeat that discussion here.

In its petition for reconsideration, the Union alleges that even if the City had no duty to bargain about its decision to change bargaining unit members' insurance benefits, it had a duty to bargain the impacts of that decision. In support of its contention the Union cites Clackamas County Emplqyees Association v. Clackamas County, Case No. UP-38-03, 20 PECBR 906 (2005), where we stated that although a public employer may not be required to bargain about a decision over which it has no control, it may nonetheless be required to bargain about the impacts of that decision.

This allegation is novel; the Union did not raise it in its unfair labor practice complaint or argue it in its brief. We generally refuse to consider a claim that was not raised in a complaint or argued in a brief. IAFF Local 890 v. IOamath County Fire District, Case No. UP-16-00, 19 PECBR 533, 548 n 11 (2001). Even if the Union's claim had been properly raised, however, we would conclude that the City had no obligation to bargain about the impacts of its decision to change insurance plans.

According to the stipulated facts, the Jackson County Circuit Court ordered the City to change to a new health insurance plan, and for calendar year 2011, pay all out-of-pocket expenses incurred by Union bargaining unit members as a result of the change. The court's order was comprehensive, covering both the selection of a particular insurance plan and the impacts of that selection on Union bargaining unit members. Stated another way, the court's order left nothing for the parties to bargain about in regard to 2011 insurance benefits. The City was not required to negotiate over the impacts of the change in insurance plans because it had no control over these impacts.

The Union also argues that we erred by suggesting that the parties can and should challenge the Jackson County Circuit Court's order in the Oregon Court of Appeals. According to the Union, this is impossible because it was not a party to the Circuit Court litigation. The Union's argument misses the point, however. If the Union believes that we erred by refusing to order the City to act contrary to the Circuit Court's order, it can appeal our Order to the Oregon Court of Appeals.

Ruling

Reconsideration is granted. We adhere to our original Order.

. 1L~ DATED this a day of March, 2011.

~' Paul B. Gamson, Chair


A~1l~v\/ fi2~A~ Susan Rossiter, Board Member



OF THE

STATE OF OREGON

Case No. FR-03-10


TAMI GRISHAM-TITTLE,

Complainant,

v.

) ) ) ) ) )

AMERICAN FEDERATION OF ) STATE, COUNTY and MUNICIPAL ) EMPLOYEES, LOCAL 1246-3, )

and

STATE OF OREGON, DEPARTMENT OF ADMINISTRATIVE SERVICES,

Respondents.

) ) ) ) ) ) ) )

~~~~~~~~~~~~~-)


None of the parties objected to a Recommended Order issued on November 30, 2010, by Administrative Law Judge (ALJ) Peter A. Rader following a hearing on September 1 and 2, 2010, in Salem, Oregon. The record closed on September 20, 2010, following receipt of the parties' post-hearing briefs.

Richard E. Slezak. P.C.,Attorney at Law, Salem, Oregon, represented Complainant Tami Grisham-Tittle.

Allison Hassler, Oregon AFSCME Legal Counsel, Eugene, Oregon, represented Respondent American Federation of State, County and Municipal Employees.

Stephen D. Krohn, Senior Assistant Attorney General, State of Oregon, Department of Justice, Salem, Oregon, represented Respondent State of Oregon, Department of Administrative Services.

On March 9, 2010,. Complainant Tami Grisham-Tittle (Grisham) filed this unfair labor practice complaint against the American Federation of State, County and Municipal Employees, Local 1246-3 (Union) and the State of Oregon (State), Department of Administrative Services (Department or DAS) following her dismissal from State service. She alleges the Union violated its duty of fair representation under ORS 243.672(2)(a) and (d) 1 by arbitrarily failing to investigate or evaluate her grievance, by failing to pursue her grievance to arbitration, and by failing to inform her of its decision not to pursue her grievance to arbitration.

The complaint further alleges that the Department violated ORS 243.672(l)(f) and (g) by arbitrarily and unlawfully discharging Grisham, by failing to impose progressive discipline, and by failing to respond to the grievance at step 4 of the grievance process. Grisham seeks reinstatement with back pay or, in the alternative, asks that she be allowed to pursue her grievance to arbitration at step 5 of the grievance process. The Union and Department timely filed answers in compliance with OAR 115-035-0035.

Prior to hearing, the case was bifurcated to hear the claims against the Union first. 2

The issue is:

Did the Union violate ORS 243.672(2)(a) in investigating and evaluating Grisham's grievance, in failing to take the grievance to arbitration, and in failing to inform Grisham of its decision not to proceed to arbitration?

'We have previously held that a represented employee's right to seek relief against a union is limited to claims under ORS 243.672(2)(a). Mengucci v. Fai111iew Training Center and Teamsters Local 223, Case Nos. C-187/188-83, 8 PECBR 6722, 6731 (1984). Accordingly, we dismiss the allegation that the Union's actions violated ORS 243.672(2)(d).

2In our Conclusions of Law, we hold that the Union did not violate its duty to fairly represent Grisham and dismiss her claim against the Union. As explained in our Conclusions of Law, we also dismiss Grisham's claim against the Department.

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RULINGS

1. The ALJ properly ruled that the Department's counsel could act as the Union's co-counsel at hearing. The Department's interest in having the Union prevail is equal to the Union's because, if it does, the case against the Department is automatically dismissed.1\1.engucci, 8 PECBR at 6734.

In a case where complainants alleged the union violated its duty to fairly represent them, we permitted the state to present the union's case, even though the union was unable to present evidence because it failed to file a timely answer. Teeter and Keepers v. Service Empll!Jlees International Union, Local 503, and State of Oregon, Oregon Health Licensing Agemy, Case No. FR-04-09, 23 PECBR 831 (2010). We explained:

"* * * [I]n a hybrid duty of fair representation case such as this, Complainant must prove her case against the Union before she can proceed against the State; if she fails to prove her claim against the Union, we will automatically dismiss the case against the State. In other words, establishing that the Union did not violate its duty of fair representation is a complete defense to the claim against the State. The State is entitled to present this defense to its own liability even if the Union does not participate." Id. at 835 (citations omitted).

Our reasoning in Teeter is persuasive when applied to the facts here. If, in a hybrid duty of fair representation case, the State is entitled to defend itself by presenting the union's entire case-in-chief, it is certainly entitled to serve in a lesser role-that of co-counsel.


FINDINGS OF FACT

1. The Union is a labor organization under ORS 243.650(13), and the exclusive representative of an approximately 700-member bargaining unit of State employees. The Department is a State agency and public employer under ORS 243.650(20).

2. The Department and the Union were parties to a collective bargaining agreement (Agreement) which was in effect from July 1, 2007 through June 30, 2009. TheAgreement covers the Union-represented employees working in the State Operated Community Program (SOCP). At all relevant times, Grisham was a member of the Union bargaining unit.

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The Parties' Agreement

3. Article 14 of the 2007-2009 Agreement between the Union and Department provided for a 5-step grievance process which culminated in binding arbitration at step 5.

4. Section 5 of Article 14 of the Agreement entitled "GRIEVANCE PROCEDURE" provided:

"Section 5. Arbitration. a. Any grievance, having progressed through the steps as

outlined in this Agreement and remaining unresolved following Department of Administrative Services response, may be submitted by the Union to arbitration for settlement. To be valid, a request for arbitration must be in writing and mailed or delivered to the Department of Administrative Services within fifteen ( 15) calendar days of the receipt of the response from the Department of Administrative Services with a copy to the Employment Relations Board requesting a panel of five (5) Oregon arbitrators be sent to each side.

"Failure to file for arbitration within the specified fifteen (15) calendar day period shall constitute forfeiture of claim and the case shall be considered closed by all parties."

5. Article 15 oftheAgreemententitled "DISCIPLINEANDDISCHARGE," provided:

"Section 2. A written predismissal notice shall be given to a regular-status

employee against whom a charge is presented. Such notice shall include the known complaints, facts and charges, and a statement that the employee may be dismissed. The employee shall be afforded an opportunity to refute such charges or present mitigating circumstances to the Appointing Authority or his/her designee at a time and date set forth in the notice, which date shall not be less than seven (7) calendar days from the date the notice vvas received, unless an earlier time is requested by the employee and agreed to by the Program. The employee shall be permitted to have an official representative present. The Appointing Authority may suspend the employee with pay or without pay or the employee may be allowed to continue work, as specified with the predismissal notice.

- 4 -

"Section 3. a. The dismissal of a regular-status employee may be appealed

by the Union to the Department of Administrative Services, Labor Relations Unit, pursuant to Article 14, Section 2, Step 4. The appeal must state the reasons for the appeal and be submitted to the Labor Relations Unit in writing within ten (10) calendar days from the effective date of the dismissal. If not resolved at that level and properly appealed to arbitration pursuant to the grievance procedure, such appeal shall be heard by the arbitrator, and the final decision and order of the arbitrator shall be made thirty (30) calendar days following the close of the hearing."

Factual Background

6. Grisham was hired in 1998 as a full-time habilitative training technician for SOCP. SOCP, which is part of the Seniors and People with Disabilities cluster within the Department of Human Services (DHS), operates 32 group homes in eight counties for developmentally disabled adults who require significant assistance with their daily activities. During her employment at SOCP, Grisham worked as an habilitative training technician at various facilities, including Eliot, Hawthorne, Ina, and Cade group homes.

7. Section 3 of Grisham's job description, which she last signed on August 21, 2008, identifies her general duties as providing training and/or assistance to residents with hygiene, nutrition, housekeeping, behavioral management, safety, health care, and other daily activities. Sections 4, 5, and 10 of her job description list frequent driving and maintaining a valid driver's license as requirements of her job.

8. In March 2006, Grisham was arrested for Driving Under the Influence of Intoxicants (D UII), which resulted in a 90-day suspension of her driver's license. As part of the DUII process, she entered a diversion program where she was diagnosed as alcoholic.

9. At the time of her 2006 arrest, Grisham was worldng at the Ina group home. As a result of her license suspension, she was not permitted to drive a State vehicle until her driving privileges were restored. She transferred to the night shift, which allowed her to keep her job. At that time, workers in the Ina group home were not required to drive at night. Grisham had no previous disciplinary problems.

10. By letter to Grisham dated July 13, 2006, Department of Human Resources (HR) Manager Terri Millsap acknowledged that Grisham's license was reinstated and that she was now permitted to drive a State vehicle. The letter also states:

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"Please understand that driving is an essential function of your position as a Habilitative Training Technician 2 at Ina group home. Any further convictions, which result in your inability to drive, as outlined in DHS policy 50.200. l lA,3 will result in commencement of the pre-dismissal process."

11. DHS Policy AS-080-005 provides, in relevant part:

"7. Employees and other individuals who are required to drive in order to perform their job duties must have an acceptable driving record. Examples of offenses that may render a driving record unacceptable include but are not limited to:

"a A major traffic offense in the last 24 months. This can include reckless driving, driving under the influence of intoxicants * * *

"b. A felony revocation of driving privileges or felony or misdemeanor driver license suspension vvithin the last 24 months."

Facts Giving Rise to the Complaint

12. In October 2008, Grisham was working as an Habilitative Training Technician II at Cade group home, where her duties included regularly driving clients to appointments.

13. On October 18, 2008, Grisham was arrested for DUII, reckless driving, failure to carry proof of insurance, and failure to maintain a safe distance from an emergency vehicle. She was not on duty at the time, but her arrest resulted in an immediate 90-day suspension of her driver's license.

14. The next day, Grisham contacted 26-year Union Council Representative Colleen Savage, who advised her to contact her supervisor as soon as possible. As a former Union steward, Grisham had known Savage for ten years.

3DHS safe driving policy 50.200.1 lA cited by Millsap was renumbered to AS-080-005 in 2003.

- 6 -

15. Savage's duties as a council representative include assisting members with grievances and interpersonal relations, bargaining contracts, and representing members during grievance proceedings at the Department level. The two women spoke again the following day.

16. On October 21, 2008, Grisham discussed her arrest with Terry Walker, her supervisor at Cade group home. Walker told her they would have to modify her job duties to accommodate this development. Part of the accommodation was to have another staff person drive Grisham on her clients' appointments. Driving at night was a required job function at Cade group home so Grisham could not avoid driving by switching to the night shift, as she did in the past.

1 7. In a letter dated October 23, 2008, HR Manager Millsap informed Grisham that she was restricted from driving either a State vehicle or her own personal vehicle while conducting State business.

18. On November 19, 2008, the Marion County Circuit Court granted Grisham's hardship application so that she could drive to and from work. She was required to have an Interlock device installed on her personal vehicle, which is a computerized breath analyzer connected to the ignition system. It prevents someone from operating a vehicle if the alcohol content in the driver's breath exceeds a preset limit.

19. On January 20, 2009, Grisham pled guilty to DUII and reckless driving and was given a choice of 180 hours of community service or 48 hours in jail. She chose jail and went back into treatment for her alcoholism. The Court suspended her driver's license until January 20, 2010, which added a year to the previous 90-day suspension, although she was permitted to drive to and from work with the Interlock device on her personal vehicle. She notified her employer of the additional one-year license suspension.

20. By letter dated April 23, 2009, HR Manager Millsap told Grisham that she was subject to dismissal for failing to maintain an acceptable driving record and for failing to meet the requirements to operate a State vehicle as stated in her position description. The letter, which set out the facts and the driving requirements of her job, advised Grisham that a pre-dismissal meeting was scheduled for May 11, 2009, to allow her to present mitigating circumstances.

21. Grisham contacted Savage and the two met on at least two occasions prior to the pre-dismissal meeting to discuss how to prepare for it. Documents they compiled included a summary of Grisham's work history, an explanation of her current status, a list of options for her employer to consider, a letter of apology, and a statement of support from her co-workers.

- 7 -

22. Savage accompanied Grisham to the pre-dismissal meeting at which HR Manager Millsap, Program Administrator Laura Traeger, and Union Recording Secretary Rose Darcey were present. Savage presented documents and spoke on Grisham's behalf, but the prevailing sentiment at the meeting was concern about safety issues, particularly the Interlock device required for Grisham to operate a State vehicle. Although no decision was made at the time, Grisham left the meeting with the impression that she would be fired.

23. On June 12, 2009, Grisham's supervisor Walker met her at work and handed her a letter discharging her. Grisham promptly left the premises but contacted Savage later that day to discuss appealing the decision.

24. On June 19, 2009, Savage timely filed a written appeal of Grisham's dismissal to DAS State Labor Relations Manager Tom Perry. Perry administers 37 collective bargaining agreements, including the one covering employees in the SOCP. It is Perry's job to investigate grievances that are filed with his office. If DAS does not respond to a grievance at step 4 of the process vvithin 15 days, which Perry did not, the Union can automatically proceed to arbitration.

25. The Union has a 12-person executive board, six of whom are voting members. The executive board typically meets twice a month to conduct business. Among other things, the board can determine whether to pursue an employee's grievance to arbitration. Employees who seek Union support in their grievances are permitted to attend the meetings and present evidence in support of their requests. The board may ask questions or request additional information, but voting takes place in private.

26. The executive board's recording secretary at the time, Rose Darcey, lives next door to Grisham and drove her to the executive board meeting on September 23, 2009. Darcey was also a voting member of the board.

2 7. Sometime prior to the board meeting, Savage conferred by telephone with the Union's attorney and informed the board that she had done so.4

28. Savage, in her role as Grisham's advocate, prepared a packet of information for the board, which included the pre-dismissal letter, the documents submitted at the pre-dismissal meeting, Grisham's statement, and the termination letter. She sat next to Grisham and made a presentation at the meeting, at which all six of the board's voting members were present.

4Savage testified about the content of her conversation with the Union's attorney but the parties agreed, and we do too, to strike that portion of her testimony from the record.

- 8 -

2 9. After questioning, Grisham was escorted out of the room so that the board could deliberate and vote in private. Savage remained in the room during deliberations, although she did not vote.

30. In cqnsidering whether to support a union member's request for arbitration, the board typically considers seven factors, called a just cause test, in which the board applies the following advisory criteria:

"1. Did the employer give to the employee forewarning or foreknowledge of the possible or probable disciplinary consequences of the employee's conduct?

"2. Was the employer's rule or managerial order reasonably related to the orderly, efficient and safe operation of the employer's business?

"3. Did the employer, before administering discipline to an employee, make an effort to discover whether the employee did in fact violate or disobey a rule or order of management?

"4. Was the employer's investigation conducted fairly and objectively?

"5. At the investigation did the judge obtain substantial evidence or proof that the employee was guilty as charged?

"6. Has the employer applied its rules, orders and penalties even-handedly and 'vithout discrimination to all employees?

"7. Was the degree [of] discipline administered by the employer in a particular case reasonably related to (a) the seriousness of the employee's proven offense, and (b) the record of the employee in his service 'vith the employer?"

31. In the executive board's discussions about Grisham's case, a question arose as to why the Department waited for more than seven months before terminating her, during which time she worked 'vithout incident. The board concluded the State acted reasonably by waiting until after Grisham's January 2009 sentencing, which is when it learned of the additional one-year suspension, before initiating pre-dismissal proceedings.

32. A second issue arose concerning past discharge cases. Savage could only find one case in which the Department did not discharge an employee with two DUII convictions; that incident occurred in the 1990s and involved a management-level

- 9 -

employee whose DUII convictions were seven to eight years apart. The board concluded that this one exception did not establish a pattern or practice. In addition, Savage was also aware that HR Manager Millsap did not act alone in her decision making but would have consulted with Grisham's program director before reaching a decision.

33. The board considered the seven factors in the just cause test and voted unanimously not to file for arbitration on Grisham's behalf at step 5 of the grJevance process. Board member Andy Batton brought Grisham back into the room and told Grisham about the board's vote.5 Upset by the board's decision, Grisham spoke with Darcey and Savage in the days following the meeting. Savage considered the grievance as closed, however.

34. There was no evidence that the board had any animosity or ill-feelings towards Grisham.

35. Despite the board's denial, it asked Savage to contact Grisham's managers to see if there were any circumstances under which she might be rehired. Sometime between September 23 and October 23, 2009, Savage met with SOCP Program Director Deanna Bathke and HR Manager Millsap. They told Savage that SOCP was umvilling to rehire Grisham because, for reasons of client safety, it would not permit an Interlock device to be installed on a State vehicle.

36. By letter dated October 23, 2009, Savage told Grisham that SOCP would not rehire her, but that she might want to try finding work at a local casino that was hiring and providing bus service to its employees.

37. By e-mail dated December 9, 2009, Savage told DAS Labor Relations Manager Perry that AFSCME was withdrawing Grisham's grievance.

5Grisham's testimony showed no signs of deception, but her memory of dates, conversations, and events was so inconsistent that her testimony, at least on issues material to this complaint, was not reliable or credible. Her demeanor demonstrated confusion over questions regarding the sequence of events, she could not recall conversations or receiving correspondence, and she became flustered when her testimony was contradicted by her own previous testimony. She initially testified that she did not meet Savage prior to the pre-dismissal meeting and went into the meeting "cold." When questioned about her resume, one of the documents she presented at the predismissal meeting, Grisham remembered that she did speak and meet with Savage, a statement Savage confirmed. Although the complaint alleged that Grisham was never informed of the executive board's decision not to pursue her grievance to arbitration, at hearing she testified that board member Andy Battan brought her back into the room to tell her of the board's decision at its September 23, 2009 meeting. In contrast, the testimony of Savage regarding the meeting was clear, detailed, linear, and consistent with the available written evidence. We therefore rely on Savage's testimony where it conflicts with Grisham's.

- 10 -

38. From Grisham's arrest through the grievance process, Savage had some contact with Grisham in person, by telephone, e-mail, or written correspondence, on average every two weeks, although some of those contacts may have involved another grievance in which Savage also represented Grisham.

CONCLUSIONS OF LAW


2. The Union did not violate ORS 243.672(2)(a) in its investigation and evaluation of Grisham's grievance, by its refusal to take the grievance to arbitration or by its failure to tell Grisham that it would not take the grievance to arbitration.

DISCUSSION

ORS 243.672(2)(a) makes it an unfair labor practice for a labor organization to "[i]nterfere with, restrain or coerce any employee in or because of the exercise of any right guaranteed under ORS 243.650 to 243.782." Under this statute, a labor organization is required to fairly represent all employees in a bargaining unit for which it is the exclusive representative. Putvinskas v. Southwestern Oregon Community College Classified Federation, Local 3972, AFT, AFL-CIO, and Southwestern Oregon Community College, Case No. UP-71-99, 18 PECBR 882, 894 (2000). This Board accords a labor organization substantial discretion in deciding whether to arbitrate, or even to file, a grievance. Conger v. Jackson Counry and Oregon Public Employees Union, 18 PECBR 79, 88 (1999). Furthermore, a union has the discretion to withdraw a grievance based on its judgment that there is insufficient evidence to support the claim. Balch v. Oregon Public Employees Union, Case No. UP-6-96, 16 PECBR 478, 480 (1996).

A union's decision not to pursue a grievance, even if wrong, is not a breach of its duty of fair representation as long as the union's decision was based on "good faith and honest judgment." Coan and Goar v. Ciry of Portland, Bureau of Pm*s, Case Nos. UP-23/24/25/26-86, 10 PECBR 342, 353, recons 10 PECBR 433 (1987) AWOP, 93 Or App 780, 764 P2d 625 ( 1988). A union violates the duty of fair representation only when its refusal to process or pursue a grievance is "arbitrary, discriminatory or in bad faith." Gom; 10 PECBR at 351 (citing Vaca v. Sipes, 386 US 1 71, 64 LRRM 2369 (1967)).

Grisham does not assert that the Union acted discriminatorily or in bad faith, so we examine the Union's processing of her grievance to determine if the Union's conduct was arbitrary. An arbitrary decision by a union is one that lacks a rational basis. Howard v. Western Oregon State College Federation ofTeacl1ers, Local 2278, OFT, Case No. UP-80/93-90, 13 PECBR328, 354 (1991).

- 11 -

In Dennis v. SEIU Local 503, OPEU and State of Oregon, Oregon State Hospital, Case No. UP-26-05, 21 PECBR 578, 592-593 (2007), we explained:

"A union's good-faith decision not to pursue a potentially meritorious grievance, even if mistaken, is not a breach of its duty of fair representation. Chan, 21 PECBR at 576 (citing cases). [Chan v. Clackamas Community College and Clacka111as Com111u11ity College Association of Classified E111ployees, OEA/NEA, Case No. UP-13-05, 21 PECBR 563 (2006), recons den, 21 PECBR 597 (2007).] In addition, '[t]he duty of fair representation does not require a union to represent a bargaining unit member in the same manner as an attorney represents a client.' Putvinskas v. Southwestern Oregon Community College Classified Federation, Local 3972, AFT, AFL-CIO, and Soutlnvestem Oregon Community College, Case No. UP-71-99, 18 PECBR882, 898 (2000). This discretion extends to how the union investigates a potential grievance, so long as some reasonable good-faith investigation is undertaken. Randolph v. Intemational Alliance of 17ieatrical Stage E111ployees, Local B-20, and Metropolitan Erposition Recreation Commission, Case Nos. UP-15/16-92, 15 PECBR 85, 106 (1994),AWOP, 134 Or App 414, 894 P2d 1267 (1995).

"* * * * *

"We defer to a union's decision-making to permit it to be free to act in what it perceives to be the best interests of its members, without undue fear oflawsuits from individual members. Ralphs, 14 PECBRat 422 [Ralphs v. Oregon Public E111ployees Union, Local 503, SEIU, AFL-CIO, Case Nos. UP-68/69-91, 14 PECBR409 (1993)]. Generally, we do not substitute our judgment for that of a union that rationally decided not to process a grievance. Instead, we determine whether a union conducted a proper investigation and used a rational method of decision-making in reaching its conclusion. Putvinskas, 18 PECBR at 895."

Grisham alleges that the Union violated its duty to fairly represent her by inadequately representing her during the grievance procedure, by failing to thoroughly investigate and evaluate her grievance, by deciding not to take her grievance to arbitration, and by failing to tell her about this decision. We analyze each of these contentions in turn.

Grisham bases her assertion that the Union did not adequately represent her during the grievance process on her claims that she had only sporadic contact with Savage, that the Union did not prepare her for the pre-dismissal meeting, and that the Union provided little explanation of her grievance rights after her dismissal. The

- 12 -

evidence does not support these contentions. Savage had some form of contact with Grisham approximately every two weeks throughout the grievance process. Savage met ·with her twice prior to the pre-dismiSsal meeting to prepare the materials and acted as her representative at that meeting. Savage timely appealed Grisham's dismissal at step 4 of the grievance process, she scheduled the case on the executive board's calendar, she researched prior employer decisions regarding dismissals for multiple DUils, she consulted with the Urtion's counsel and she appeared as Grisham's representative at the executive board meeting. As discussed above, the evidence (which includes Grisham's testimony) demonstrates that the executive board told Grisham immediately after its vote that it would not take her grievance to arbitration. In addition, Savage talked ·with Grisham the next day regarding the board's vote.

At the board's request, Savage also met with Grisharn's employer to find out if there were any circumstances under which Grisham might be rehired. On October 23, 2009, Savage wrote to Grisham informing her that she could not persuade her supervisors to rehire her due to concerns about client safety and the need for an Interlock device to be installed on a State vehicle. Based on these facts, Grisham did not meet her burden to show that the Union acted arbitrarily or unreasonably in investigating Grisham's grievance or in representing her.

Grisham next asserts that the Union arbitrarily failed to evaluate her case as to the likelihood of prevailing at arbitration. We disagree. The Union's executive board evaluated her case by using the same seven factors it typically uses to assess all grievances. In applying those factors, it reasonably concluded that Grisham had forewarning in 2006 of the consequences of a second DUil conviction; that the orderly, efficient, and safe operation of her employer's business required her to maintain a valid driver's license; that her employer had verified her conviction and conducted a fair and objective investigation with substantial evidence of the violations; that there was only one case in Savage's 26 years in which an employee with two DUil convictions was not dismissed; and that the seriousness of the offense, along with the safety issues it posed, justified discharge. Based on these factors, the Union reasonably concluded that Grisham was unlikely to prevail if the Union took her grievance to arbitration. The Union's decision was rational and not arbitrary.

Finally, Grisham argues that the September 23, 2009 executive board meeting was a "bad faith attempt to cover up" the Union's failure to comply with the grievance timelines. According to Grisham, the Union scheduled the executive board meeting to consider her grievance after the contractual deadline for requesting arbitration. Grisham contends that the executive board's September 23 meeting was, therefore, a meaningless "sham hearing" because it occurred when it was too late to request arbitration.

As discussed above, the Union's executive board made a considered and thorough evaluation of the facts surrounding Grisham's dismissal at its September 23 meeting.

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Savage adequately investigated the grievance and competently represented Grisham at the board's meeting. The executive board's decision not to take Grisham's grievance to arbitration was based on its good-faith judgment that the Department was justified in discharging Grisham and that the Union had little chance of success in arbitration. There is no evidence that the executive board ever considered the timeliness of a demand for arbitration when it evaluated Grisham's grievance.6 Accordingly, the evidence does not support Grisham's contention that the October 23 executive board meeting was a "sham hearing," held to disguise the Union's failure to complyvvith grievance procedure timelines. ·

The Union's actions throughout Grisham's grievance process indicate that it undertook reasonable steps to advise and represent Grisham, to fairly investigate and evaluate her grievance, and to assist her after her discharge. Grisham failed to establish that the Union acted arbitrarily in violation of its duty to fairly represent her under ORS 243.672(2)(a) and we dismiss the complaint against the Union.

When we hold that the union did not violate subsection (2)(a), we dismiss the complaint against the employer. Me11gucci, 8 PECBR at 6734; Tancredi, 20 PECBR at 97 5-77. Therefore, we also dismiss the complaint against the Department.

ORDER

The complaint is dismissed .

. ,, '

SIGNED AND ISSUED this.JI day of March 2011.

p~,k' Vickie Cowan, Board Member



6This issue was not properly before the executive board. Whether a request for arbitration is timely is a matter for the arbitrator, not the union or employer, to decide. Teamsters Local 670 v. Ciry of Ontario, Case No. UP-40-08, 23 PECBR 210, 217 (2009) (procedural questions, such as timeliness, are left to the arbitrator).

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OF THE

STATE OF OREGON

Case No. FR-05-10

(UNFAIR LABOR PRACTIC~)

KEITH APPLEBY,

Complainant,

v.

GRADUATE TEACHING FELLOWS FEDERATION, AFT LOCAL 3544,

Respondent.

) ) ) ) ) ) ) ) ) )

~~~~~~~~~~~~~~-)

DISMISSAL ORDER

Keith Appleby, Eugene, Oregon, Complainant, appeared prose.

Michael J. Tedesco and Darci G. Van Duzer, Attorneys at Law, Tedesco Law Group, Lake Oswego, Oregon, represented the Respondent.

On October 8, 2010, Keith Appleby (Appleby) filed an unfair labor practice complaint against the Graduate Teaching Fellows Federation, AFT Local 3544 (Federation). He alleged that the Federation violated internal union election procedures and interfered with Appleby's ability to run for office and participate in the election contra1y to ORS 243.672(2)(a) and (b). 1 On December 20, 2010, Appleby filed an amended complaint which added an allegation that the Federation colluded with the University of Oregon (University) to influence the outcome of the election in violation of ORS 243.672(l)(b).

10n October 8, 2010, Appleby filed a second complaint against the Federation and the University of Oregon, Case No. FR-06-10. This Dismissal Order only addresses the claims in Case No. FR-05-10.

On November 15, 2010, the Administrative Law Judge (ALJ) requested clarification of Appleby's employment status at the University at the time of the events raised in the complaint. By letter dated January 12, 2011, theALJ told Appleby that she would recommend that this Board dismiss this complaint unless Appleby could show cause why the complaint should not be dismissed. On January 31, 2011, Appleby submitted his response.

This Board investigates unfair labor practice charges to determine if a hearing is warranted. After the investigation, this Board may dismiss a complaint without hearing if it determines that no issue of law or fact exists that warrants a hearing. ORS 243.676(l)(b). For the reasons explained below, we conclude that the complaint fails to state a claim for relief under ORS 243.672(1)(b), (2)(a), or (2)(b), and dismiss it.

For purposes of this Order, we assume that the well-pled facts in the complaint are true. Schroeder v. State ef Oregon, Depmtment ef C01rections, Oregon State Correctional Institution, and Association ef Oregon Correctional Employees, Case Nos. UP-49/50-98, 17 PECBR 907, 908 (1999). We also rely on undisputed facts we discovered during our investigation. ORS 243.676(l)(b); Upton v. Oregon Education Association/UniServ, Case No. UP-58-06, 21 PECBR 867, 867-68 (2007); Hood River Education Association v. Hood River County School District, Case No. UP-38-93, 14 PECBR 495, 498 n 2 (1993).

We summarize the complaint, the attached exhibits, and the undisputed facts as follows:

1. The Federation is a labor organization that represents a bargaining unit of approximately 1,300 graduate teaching fellows and research assistants ( GTFs) at the University, a public employer. Article 1, Section 1, of the 2010-2012 collective bargaining agreement between the University and the Federation provides that "[t]he bargaining unit as certified by the Employment Relations Board (ERB) consists of 'All graduate students with GTF appointments (service awards) employed by the University of Oregon, excluding supervisors and confidential employees."'

2. Article 4, Section 6 of this collective bargaining agreement provides that

"GTFs who are Union members and who, for any reason, temporarily discontinue their status as a GTF with the University shall, upon their return to University employment, be reinstated as members of the GTF Union following notice provided by the Union to the University."

2

3. Article Three of the Federation bylaws, which govern Federation operations, define two types of Federation members: ( 1) regular members, who are GTFs who are Federation bargaining unit members; (2) associate members, who are graduate students regularly enrolled in the University who are not Federation bargaining unit members.2 Article Three, Section Two (d) provides that associate members are eligible to hold elected or appointed Federation positions.

4. Appleby is a graduate student enrolled in the University. The University initially granted Appleby service awards for four years of employment (nine terms of .4 FTE employment and three terms of .2 FTE employment with the Department of Sociology.Appleby also obtained additional employment through the University's Labor Education and Research Center (LERC).

5. Prior to January l, 2010, LERC employed Appleby as a GTF. Effective January 1, 2010, Appleby resigned from this employment for personal reasons, but continued as a University graduate student.3 At the time of his resignation, Appleby had one term of his service award funding remaining from the Department of Sociology. Between January 1 and September 15, however, Appleby did not work for the University and the University paid him no salary. Appleby resumed working for the University on September 15.

6. During the period January 1 until September 15, University records reflected that Appleby' s employment status was still "active." As a result, in June 2010, Appleby was denied the right to liquidate his retirement account.

7. During the period January 1 through September 15, Appleby paid dues to the Federation. Until sometime in May, Appleby also served as the Federation's Vice President for Political Education.

8. Between February and May, Appleby concurrently ran for various Federation offices as part of an internal union election process. During this time, Appleby alleges that a number of Federation representatives, including members of the

2Membership in a union's bargaining unit is defined by a contractual recognition clause or a Board certification, while membership in the union itself is generally defined by the union's bylaws. As in this case, the definition of union membership may be broader than the definition of the members of the bargaining unit. In addition, membership in the union is generally voluntary, while all designated employees are members of a bargaining unit whether or not they belong to the union.

3All subsequent events occurred during 2010.

3

Elections Committee, interfered with his right to participate in the election by engaging in a negative campaign against Appleby, harassing him about a campaign flyer at a Federation Executive Board meeting, unreasonably denying his request for distribution of campaign literature, acting in a biased manner, providing other candidates unequal access to members, failing to provide a reasonable opportunity to campaign, failing to publish information about when ballots were due, providing unequal access to a list of Federation Women's Caucus members, criticizing him for telling members in campaign literature that the Federation's staff representative was leaving, failing to comply with his request to distribute campaign literature through e-mail, ending the election period early, and leaving the ballots in an unsecured location to which his opponents' supporters had access.

9. On May 7, the Federation announced the results of the election. Appleby did not win any of the positions for which he ran.

10. On December 10, University representatives gave Appleby a copy of an e-mail he had previously sent to a Federation representative. The e-mail was apparently provided to the University as a precursor to a disciplinary conference that University representatives Yeh and Friestad had with Appleby in April of 2010.

Discussion

Based on our review of the complaint, the accompanying exhibits, and the relevant legal authorities, we conclude that the allegations in the complaint do not state a claim on which relief can be granted, and dismiss the complaint.

ORS 243.672(l)(b) Claim

The complaint alleges that Federation representatives worked with the University to influence the outcome of the election and harass Appleby in violation of ORS 243.672(l)(b). Under ORS 243.672(l)(b), it is a violation for "a public employer or its designated representative" to "[d]ominate, interfere with or assist in the formation, existence or administration of any employee organization." ORS 243.650(20) defines a public employer as the State of Oregon and certain political subdivisions, including cities, counties, and school districts. ORS 243.650(21) defines a public employer representative as "any individual or individuals specifically designated by the public employer to act in its interests in all matters dealing vvith employee representation, collective bargaining and related issues."

The Federation is a labor organization and the respondent in this complaint. Subsection ( 1) (b) applies only to a public employer or its representative. The complaint alleges no facts which would support a finding that the Federation was specifically designated by the University, a public employer, "to act in its interests in all matters

4

dealing with employee representation, collective bargaining and related issues." The only factual allegation in the complaint related to this alleged violation is that the Federation colluded with the University by giving it an e-mail that Appleby had sent to one of the Federation's representatives. Standing alone, this allegation, even if true, is insufficient to bring the Federation within the statutory definition of a public employer. Accordingly, Appleby has failed to state a claim for relief against the Federation under ORS 243.672(l)(b).

ORS 243.672(2)(a) Claim

The complaint also alleges that the Federation interfered with Appleby' s right to participate in the internal election process in violation of ORS 243.672(2)(a). Under ORS 243.672(2)(a), it is an unfair labor practice for a labor organization to "[i]nterfere with, restrain or coerce any employee in or because of the exercise of any right guaranteed in ORS 243.650 to 243.782." ORS 243.662 provides that "[p]ublic employees have the right to form, join and participate in the activities of labor organizations of their own choosing * * *." On its face, this statute confers rights only on "public employees." As a threshold matter, we must determine if Appleby was a "public employee" at the time he was allegedly harmed. The statute defines "public employee" as "an employee of a public employer." ORS 243.650(19). There is no dispute that the University is a public employer under the statute. The question is whether Appleby was an employee of the University at the relevant time. The statute does not define "employee," so we give it its ordinary meaning. PGE v. Bureau of Labor, 31 7 Or 606, 611, 85 9 P2d 1143 (1993). We begin our analysis of Appleby' s claim by interpreting these statutes.

"An employee is commonly understood to be a person who is employed by another. Webster's Third New Int'/ Dictionmy 743 (unabridged edition 2002)." 1'1.ossberg v. University ef Oregon, 240 Or App 490, 496, 247 P3d 331 (2011). If the drafters of the 1aw intended to protect persons other than employees, they would have used a term unrelated to current employment status, such as "individual" or "person. " Id. 4

At the time the events occurred upon which Appleby's allegations are based, Appleby had resigned from his GTF position. Although he had a service award with the University that might result in future re-employment, he did not work for the University

4InJ\1.ossberg, the Oregon Court of Appeals concluded that OAR 571-003-000(1), which makes a grievance procedure available to "employees," refers only to current employees; the court noted that if the legislature intended the procedure to be available to others, it would have used another term "not intrinsically connected to current employment status."

5

during the period the allegedly unlawful acts occurred. Accordingly, Appleby was not a public employee and is not entitled to pursue a claim against the Federation under subsection. (2)(a). See Baker School District No. 5/ v. Baker Education Association and Don Shore, Case No. C-4 7-78, 5 PECBR 3057, 3067 n 8 (1980) (allegations against a union under ORS 243.672(2)(a) were dismissed partially on the grounds that the allegedly unlawful acts were directed against individuals who were not working for an Oregon public employer).

Appleby argues, however, that he should be considered a University employee because his status is comparable to that of a seasonal employee, a teacher on summer recess, or an adjunct professor who has no teaching assignment during a particular academic term. According to Appleby, these individuals are considered employees, even though they may have regular or intermittent periods of unemployment.

Assuming without deciding that seasonal employees, teachers, and adjunct professors are employees under ORS 243.650( 19), their status differs significantly from Appleby's. All these individuals have some assurance of continued employment. Appleby, however, had none at the time he filed his unfair labor practice complaint: he had voluntarily resigned his position as a GTF and severed his employment relationship with the University.

Appleby also contends that by allegedly attempting to block his participation in the Federation elections, the Federation breached its duty to fairly represent him. Under ORS 243.672(2)(a), a labor organization is obligated to fairly represent all employees in the bargaining unit for whom it is the exclusive representative. Robert T. Griffin v. Service Emplqyees International Union Local 503, Oregon Public Emplqyees Union and State of Oregon, Emplqymellt Depmtment, Case No. FR-002-09, 24 PECBR 1 (2010).

A labor organization's "duty to represent an individual exists only if it is the exclusive representative of a bargaining unit and it is in a position to assert PECBArights on behalf of an individual who is in that bargaining unit." Reidy v. Oregon Public Emp1qyees Union, Case No. UP-73-87, 10 PECBR 180, 182 (1987). Neither an employer nor a union has a legal obligation to bargain about the employment relations of retirees or former employees who voluntarily resigned their employment with the employer and who, as a result, are no longer members of the bargaining unit. Hadlry v. Multnomah Coun07 DepufY Sheriffs Association and Multnomah Coun07, Case No. FR-1-08, 22 PECBR 416, 419 (2008). After an employee resigns, there is no reason for the union to represent the employee. Chan v. Clackamas Communi07 College, Case No. UP-13-05, 21 PECBR 563, 576 (2006).

Here, the Federation bargaining unit includes only GTFs "with GTF appointments (service awards) emplqyed by the University." (Emphasis added.) During the time that the Federation allegedly interfered withAppleby's right to participate in the internal election

6

process, Appleby was not employed by the University: he had resigned. Although he had a service award which allowed for possible future employment, he was not working for the University and not on the University's payroll. Accordingly, Appleby was not a member of the Federation bargaining unit whom the Federation was obligated to fairly represent under ORS 243.672(2)(a).

ORS 243.672(2)(b) Claim

ORS 243.672(2)(b) makes it an unfair labor practice for a public employee or a labor organization to refuse to bargain in good faith with a pubic employer. The complaint includes no factual allegation that the Federation either had an obligation to bargain with, or, for that matter, failed to bargain with the University. Therefore, Appleby has failed to state a claim for relief under ORS 243.672(2)(b).

ORDER


DATED this -31- day of March 2011.

~ Paul B. Gamson, Chair

/' ~'.a(!/?~



7


OF THE

STATE OF OREGON

HOOD RIVER COUNTY,

Petitioner,

v.

AFSCME LOCAL 1082,

Respondent.

Case No. UC-004-11

(REDESIGNATION)

) ) ) ) ) ) ) ) )

ORDER REDESIGNATING BARGAINING UNIT

~~~~~~~~~~~~~-)

The parties submitted this case directly to this Board on stipulated facts and written legal argument. The record closed on March 23, 2011, follo;ving submission of written legal arguments.

Bntce Bischof, Attorney at Law, and Nancy Hungerford, Attorney at Law, represented Petitioner.

Michael Dehner, Council Representative, Oregon AFSCME Council 75, represented Respondent.

By letter dated Febntary 16, 2011, Hood River County (County) asked, among other things, that this Board redesignate the AFSCME Local 1082 (AFSCME) bargaining unit by removing strike-prohibited Deputy District Attorneys (DDAs) from the existing unit and placing them in a separate unit. By letter dated Febntary 17, 2011, the Elections Coordinator notified the County that she would consider the February 16 letter a petitionforredesignation under OAR 115-025-0000( 1 )(e). AFSCME filed timely objections to the petition.

1

The case was submitted directly to this Board on the following stipulated facts:

1. AFSCME is the exclusive representative of a collector bargaining unit of non-public works employees who work for the County. The bargaining unit contains approximately 38 employees, including one full-time and one part-time DDA.

2. The parties' most recent collective bargaining agreement was in effect from July 1, 2007 through June 30, 2010. On December 7, 2009, AFSCME and the County met to begin negotiations for a successor contract.

3. In 2009, the legislature enacted House bill 2963. It amended ORS 243. 736 to specify that DDAs are prohibited from striking. The bill became law on January 1, 2010. On that date, the AFSCME bargaining unit became a mixed unit containing both strike-permitted and strike-prohibited employees.

4. At a February 25, 2010 bargaining session, AFSCME notified the County that strike-prohibited DDAs were part of the bargaining unit.

5. On Febntary 26, 2010, the County filed a petition to redesignate the AFSCME bargaining unit. After this Board's Elections Coordinator notified the County that the Petition was untimely under OAR 115-025-0000(l)(e), the County withdrew the petition on April 5, 2010.

6. On February 10, 2011, AFSCME requested interest arbitration and submitted its final offer to this Board. The Board initiated interest arbitration in a Febntary 10, 2011 letter to the parties.

7. On February 16, 2011, the County objected to the initiation of interest arbitration and asked that this Board redesignate the bargaining unit because it contained strike-prohibited employees.

8. By letter dated February 17, 2011, this Board's Elections Coordinator told the parties she would consider the County's February 16 letter a petition for redesignation filed under OAR 115-025-0000(l)(e).

9. On February 25, 2011, AFSCME objected to the redesignation petition on the grounds that it was untimely and that redesignation would unduly fragment the bargaining unit.

2

10. DDAs have been members of the AFSCME bargaining unit since 1986 when the original union, AFSCME Local 2503, was chartered. In 1986, AFSCME split into two groups: Local 2503, which represents County public works employees, and Local 1082, which represents all other County employees, including DDAs.

11. DDAs and other bargaining unit members are covered by the same personnel policies and benefit plans. DDAs and bargaining unit meinbers work in the same physical location and in close proximity to one another. DDAs share common supervision with other bargaining unit members; they work similar hours in an office setting identical to those in which other bargaining unit members work.

12. When AFSCME learned about the change in the law that made DDAs strike-prohibited, it repeatedly explained to the Local 1082 elected leadership and bargaining unit membership that the entire unit would be strike-prohibited if DDAs remained in the unit. The members of the AFSCME bargaining unit, including the DDAs, wish to continue including DDAs in the existing bargaining unit.

DISCUSSION

As a result of a change in the law, the AFSCME bargaining unit is now mixed, containing 2 strike-prohibited employees and approximately 36 strike-permitted employees. A bargaining unit with any strike-prohibited employees cannot strike, even if some of the employees would otherwise be strike-permitted. AFSCME v. Executive Dept., 52 Or App 457, 459, 628 P2d 1228 (1981). For this reason, this Board has a historical preference for placing strike-prohibited and strike-permitted employees in separate bargaining units. Washington Counry Police Officers Association v. Washington Counry, Case No. UC-36-00, 19 PECBR 641, 648 (2002). The difference in the dispute resolution for the two employee groups is a community of interest factor which strongly favors their separation.American Federation of State, Counry and Municipal Empll!Jlees v. Ciry of Seaside, Case No. C-20-81, 6 PECBR 4783, 4786-87 (1981). We refuse to allow a few strike-prohibited employees to deny the right to strike to a larger group. Multnomah Counry v. Multnomah Counry Empll!)'ees Union Local 88, Case No. UC-4-92, 13 PECBR 689, 699-700 (1992); Jackson Counry v. SEIU Local 503, OPEU, Case No. UC-2-04, 20 PECBR544 (2004); Ciry of Albany v.American Federation of State, Counry and Municipal Empll!JleeS, Local 2909, Case No. UC-20-07, 22 PECBR 58 (2007). Compelling reasons must exist to allow strike-permitted employees to lose their right to strike because of their inclusion in a mixed unit. Association of Oregon C01rectio11s Empll!)'ees v. State of Oregon, Department of C01nctions andAFSCME, Council 75, Case No. UC-25-99, 18 PECBR 576, 587 (2000).

We have, at times, designated units in which a small number of strike-permitted workers are mixed with a large number of strike-prohibited workers, particularly if the employees share a strong community of interest. Multnomah Counry, 13 PECBR at 699.

3

We have never permitted and will not maintain a bargaining unit that combines a small minority of strike-prohibited workers with a large number of strike-permitted workers, however. Id. at 699-700. We reach a similar result here and grant the County's petition for redesignation. 1

ORDER

1. The petition for redesignation is granted. The description for the existing bargaining unit represented by AFSCME Local 1082 shall be amended to exclude Deputy District Attorneys.

2. Deputy District Attorneys are placed in a separate appropriate unit described as follows:

"All Deputy District Attorneys employed by Hood River County, excluding supervisory, managerial, confidential, and other employees excluded by PECBA."

3. AFSCME Local 1082 represents this bargaining unit.

DATED this _/ _ day of April, 2011.

~' Vickie Cowan, Board Member

tJM»VV (fittz) Susan Rossiter, Board Member


1We reject AFSCME's contention that this petition was not timely filed. The parties' collective bargaining agreement expired on June 30, 2010. Accordingly, there was no collective bargaining agreement in effect on the date the petition was filed-Februaiy 16, 2011-and the limitations for filing a redesignation petition during the term of a contract are inapplicable. OAR 115-025-0000(l)(e).

4


OF THE

STATE OF OREGON

Case No. FR-001-11


TROY KREGER,

Complainant,

v.

OREGON AFSCME COUNCIL 75 and CITY OF EUGENE,

Respondents.

) ) ) ) ) ) ) ) ) )

~~~~~~~~~~~~~-)

Troy Kreger, Eugene, Oregon, prose.

DISMISSAL ORDER

Mark P. Amberg, Attorney at Law, Eugene, Oregon, for Respondent City of Eugene.

Jason M. Weyand, Legal Counsel, Salem, Oregon, for Respondent Oregon AFSCME Council 75.

On January 21, 2011, Complainant Troy Kreger (Kreger) filed this unfair labor practice complaint againstAFSCME Council 75 (Union) and the City of Eugene (City). The complaint alleges that the Union violated its duty of fair representation under ORS 243.672(2)(a) by inadequately representing him during a previous unfair labor practice proceeding. The complaint also alleges that the City committed an unfair labor practice under ORS 243.672( 1 )(g) by targeting him for his protected union activities.

On Februaiy 8, 2011, the City filed a motion to dismiss on the grounds that the complaint was not filed within 180 days of the alleged unfair labor practice as required

under ORS 243.672(3). The City further contends that because the Board dismissed the previous complaint, the issues alleged in it cannot be raised again in a subsequent claim. The Union did not respond to the motion.

By letter dated February 18, 2011, the Administrative Law Judge (ALJ) asked Kreger for any additional facts or law that would rebut the City's assertioh"that his complaint is untimely or otherwise show cause why the case should not be dismissed. Kreger was given a deadline ofMarch l, 2011 to respond, but no response was received.

For purposes of this Order, we assume the well-pled facts in the complaint are true. Schroeder v. State of Oregon, Department of Co1nctio11s, Oregon State Correctional Institution and Association of Oregon Correctional Emplqyees, Case Nos. UP-49/50-98, 17 PECBR 907, 908 (1999). We also rely on undisputed facts discovered in our investigation. Upton v. Oregon Education Associatio11/U11iServ, Case No. UP-058-06, 21PECBR867, 868 (2007); ORS 243.676(l)(b). We have reviewed the complaint and the City's motion to dismiss, and we take official notice of the unfair labor practice complaint in Case No. UP-29-09. 1 We conclude that there are no issues oflaw or fact and accordingly dismiss the complaint. ORS 243.676(l)(b).

BACKGROUND

The City fired Kreger on June 10, 2009. On June 17, 2009, the Union filed an unfair labor practice complaint under ORS 243.672(l)(a), (b), and (c). It alleged that the City unlawfully fired Kreger for engaging in protected union activities. On December 21, 2009, this Board dismissed that complaint for failure to prosecute. Oregon AFSCiVIE Council 75 v. Ciry of Eugene, Case No. UP-029-09, 23 PECBR 442 (2009) (Dismissal Order). On reconsideration, the Board adhered to its order dismissing the complaint. 23 PECBR 5 80 ( 2010). The Union appealed the Board's Order to the Oregon Court of Appeals. On July 28, 2010, the court dismissed the appeal as untimely.

At the same time the Union was pursuing the unfair labor practice complaint and appeal, it was also pursuing a contract grievance challenging the City's right to fire Kreger. The Union's primary theory in the grievance was that the City unlawfully fired Kreger because of his union activity. On February 13, 2010, an arbitrator issued an award upholding Kreger's dismissal.2 The arbitrator concluded that the City acted for legitimate reasons that were unrelated to Kreger's union activity, and expressly rejected the Union's contention that Kreger's union activities played a role.

10rego11 AFSCA1E Council 75 v. City of Euge11e, Case No. UP-029-09, 23 PECBR 442 (2009) (Dismissal Order), adhered to 011 recons., 23 PECBR 580 (2010).

2Kreger attached a copy of the arbitrator's award to his complaint.

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DISCUSSION

The City moves to dismiss Kreger's complaint as untimely. ORS 243.672(3) provides that an injured party may file a written complaint "not later than 180 days following the occurrence of an unfair labor practice." Kreger filed his complaint on January 11, 2011, which means that the unfair labor practice giving rise to the claim must have occurred on or after July 15, 2010.

Kreger's complaint alleges the City violated ORS 243.672( 1 )(g). Subsection ( 1 )(g) makes it an unfair labor practice for a public employer to " [ v ]iolate the provisions of any written contract with respect to employment relations * * *."The only "written contract with respect to employment relations" that Kreger refers to in his complaint is the collective bargaining agreement between the City and the Union. He alleges that "the City of Eugene targeted me for my union activities as well as attempting to tighten [sic] them in violation of the language in the 1724 union contract."

As noted earlier, the Union arbitrated a contract grievance which made this same assertion, i.e., that the City violated the labor agreement because it fired Kreger for his union activities. The arbitrator denied the grievance. She concluded that the City acted for legitimate reasons unrelated to Kreger's union activity. This arbitration award was issued on February 13, 2010. On that date, at the very latest, Kreger was aware of any alleged contract violation regarding his dismissal. This is far more than 180 days before he filed this unfair labor practice complaint. Under ORS 243.672(3), the complaint against the City is untimely and must be dismissed.3

In Kreger's duty of fair representation case against the Union,4 the 180-day filing period still applies, but it begins when Kreger "knew, with reasonable certainty, that [the union] failed to fairly represent him." Eldred v. Assoc. of Engineering Employees and Oregon Department of Transportation, Case No. FR-03-09, 23 PECBR 145, 248 (2009) (quoting Ralphs JI. Oregon Public Employees Union, Local 503, SEIU, AFL-CIO and State of Oregon, Executive Department, Case Nos. UP-68/69-91, 14 PECBR 409, 417 (1993)).

3Because of this resolution, we need not decide the City's assertion that the 180-day limitation period commenced even before the arbitration award was issued, or that the complaint was barred by res judicata.

4We explain the duty of fair representation in Ralphs JI. Oregon Public Employees Union, Local 503, SEIU, AFL-CIO and State of Oregon, Erecutive Depmtment, Case Nos. UP-68/69-91, 14 PECBR 409, 417 (1993) and Chan JI. Leach and Stubblefield, Clackamas Commun!~ College and Clackamas Comm1111i~ College Association of Classified Emphryees, Case No. UP-13-05, 21 PECBR563 (2006), 011 reconsid., 21 PECBR597 (2007).

- 3 -

Kreger alleges that the Union failed to fairly represent him in a variety of ways. First, he asserts that the Union failed in numerous respects to adequately prepare for and represent him in the arbitration hearing. At the latest, Kreger was aware of this claim when the arbitrator issued her award. As discussed, the award was issued on Febniary 13, 2010, more than 180 days before Kreger filed this complaint. The claim is untimely and we will dismiss it.

Kreger next alleges that the Union failed to adequately represent him in an unfair labor practice proceeding that challenged his dismissal. For purposes of this Order, we assume, without deciding, that the Union had a duty to fairly represent Kreger in an unfair labor practice proceeding.5 On December 21, 2009, we dismissed that complaint because the Union failed to prosecute it. On that date, Kreger knew, or should have known, that he had a potential claim against the Union for failing to represent him adequately in that proceeding. His claim, filed more than a year later, is untimely.

Even if we apply a more generous date to start the statutory clock-the Febniary 25, 2010 date when this Board adhered to the dismissal on reconsideration-the complaint is still untimely.

Kreger asserts, however, that the 180-day period began on July 28, 2010, when the Court of Appeals dismissed the Union's appeal as untimely. We disagree. The court's dismissal of the appeal is not the occurrence which first gave rise to Kreger' s potential claim against the Union. Under ORS 243.672(3), Kreger became an "injured party," and the timeline began to run on his claim, when this Board dismissed the Union's unfair labor practice complaint. See Ralphs v. Oregon Public Employees U11io11, 14 PECBR at 418 (grievant became an injured party in a duty of fair representation case when an arbitrator dismissed a grievance because the union failed to properly file it). Kreger filed this complaint more than 180 days later.

The Board is sympathetic to Kreger's situation, but the purpose of the PECBA's statute of limitations is "to bar litigation over past events after records have been cdestroyed, witnesses have gone elsewhere, and recollections of the events in question have become dim and confused *** ." AFSCJVIE Council 75, AFL-CIO and Hapluy and

5But see E/ect1ica/ W01*ers v. Foust,, 442 US 42, 47 (1979) ("a union mustrepresent fairly the interest of all bargaining-unit members during the negotiation, administration and enforcement of collective-bargaining agreements.")

-4-

Bondietti v. Linn County, Linn County Slzeriff s Office, Case No. UP-115-87, 11PECBR631, 648 (1989) (quoting Local Lodge 1424 v. NLRB, 362 US 411 (1960)). This purpose would not be served if we permitted Kreger to pursue his claims at this late date.

The claims against the Union and the City are untimely and will be dismissed.

ORDER

The complaints against AFSCME Council 75 and the City of Eugene are dismissed.

DATED this tB day of April, 2011.

~·,


/~A)~ft: Susan Rossiter, Board Member


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OF THE

STATE OF OREGON

Case No. PU-01-11


SEIU LOCAL NO. 49, ) ) ) ) ) ) ) ) ) )

Complainant,

v.

OREGON RACING INC., d/b/a PORTLAND MEADOWS,

Respondent.

~~~~~~~~~~~~~-)

DISMISSAL ORDER

Oregon Racing operates Portland Meadows horseracing track in Portland. SEIU Local No. 49 (SEIU) filed a charge against Oregon Racing which asserts that Oregon Racing committed unfairlabor practices under 0 RS 663.120(1) and ( 4). Oregon Racing asserts that this Board lacks jurisdiction over it. We agree and therefore dismiss the charges.

ORS 663.005(4)(f) prevents this Board from exercising jurisdiction over "[a]ny person subject to the jurisdiction of the National Labor Relations Board under its existing jurisdictional standards, pursuant to the Labor Management Relations Act of 1947, as amended (29 U.S.C. 141 to 187)." The question, then, is whether Oregon Racing is subject to the National Labor Relations Board's (NLRB) jurisdiction.

The NLRB's jurisdiction is controlled by federal statute. Most pertinent here is 29 U.S.C. §164(c)(l). Under it, the NLRB may, by rule or decision, decline to assert jurisdiction over a labor dispute involving "any class or category of employers" that the Board believes has an insufficient impact on interstate commerce to warrant its exercise of jurisdiction. Pursuant to this statutory authority, the NLRB adopted a rule which states that " [ t ]he Board will not assert its jurisdiction in any proceeding under sections 8, 9, and 10 of the Act involving the horseracing and dogracing industries." 29 CFR §103.3. Significantly, this NLRB rule is under the heading "Jurisdictional Standards," the same phrase used in ORS 663.005(4)(f) to describe the extent of this Board's jurisdiction.

-1-

If we were writing on a blank slate, we would have no difficulty deciding that this Board has jurisdiction over Oregon Racing. Because the NLRB categorically excludes the horseracing industry from its jurisdiction, Oregon Racing is not "subject to the jurisdiction of the National Labor Relations Board under its existing jurisdictional standards." ORS 663.005(4)(f).

We are not,however, writing on a blank slate. The Oregon Supreme Court has addressed this Board's jurisdiction under ORS 663.005(4)(f). When the Oregon Supreme Court interprets a statute, "that interpretation becomes part of the statute as if written into it at the time of its enactment." Stephens v. Bohlman, 314 Or 344, 350 n 6, 838 P2d 600 (1992); State v. Sullens, 314 Or 436, 443, 839 P2d 708 (1992) (quoting Walther v. SAIF, 312 Or 147, 149, 817 P2d 292 (1991)).

In Central Catholic Ed. Assn. v. Archdiocese of Portland, 323 Or 238, 916 P2d 303 ( 1996), the Court interpreted the phrase "jurisdictional standards" in ORS 663.005 ( 4)(f). The issue in Central Catholic was whether this Board had jurisdiction over a labor dispute involving a private religious school. The NLRB declined to exercise jurisdiction on grounds that it is precluded from doing so for teachers in a church-run school whose "function in substantial part is to propagate religious faith." 323 Or at 240 n 1. The Court reviewed the text and context of ORS 663 .005 ( 4)(f) and concluded that "the phrase 'subject to the jurisdiction of the National Labor Relations Board under its existing jurisdictional standards' in the statutory definition of 'employer' refers to those employers that meet the.financial[y based jurisdictional criteria applied by the NLRB pursuant to its authority under the NLRA." 323 Or at 251-52 (emphasis in original). In Central Catholic, the NLRB declined jurisdiction for reasons other than financial criteria, so the Court concluded that this Board lacked jurisdiction under ORS 663.005(4)(f).

The rule we derive from Central Catholic is that this Board has jurisdiction over private sector employers only when the NLRB declines to act because of "financially based jurisdictional criteria." The Court in Central Catholic adopted the employer's interpretation that ORS chapter 663 applies only to employers "whose operations are too small to meet the NLRB's financially based jurisdictional standards." 323 Or at 248. Besides telling us that the test concerns the employer's size, the Court does not define or otherwise clarify the phrase "financially based jurisdictional criteria."

The NLRB, however, has established specific dollar amounts of annual gross revenue or business volume for dozens of categories of business enterprises that a particular employer in the category must generate before the NLRB will exercise jurisdiction over it. For example, a nonretail enterprise must have annual gross revenue of at least $50,000 before the Board -will exercise jurisdiction over it; a retail establishment must have annual gross business volume of at least $500,000; a shopping center must have annual gross revenue of at least $100,000; and TV and radio stations

-2-

must have annual gross business volume of at least $100,000. See gmeral[y II J. Higgins, The Developing Labor La1V 2307-2320 (5'h ed 2006) (listing and describing NLRB's financial jurisdictional standards); and B. Gerren, E. Fox, and J. Truesdale, How to Take a Case Before the NLRB 45-53 (7'h ed 2000) (same). Because these are the only NLRB jurisdictional standards based on financial considerations, we assume they must be the "financially based jurisdictional criteria" the Court refers to in Central Catholic. The dispositive question is whether the NLRB declined to assert jurisdiction over the horseracing industry based on such financial criteria.

When the NLRB passed its rule in 1973 declining to assert jurisdiction over the horseracing industry, it helpfully published an explanation of its reasons for the rule. 38 Fed Reg 9537 (1973). 1 It makes no mention of financial considerations. The explanation first notes that the racing industry is highly regulated by the states. A "special relationship" has developed between the states and the industry because the industry provides substantial revenue to the states which gives the states a strong interest in supervising the industry. Second, the NLRB observes that the sporadic employment in the industry encourages many temporary part-time workers and resulting high turnover. The NLRB believes that such an unstable workforce would present administrative problems in conducting elections and awarding effective remedies. Third, the NLRB notes that there have been relatively few labor disputes in the industry, so that the impact is "insubstantial and does not warrant the Board's exercise of jurisdiction."

None of these reasons are "financially based jurisdictional criteria." Accordingly, under Central Catholic, we are compelled to conclude that Oregon Racing is not an employer under ORS 663.005(4)(f), and this Board therefore lacks jurisdiction over SEIU's charges.2

1See also Pmi Mutuel Clerks Union of Louisiana, Local 328 l'. Fair Grounds C01poratio11, 703 F2d 913, 916-17 n 1, (S'h Cir) cert. denied, 464 US 846 (1983) (providing histmy of the NLRB rule).

2We read the plain language of ORS 663.005(4)(£) as indicating the legislature's intent to grant this Board jurisdiction to the full extent permitted by law. The Court's decision in Central Catholic, however, precludes such a reading. Under Central Catholic, we are compelled to conclude that we lack jurisdiction, even though it leaves Oregon Racing and its employees in a "no-man's-land" with no rights under state or federal labor laws.

Although ORS chapter 663 as currently written does not cover Oregon Racing, it could nonetheless be amended to provide such coverage. Under 29 U.S.C. §164(c)(2), the states are expressly entitled to assert jurisdiction over labor disputes when the NLRB declines to exercise jurisdiction over a class or category of employers, as it did here with the horseracing industry. Thus, if the appellate courts will not limit or distinguish the holding in Central Catholic, the legislature could choose to amend the statute to exert jurisdiction to the full limits permitted by federal law.

-3-

ORDER

SEIU's unfair labor practice charges against Oregon Racing are dismissed for lack of judsdiction.

DATED this 2 8 day of Apdl 2011.


~~·· Vid<leCOWan, Board Member



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OF THE

STATE OF OREGON

Case No. UC-013-11

(AMENDMENT OF CERTIFICATION)

PORTLAND FEDERATION OF TEACHERS AND CLASSIFIED EMPLOYEES,

Petitioner,

v.

PORTLAND PUBLIC SCHOOLS DISTRICT #1,

Respondent.

) ) ) ) ) ) ) ) ) ) ) )

~~~~~~~~~~~~~-)

ORDER AMENDING CERTIFICATION OF EXCLUSIVE BARGAINING REPRESENTATIVE

On April 21, 2011, the Portland Federation of Teachers and Classified Employees (Federation) filed a petition under OAR 115-025-0008 seeldngto amend its certification to reflect a change of name to Portland Federation of School Professionals. The Federation is currently the certified exclusive bargaining representative of a bargaining unit of personnel employed by Portland Public Schools District #1 (District). The recognition clause in the parties' collective bargaining agreement defines the bargaining unit to include all employees of the District specified in Appendix A of the agreement, but excluding confidential or supervis01y employees, short-term temporary employees, substitute employees, and student workers.

The petition was accompanied by the Federation's Executive Board Minutes from March 16, 2011. At that meeting, the Executive Board discussed the potential name change because the existing name caused "too many questions." The Executive Board then moved to change the name to Portland Federation of School Professionals.

The elections coordinator served the petition on the District on April 22. No timely objections to the name change were filed.

The petition presents no question of representation.

Based on the foregoing, the Board issues the following order:

ORDER

The Portland Federation of Teachers and Classified Employees certification is ·amended to reflect the change of name to Portland Federation of School Professionals.

DATED this rJ.- day of May, 2011.

Mi~ Viclde Cowan, Board Member



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OF THE

STATE OF OREGON

Case No. UC-25-09

(UNIT CLARIFICATION PETITION)

ASSOCIATION OF ENGINEERING EMPLOYEES,

Petitioner,

v.


Respondent.

) ) ) ) ) ) ) ) ) ) )

~~~~~~~~~~~~~~-)

RULINGS, ·FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER

Neither party objected to a Recommended Order issued on August 25, 2010, by Administrative Law Judge (ALJ) Wendy L. Greenwald, following a hearing held on April 12, 2010, in Salem, Oregon. The record closed on May 19, 2010, upon receipt of the parties' post-hearing briefs.

Naomi S. Loo, Attorney at Law, Law Office of Michael J. Tedesco, Lake Oswego, Oregon, represented the Petitioner.

Francis J. Connell, III, Senior Assistant Attorney General, Department ofJustice, Salem, Oregon, represented the Respondent.

On November 5, 2009, the Association of Engineering Employees (AEE) filed a unit clarification petition under OAR 115-025-0005(3). As amended on Febntary 8, 2010, the petition seeks to determine whether 70 employees in the positions of compliance specialist l, 2, and 3, who work at the State of Oregon (State), Department of Transportation (ODOT), are included in the existing AEE bargaining unit based on the express terms of the parties' collective bargaining agreement.

ODOT filed timely objections to the petition. It argues that 1) the petition did not comply with the filing requirements under OAR 115-025-0010(4); 2) a unit clarification petition is not appropriate because a question of representation exists; 3) a petition under OAR 115-025-0005(3) is not appropriate because it seeks to add positions that were transferred from the Public Utility Commission (PUC) to ODOT in 1996, and have been excluded from the AEE bargaining unit since that time; 4) AEE waived its right to seek to add these positions under OAR 115-025-0005(3) by failing to previously assert representation of these positions; 5) pursuant to Senate Bill 1149 (SB 1149), these positions cannot lawfully be added to the bargaining unit without a secret ballot election or other majority showing of interest; and 6) the employees in the positions at issue do not share a community of interest vvith the members of the existing bargaining unit. 1

The issue is: Are the positions of compliance specialist l, 2, and 3 included in the AEE bargaining unit under the express terms of the collective bargaining agreement?

RULINGS

1. On November 5, 2009, in conjunction vvith this petition, SEIU Local 503, OPEU (SEIU) filed a separate but similar petition under OAR 115-025-0005(3). It asks us to determine whether the ODOT positions of office specialist 1 and 2, transportation service representative 2, and administrative specialist 2 which, like the positions at issue here, were transferred from PUC in 1996, are included in its bargaining unit. See SEIU Local 503, OPEU v. State of Oregon, Department of Transp01tatio11, Case No. UC-26-09, 24 PECBR _ (decided this date). AEE and SEIU requested that the ALJ consolidate these petitions for hearing. The State objected to the consolidation because AEE's and SEIU's petitions addressed different groups of employees, consolidation would make the hearing unduly cumbersome and confusing, and the facts that these matters had in common were likely undisputed. Prior to the hearing, the ALJ ruled that the two matters would be consolidated for purposes of the hearing and recommended order to avoid repetition of facts, but that the testimony pertinent to each labor organization's case would be segregated. After the hearing, however, the ALJ severed the cases for purposes of the recommended order because AEE and SEIU presented different

1We do not address ODOT's first or last objection in this order. Any issues regarding the sufficiency of the petition were resolved by AEE's amended petition. The issue of whether these positions share a community of interest with existing bargaining unit members is not appropriately considered under a subsection (3) petition. Mmion Counry v. Nlariou Counry Emplqyees Association Local 294, SEIU Local 503, Case No. UC-12-02, 19 PECBR 781, 783 (2002).

- 2 -

legal arguments in support of their petitions. We adopt the rnling of the ALJ consolidating these cases for the purposes of hearing only, but severing them for issuance of the recommended orders .

. 2. The remaining rulings of the ALJ have been reviewed and are correct.

FINDINGS OF FACT

1. AEE is the exclusive representative of a bargaining unit of State employees, including employees at ODOT, the Department of Forestry (Forestry), and the Parks and Recreation Department (OPRD). There are approximately 1,100 employees in the currentAEE bargaining unit, the majority of whom work at ODOT. The State is a public employer.

2. The petitioned-for positions were previously located at PUC, worldng in motor carrier transportation regulation.2 The PUC employees in those positions were originally represented as part of an SEIU-PUC agency-level bargaining unit. In 1981, the employees in the SEIU-PUC bargaining unit became represented as part of SEIU's statewide bargaining unit. In 1984, these PUC employees voted to decertify SEIU as their bargaining representative and became unrepresented employees.3

3. The recognition clause in the AEE-State 1992-95 Collective Bargaining Agreement provided:

"The Employer recognizes the Association as sole and exclusive bargaining agent for all employees within the appropriate bargaining units, both existing and to be determined in the future, for which the Association is certified or recognized, except temporary employees and those employees excluded by law or by determination of the Employment Relations Board.

2The record does not include the name of these positions while they were located at PUC. After the responsibility for motor carrier transport regulation was moved to 0 DOT, the positions canying out these duties were classified as motor carrier specialists. The motor carrier specialists were later reclassified as compliance specialists.

3Although the PUC employees were part of the SEIU statewide unit when the decertification petition was filed, this Board allowed the petition to go forward based on the language in the 1983-85 SEIU-State Collective Bargaining Agreement. That Agreement recognized the prior agency bargaining units during the first 90 days of the agreement to allow the employees in each agency to file fair share or election petitions. Solidariry v. Public Utiliry Commissioner aud Oregon Public Employes Union, Case No. C-143-83, 7 PECBR 6414, 6420 (1984).

- 3 -

"Classifications represented by the Association within the Oregon Department of Transportation (ODOT), the Parks and Recreation Departh1ent (PARKS) and the Department of Forestry (FORESTRY) is listed in Appendix A, including such other classes as may from time to time be determined as appropriate through the Employment Relations Board (ERB) process."4

The list of classifications in Appendix A attached to the agreement, did not include the motor carrier specialists or the compliance specialists.

4. In 1995, the Oregon legislature considered the adoption of SB 1149, the purpose of which was to transfer the responsibility for regulating motor carrier transportation from PUC to ODOT. On May 18, 1995, the Joint Committee on Ways and Means held a work session regarding a variety of issues related to SB 1149, including the impact of transferring unrepresented PUC positions into ODOT, whose employees were represented. At the beginning of the session, Theresa McHugh, from the Department of Administrative Services (DAS), addressed the committee regarding issues related to "the agreements necessary to make the collective bargaining changes,** *."5

In response, Representative Johnson expressed frustration at DAS's lack of understanding of the issues. A transcript of the session shows the following discussion occurred:

"Johnson: * * * * * Collective bargaining - you talk about collective bargaining changes - there are no collective bargaining issues. PUC is nonunion and you talk about there being collective bargaining. There is nothing. Not one single thing affecting collective bargaining. The leadership of the (inaudible) party to talk about how would he make it work when they become union. They don't have to become union. But you obviously didn't even know that in fact there is no collective bargaining party in PUC or you wouldn't - customer service [sic], talk about that.

"* * * * *

"McHugh: I am aware of the issues in terms of representation, Representative Johnson. I came [sic] and work now 1,vith an agency that

4The recognition clause in the contract between AEE and ODOT has not materially changed since the 1992-95 Agreement.

5McHugh's testimony at the May 18 Ways and Means Committee work session on SB 1149 begins on tape 133, side A, counter 028. Her testimony is transcribed in Exh. R-3 which was admitted into the record.

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was merged this biennium and, in fact, merged a collective bargaining with an unrepresented unit and while I don't mean to imply it cannot be done, it clearly can. There are details in terms of communications and how you bring people into that, that we discovered as we went through the process that I think we have learned some lessons in terms of how to make that a smoother transition for employees and for work units so you have the least impact on productivity. So it's not to imply that it cannot be done.

"* * * * *

"Johnson: Okay. They - what you describe and what we're describing is fairly different in that we're moving function, not people. And that's a very big difference in the process and that is caused by the need for - by the fact that the environment is totally different than ODOTvs. PUC. And so, it's a completely different animal than what you are describing by quite a bit in that if you move the way you're describing in what this bill does. Just so you know."

5. Effective July 19, 1995, the legislature adopted SB 1149 (Oregon Laws 1995, chapter 733), which reorganized the regulation of motor carrier transportation, transferred responsibility for such regulation from PUC to ODOT, and authorized ODOT to create new positions to fulfill the transferred responsibility. SB 1149 also provided that affected PUC employees were eligible for transfer, promotion, demotion, and reemployment into the new ODOT positions at ODOT's discretion. The transfer of the responsibilities and positions became effective January l, 1996.

6. At the time SB 1149 was passed, the ODOT employees were represented by SEIU andAEE, but the PUC employees were not represented. SB 1149 addressed the merger of the unrepresented PUC employees into ODOT:

"The initial filling of positions created by the transfer of duties, functions and powers under this Act is not subject to the provisions of any collective bargaining agreement. Thereafter, the positions are subject to inclusion in a bargaining unit if petitioned for in accordance with ORS 243.650 to 243.782." Oregon Laws 1995, chapter 733, section 1(4).

7. In January 1996, pursuant to SB 1149, ODOT established the Motor Carrier Transportation Division (MCTD), which consisted, in part, of the newly-established positions that had been transferred from PUC. ODOT assigned these transferred positions an identification number beginning with 860 to indicate that these positions originally came from PUC. The transferred positions at issue in this petition were classified as motor carrier specialists. Pursuant to SB 1149, none of the employees

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hired or transferred to fill the newly-established MCTD pos1t10ns were included in the existing AEE or SEIU bargaining units, and the employees in these positions remain unrepresented by a labor organization up to the present time.

8. Since 1995,AEE and the State have negotiated seven collective bargaining agreements which covered ODOT employees represented by AEE. The recognition clauses in those agreements, including the agreement adopted after the transfer of the positions from PUC in 1996, did not materially change. AEE and the State attached a list of classifications to their agreements through 2003. Although the lists were not labeled Appendix: A, AEE and the State intended these lists to be the AppendL'{ A referenced in those agreements' recognition clauses. These lists did not include the classifications of motor carrier specialist or compliance specialist.

9. In 2002, the State conducted a classification study, the purpose of which was to minimize or eliminate agency-specific classifications. As a result of the study, the State created the general statewide classifications of compliance specialist 1, 2, and 3. Sometime after the State established the compliance specialist classification series, ODOT allocated the MCTD motor carrier specialist employees into the classifications

. of compliance specialist 1 (C5246U), compliance specialist 2 (C5247), and compliance specialist 3 (C5248). The U in the classification number for the compliance specialist 1 denoted that the classification is unrepresented. The reclassified MCTD compliance specialist employees remained unrepresented.

10. At the same time the MCTD motor carrier specialists were reclassified, ODOT reclassified an employee in a program tech 2 position in ODOT's Rail Division as a compliance specialist 3. This Rail Division employee, who had been represented by AEE as a program tech 2, continued to be represented by AEE after the reclassification.

11. AEE and the State did not agree on a collective bargaining agreement for the 2003-05 contract period, but operated under terms of employment implemented by the State. These terms were set out in a document entitled "2003-05 Collective Bargaining Agreements." The compliance specialist classifications were not included in the attached list of classifications, which AEE and the State intended to be AppendL'{ A. Compliance specialists were also not included in a list of new and revised classifications in Article 53 of the agreement.

12. Effective October 1, 2005, AEE and the State executed their 2005-07 Collective Bargaining Agreement, which covered ODOT employees represented by AEE. Attached to this agreement was a docume1;1t entitled "COMPENSATION PLAN," which AEE and the State intended to be the AppendL'{A referred to in the recognition clause. This plan consisted of a list of classification numbers and titles, including compliance

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specialist 1 (class number C5246), compliance specialist 2 (class number C5247), and compliance specialist 3 (class number C5248). The plan also set out each classification's salary range. AEE and the State did not negotiate over the addition of the compliance specialist classification series to this compensation plan. The State added the compliance specialist series to Appendix A as part of its process of updating the list of classifications and respective salary ranges for employees represented by AEE. AEE and the State also did not include the compliance specialist series under the list" of new and revised classifications in Article 53 in this agreement.

13. On November 16, 2007, AEE and the State executed their 2007-09 Collective Bargaining Agreement. The recognition clause in this Agreement provided in relevant part:

"The Employer recognizes the Association as sole and exclusive bargaining agent for all employees ·within the appropriate bargaining units, both existing and to be determined in the future, for which the Association is certified or recognized, except temporary employees and those employees excluded by law or by determination of the Employment Relations Board.

"Classifications represented by the Association within the Oregon Department of Transportation ( ODOT), the Oregon Parks and Recreation Department (OPRD) and the Depaitment of Forestry (FORESTRY) are listed inAppendixA, including such other classes as may from time to time be determined as appropriate through the Employment Relations Board (ERB) process."

Attached to the 2007-09 Agreement is a document entitled "AEE NEW CLASSIFICATION PLAN,'' which the parties intended to be the Appendix A referred to in the recognition clause. The plan consisted of a list of class numbers, titles, and salary ranges. This plan included the compliance specialist classification series.

14. Dawn Nicholson has worked as the AEE co-executive director since October 2007. She previously worked in ODOT's Human Resources Department. While employed at ODOT, Nicholson became aware that the employees in the compliance specialist classifications at MCTD were unrepresented. The MCTD employees worked in a different building than other ODOT employees represented by AEE.

15. In January 2008, Nicholson notified the AEE executive board at its quarterly meeting that she believed the unrepresented MCTD compliance specialists

· should be included in the AEE bargaining unit. Prior to this, Michael Tedesco, an attorney who has represented AEE in negotiations since 1995, was not aware of the unrepresented MCTD compliance specialists.

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16. In early 2008, AEE representatives set up a table at the MCTD facility and provided information about AEE to the MCTD compliance specialists. On April 24, 2008, AEE filed a grievance pursuant to Article 36 of the AEE-State 2007-09 Agreement, asserting that the MCTD compliance specialists are, or should be, included in the bargaining unit under the recognition clause. On June 23, 2008, the State denied the grievance at step 3. AEE did not appeal this grievance to arbitration.

17. On January 26, 2010, subsequent to the filing of this petition,AEE and the State executed their 2009-11 Agreement, which covers ODOT employees represented by AEE. The recognition clause in the 2009-11 Agreement is identical to that in the 2007-09 Agreement. AEE and the State mistakenly failed to attach a list of classifications, a compensation plan, or an Appendix A to this Agreement.

18. There are currently 70 employees in the petitioned-for compliance specialist positions. These 70 compliance specialists all work at MCTD, and are currently unrepresented. Sbcty-six of the 70 compliance specialists have the number 860 in their position identification numbers, which reflects that their positions originally came from PUC. Of the remaining four compliance specialists, two are in positions that originally came from PUC but were later abolished and reestablished as compliance specialist positions; and the other two are in positions that did not come from PUC, but are performing the same functions as the positions that came from PUC.

19. There is currently one employee in a compliance specialist 3 position in the ODOT Rail Division who is represented by AEE. In addition, three unrepresented ODOT management service employees. currently work in compliance specialist 3 positions, including two managers in Technical Services and one manager at MCTD.

20. The Appendix A classification plan, which was attached to the 2007-09 AEE-State Agreement, also includes an administrative specialist 2 classification. Some ODOT employees who work in administrative specialist 2 positions are represented by SEIU. Three ODOT employees who work in administrative specialist 2 positions in the audit section of the MCTD are currently unrepresented. 6

6There is no evidence in the record that AEE represents any employees in the administrative specialist 2 classification at ODOT. We note that Kermit Meling, a witness in the SEIU companion case (UC-26-09), testified that SEIU represents all of the ODOT employees in the administrative specialist 2 classification, except for the unrepresented administrative specialist 2 employees sought under its petition.

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CONCLUSIONS OF LAW


2. The MCTD compliance specialists are not included in the AEE bargaining unit under the express terms of the parties' collective bargaining agreement.

DISCUSSION

AEE seeks to determine whether the petitioned-for employees are included in its bargaining unit under OAR 115-025-0005(3), which provides:

"When the issue raised by the clarification petition is whether certain positions are or are not included in a bargaining unit under the express terms of a certification description or collective bargaining agreement, a petition may be filed at any time; except that the petitioning party shall be required to exhaust any grievance in process that may resolve the issue before such a petition shall be deemed timely by the Board."

AEE asserts that the MCTD compliance specialists are included in its bargaining unit based on the express language of the AEE-State contract recognition clause. It contends that because the recognition clause establishes AEE as the exclusive representative for the positions listed in Appendix A, and because Appendix A lists the compliance specialist classification series, these positions are clearly and unambiguously included in the AEE unit. AEE also points out that if this Board has any doubts about the inclusion of the compliance specialists based on the recognition clause, such doubts are to be resolved in favor of inclusion. Salem Education Association v. Salem School District 24] and Oregon School Emplqyees Association, Case Nos. C-262-79 and C-2/73-80, 6 PECBR4557 (1981). Finally, AEE argues that even if the positions at issue under this petition are subject to the representation limitations established in SB 1149, AEE has met the requirements of SB 1149 by filing this petition.

ODOT objects to the petition on the basis that AEE is really attempting to add positions to the bargaining unit which have been historically excluded from the bargaining unit since the transfer of these positions to ODOT in 1996. ODOT argues that the parties never intended these employees to be in the AEE bargaining unit, that under SB 1149 these positions cannot lawfully be added to the AEE bargaining unit without a petition requiring a majority showing of interest or a secret ballot election, and that AEE waived its right to represent these employees by not previously seeking to represent them during the past 14 years.

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Standard of Review

OAR 115-025-0005(3) was adopted subsequent to this Board's consideration of a variety of unit clarification issues in Salem School Dist1ict 24/ and Oregon School Emplqyees Association, 6 PECBR 4557. In regard to issues presented under a subsection (3) petition, we explained:

"This Board generally will look only to the express language of the certification description or of the collective bargaining agreement in deciding whether the disputed positions are included or excluded. The express terms of the certification or agreement clearly must not include the disputed positions for this Board to find that they are excluded from the unit. Doubts will be resolved in favor of inclusion in the unit." Id. at 4572-73.

In Oregon AFS0\1E Council No. 75 v. Housing Auth01ity of Portland, Case No. UC' 19-92, 13 PECBR 730 ( 1992), we reviewed our application of OAR 115-025-0005(3) since its adoption. We clarified that

"[u]nder subsection (3), the question presented is whether the positions sought are or are not included under the express terms of the certification or of the collective bargaining agreement. Accordingly, the focus in such cases is very narrow. Where the parties have an honest disagreement about the scope of the unit based on the interpretation of the certification description or contract recognition language, a subsection (3) petition gives the parties a vehicle to resolve the disagreement. See, e.g., AFSCME Council 75 v. Clatsop County, Case No. UC-72-91, 13 PECBR [619 (1992)].

"A subsection (3) petition does not add positions to a bargaining unit. The positions are already in or out based on the certification description and/or collective bargaining agreement. This Board merely interprets the certification or recognition language to determine the status of the positions. In general, if the facts indicate the petition is an attempt to expand the unit, the petition is not appropriate under subsection (3) and will be dismissed." 13 PECBR at 735. (Emphasis in original, footnotes omitted.)

We analyze the language of a collective bargaining agreement to determine whether certain positions are included in a unit as follows:

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"This Board interprets collective bargaining agreements in the same manner as do courts. The overriding rule in the construction of contracts is the intention of the parties. We look to the language of the contract and to other relevant circumstances, including the course of conduct of the parties in their performance of the contract, to determine intent." Oregon Public Emplqyees Union, SEIU, Local 503 v. State of Oregon, Oregon State Hospital, Case No. UC-37-96, 17 PECBR434, 440 (1997).

However, we later clarified that "we ·will examine the parties' prior actions or practice as an aid to contract interpretation on!Jl if the contract language is ambiguous" and, where ·we find that the contract language unambiguously includes the employees in the bargaining unit, we will "not consider how the parties conducted themselves in the past." Oregon AFSCME Council 75, Local 2831 JJ. Lane County, Case No. UC-04-09, 23 PECBR 416, 425 (2009) (Emphasis in original).

Analysis

We conclude that the employees in the MCTD compliance specialist positions are not included in the AEE bargaining unit based on the express language of the AEE-S tate collective bargaining agreement. The recognition clause in the 2007-09 agreement is the same as the recognition clause that was in effect when SB 1149 was adopted in 1995. That recognition clause contains a specific bargaining unit exclusion for "those employees excluded by law." Under SB 1149, the petitioned-for positions were clearly excluded by law from the AEE bargaining unit at the time the positions were transferred to ODOT.7

AEE asserts that the MCTD compliance specialists became included in the AEE bargaining unit under the express language of the 2005-07 and 2007-09 agreements, when the compliance specialist classifications were added to Appendix A. However, SB 1149 also provided that "[t]hereafter, the positions are subject to inclusion in a bargaining unit if petitioned for in accordance with ORS 243.650 to 243.782." No petition to include the MCTD compliance specialists in the AEE unit was filed prior to this petition. Under SB 1149, the inclusion of the compliance specialist classification in Appendix A alone did not bring these positions into the AEE bargaining unit.

7For an analysis of SB 1149, see SEIU Local 503, OPEU v. State of Oregon, Depmtment of Transportation, Case No. UC-26-09, 24 PECBR_ (2011) (decided this date).

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AEE argues that it has now met the requirements established in SB 1149 to clarify these employees into its bargaining unit by filing the present petition under OAR 115-025-0005(3). SB 1149 does provide for the inclusion of these employees into a bargaining unit as a result of a petition and does not, in itself, prohibit petitions filed under OAR 115-025-0005(3). However, SB 1149 states that a petition to include the employees in the transferred positions must be filed "in accordance with ORS 243.650 to 243.782." Therefore, the issue is not whether a subsection (3) petition is appropriate under SB 1149; it is whether a subsection (3) petition seeldngto include these positions, which had previously been excluded under SB 1149, is appropriate under the Public Employee Collective Bargaining Act (PECBA), mies, and case law.

Under the applicable PECBA authority, a subsection (3) petition is not appropriate in this case. The positions at issue here were not initially, and have never been, included in the AEE unit. Thus, AEE is really seeldng to add these previously unrepresented employees to its bargaining unit under this subsection (3) petition. Yet, OAR 115-025-0005(3) "was not intended, nor has it been applied, as a vehicle to expand bargaining units or as a tool to add unrepresented positions to bargaining units." Portlaud Association of Teachers v. Portland School District lf, Case No. UC-44-01, 19 PECBR 939, 945 (2002). Consistent with our prior cases, we 1,vill not use subsection (3) to add positions to the AEE bargaining unit.

AEE contends that under our decision inLane County, 23 PECBR 416, we should not even consider that these employees were previously excluded from the bargaining unit under SB 1149. In the Lane County case, we concluded that the petitioned-for employees were included in the bargaining unit based on the express terms of a contract recognition clause. In reaching our decision in that case, we applied the general mies of contract interpretation we had identified in Lincoln County Education Association v. Lincoln County School Distlict, Case No. UP-14-04, 21 PECBR 20, 29 (2005) (citing Yogman v. Parrott, 325 Or 358, 937 P2d 1019 (1997)). Based on our analysis, we decided that since the contract language was clear and unambiguous, we would not consider the parties' prior actions or conduct.

Our decision in Lane County is distinguishable from the present case for two reasons. First, as we previously pointed out, the recognition clause in this case specifically provides for a bargaining unit exclusion of "all others excluded by law." Accordingly, based on the language of the recognition clause itself, we are required to consider any exclusions from the bargaining unit established by law. As such, pursuant to SB 1149, the petitioned-for employees clearly have been and are currently excluded from the bargaining unit. Therefore, even under the express language of the recognition

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clause, AEE is seeking to add positions to its bargaining unit which were previously excluded. Subsection (3) cannot be used to add unrepresented positions to an existing bargaining unit. Lane County, 23 PECBR at 424.8

In addition, unlike the recognition clause in Lane County, the contract language here can reasonably be given several plausible interpretations, and thus is ambiguous. 9

Portland Fire Fighters' Associatio11 v. City of Portland, 181 Or App 85, 91, 45 P3d 162, rev den, 334 Or 491 (2002). Accordingly, we can consider "other relevant circumstances, including the course of conduct of the parties in their performance of the contract," to determine the parties' intent. Oregon State Hospital, 17 PECBR at 440. Based on the text of the disputed provision as a whole and other extrinsic evidence, we conclude that the parties did not intend to include the MCTD compliance specialists in the AEE bargaining unit by adding the compliance specialist series to Appendb: A.

AEE argues that we should find the compliance specialists are clearly included in the bargaining unit based on the second paragraph of the parties' recognition clause and the attached Appendix A. However, we must consider the text of the disputed provision as a whole. Lincol11 County School District, 21 PECBR at 29. The first paragraph of the recognition clause provides that the State has recognized AEE as the "sole and exclusive bargaining agent for all employees within the appropriate bargaining units, both existing and to be determined in the future, for which the Association is certified or recognized, * * * ." (Emphasis added.) Yet, these existing "appropriate bargaining units" are not defined in the recognition clause or elsewhere in the contract, either directly or by reference to any other document. Furthermore, neither party produced evidence regarding the scope of the existing bargaining unit. Therefore, the exact scope of these "appropriate bargaining units" ofwhichAEE is the "sole and exclusive bargaining agent" is unclear.

8A union can petition to add unrepresented employees to an existing bargaining unit under OAR 115-025-0005(4). Subsection (4) requires the petition to be accompanied by a showing of interest from at least 30 percent of the unrepresented employees. If the Board determines that it would be appropriate to add the unrepresented employees to the existing unit, it will conduct a secret ballot election of the unrepresented employees. If a majority of those voting favor inclusion in the existing bargaining unit, the Board will clarify the bargaining unit description to include those positions.

9The recognition clause in Lane Counry, which this Board found to be clear and unambiguous, provided that the union was "the sole and exclusive representative of all tempora1y, probationaiy, and non-probationary employees in permanent positions." 23 PECBR at 424.

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The second paragraph of the recognition clause provides that "[c]lassifications represented by the Association within [ODOT, OPRD, and FORESTRY] are listed in Appendix A, including such other classes as may from time to time be determined as appropriate through the Employment Relations Board (ERB) process." One plausible interpretation of paragraph two is that AEE represents all of the employees in the classifications listed in Appendix A. However, while the parties used the term "all employees" in paragraph one, they did not include that term in paragraph two. We assume that the parties understood the meaning of the words they chose. Appendix A does not provide further clarity. It is essentially a compensation plan that includes a list of class titles and their respective numbers and salary ranges. Taking into account the absence of the term "all employees" from the second paragraph, and the text of the recognition clause as a whole, another plausible interpretation is that the parties intended that AEE would represent the positions listed in Appendix A that are also within the existing "appropriate bargaining units" referred to in paragraph one. Therefore, whether the parties intended that all employees in all of the classifications listed in Appendix A are included in the AEE bargaining unit is unclear.

Having concluded that the contract language is ambiguous, we next attempt to interpret the contract language by examining the extrinsic evidence of the parties' intent. Li11coln County School District, 21 PECBR at 29. As part of our consideration of extrinsic evidence, we examine "the parties' prior actions or practice as an aid to contract interpretation." La11e County, 23 PECBR at 425. In addition, we consider the parties' bargaining history in attempting to resolve ambiguities. Association of Oregon C01rectio11s Empli!Jlees JI. State ef Oregon, DOC, Case No. UP-33-03, 20 PECBR 890 (2005), rev'd and rem'd, 209 Or App 761, 149 P3d 319 (2006), order 011 remand, 23 PECBR 222, 240 (2009), appeal pending. We also consider "the legal landscape at the time the parties entered their agreements." Id., 23 PECBR at 239.

In considering the parties' actions and practice, we find it significant that not all employees in the classifications listed in Appendix A are represented by AEE. Some employees in the administrative specialist 2 classification, which is included in Appendix A, are either represented by SEIU or are unrepresented. In fact, there is no evidence in the record that AEE represents any of the ODOT employees in this classification. We recognize that the administrative specialist 2 is only one classification in Appendix A. However, this evidence does not supportAEE's interpretation that it represents all of the employees in all of the classifications listed in Appendix A.

There also is no bargaining history to support AEE' s interpretation. No evidence of the parties' bargaining discussions regarding the recognition clause itself was introduced at the hearing. There is also no evidence of bargaining history concerning an agreement to add the compliance specialist series to Appendix A. We do know that the

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compliance specialist series was not included under the list of new or revised classifications in Article 53 either at the time it was added to Appendix A or in subsequent contracts. The only evidence regarding the addition of the compliance specialist series to Appendi.x A is that it was an administrative action taken by the State to update Appendix A to reflect the compensation to be paid to compliance specialist employees represented by AEE. This evidence does not support AEE's interpretation.

A number of other factors in this case also weigh against an interpretation that the parties intended the petitioned-for positions to be included in the bargaining unit under the parties' recognition clause. The petition seeks to clarify the status of 70 historically-unrepresented employees. These employees work in an area separate and distinct from other AEE employees. In fact, the current AEE representatives ·were not even aware of these employees at the time the compliance specialist classifications were added to Appendix A. As a result, it is difficult for us to believe that it was the intent of the parties to bring this group of MCTD compliance specialists within the AEE bargaining unit when the compliance specialist classifications were added to Appendix A. Therefore, we conclude that the MCTD employees are not included in the AEE bargaining unit under the express language of the parties' collective bargaining agreement, and accordingly, we dismiss the petition.

ORDER


Viclkowan, Board Member



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OF THE

STATE OF OREGON

Case No. UC-26-09


SEIU LOCAL 503, OPEU,

Petitioner,

v.


Respondent.

) ) ) ) ) ) ) ) ) )

~~~~~~~~~~~~~~~~)


On December 6, 2010, this Board heard oral argument on Petitioner's objections to a Recommended Order issued on August 10, 2010, by Administrative Law Judge (ALJ) Wendy L. Greenwald, following a hearing conducted on April 12, 20i0, in Salem, Oregon. The record closed on May 17, 2010, upon receipt of the parties' post-hearing briefs.

Joel Rosenblit, Attorney at Law, SEIU Local 503, OPEU, Salem, Oregon, represented the Petitioner.

Francis J. Connell, III, Senior Assistant Attorney General, Department ofJustice, Salem, Oregon, represented the Respondent.

On November 5, 2009, SEIU Local 503, OPEU (SEIU) filed a unit clarification petition under OAR 115-025-0005(3). As amended on February 5, 2010, the petition asserts that the positions of office specialist 1 and 2, transportation service representative 2, and administrative specialist 2, at the State of Oregon (State), Department of Transportation (ODOT), are included in the existing SEIU bargaining unit based on the express terms of the bargaining unit's certification description.

ODOT filed timely objections to the petition. It asserts that 1) the petition does not comply with the filing requirements under OAR 115-025-0010(4); 2) a unit clarification petition is not appropriate because a question of representation exists; 3) a petition under OAR 115-025-0005(3) is not appropriate because SEID seeks to add positions which have been excluded from the SEID bargaining unit since 1996; 4) SEID waived its right to add these positions under OAR 115-025-0005(3) by failing to previously assert representation of these positions; and 5) pursuant to Senate Bill 1149 (SB 1149), these positions cannot lawfully be added to the bargaining unit without a secret ballot election or other majority showing of interest. 1

The issue is: Are the positions of office specialist 1 and 2, transportation service representative 2, and administrative specialist 2 included in the SEID bargaining unit under the express terms of the bargaining unit certification?

RULINGS

1. On November 5, 2009, in conjunction with this petition, the Association of Engineering Employees (AEE) filed a separate but similar petition under OAR 115-025-0005(3). It asks us to determine whether the ODOT employees in the positions of compliance specialist 1, 2, and 3 which, like the positions at issue here, were transferred from the Public Utility Commission (PUC) in 1996, are included in its bargaining unit. See Association of Engineering Emplqyees v. State of Oregon, Department of Transportation, Case No. UC-25-09, 24 PECBR_ (2011) (decided this date). AEE and SEID requested that the ALJ consolidate these petitions for hearing. ODOT objected to the consolidation because AEE's and SEIU's petitions addressed different groups of employees, consolidation would make the hearing unduly cumbersome and confusing, and the facts that these matters had in common were likely undisputed. Prior to the hearing, the ALJ ruled that the two matters would be consolidated for purposes of the hearing and recommended order to avoid repetition of facts, but that the testimony pertinent to each labor organization's case would be segregated. After the hearing, however, the ALJ severed these cases for purposes of the recommended order because AEE and SEID presented different legal arguments in support of their petitions. We adopt the ALJ's ruling which consolidates these cases for purpose of hearing only, but severs them for issuance of the recommended orders.

1Issues regarding the sufficiency of the initial petition were addressed by SEIU in its amended petition.

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FINDINGS OF FACT

I. SEIU is the exclusive representative of a bargaining unit of approximately 19,500 State employees in at least 41 agencies and commissions. The State is a public employer. SEIU's bargaining unit includes ODOT employees in a variety of classifications, including the classifications of office specialist 1 and 2, transportation service representative 2, and administrative specialist 2.

2. 1967.2

3. include:

SEIU has represented a bargaining unit of employees at ODOT since

On February 16, 1977, this Board clarified SEIU's bargaining unit to

"all classified employes of the Department of Transportation; excluding those employes of the Department of Transportation in the Motor Vehicle Division Unit and excluding those employes in the Engineering and Allied Unit; and further excluding therefrom, supervisors and confidential employes and all others excluded by law and Board Order. "3

4. In 1981, the State and SEIU entered into a collective bargaining agreement in which the parties agreed to merge all of their existing agency-level bargaining units into a single statewide bargaining unit of all State employees represented by SEIU. The agency bargaining unit at ODOT was merged into this statewide bargaining unit.

2The union currently known as SEIU has changed its name several times since 196 7. It was originally known as the Oregon State Employes Association, and then became the Oregon Public Employees Union, Local 503, before taking its current name. For ease of reference, we use the name SEIU throughout this order.

3We take official notice of the certification of representative issued by this Board as a result of the election ordered inAssociation of E11ginee1ing Emphryes v. Depmtment of Tm11sp01tatio11, Case No. C-136-75, 2 PECBR 875, 885 (1976). This certification was attached to the petition, but was not included as an exhibit by the parties. The Engineering and Allied Unit referred to in the certification was AEE's prior name.

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5. The recognition clause in the SEIU-State 1995-97 Collective Bargaining Agreement provided in part:

. "Sectibn 1. The Employer recognizes the Union as the exclusive bargaining representative for all classified and unclassified employees in positions 'represented by the Union in the Agencies listed in Section 2 below. This recognition does not apply to exempt, CETA, temporary, supervisory, managerial and confidential employees as defined by law or as determined by the Employment Relations Board * * *.

"Section 2. "(a) The Employer and the Union have established a single bargaining unit of employees represented by the Union and employed by the Oregon Youth Authority/Department of Youth Authority * * *. "(b) The Employer and the Union have established a single bargaining unit which is not prohibited from striking. This unit is made up of employees located at the follovving agencies: * * * Department of Transportation***."

6. Prior to 1981, SEIU represented a separate agency-level bargaining unit of employees at PUC, which included employees who worked in the area of motor carrier transportation regulation. In 1981, the SEID-represented employees at PUC also became part of SEIU's statevvide bargaining unit. In 1984, these PUC employees voted to decertify SEIU as their bargaining representative and became unrepresented employees.4

7. In 1995, the Oregon legislature considered SB 1149, the purpose of which was to transfer the task of regulating motor carrier transportation from PUC to ODOT. On May 18, 1995, the Joint Committee on Ways and Means held a work session regarding a variety of issues related to SB 1149. One issue concerned the impact of the transfer of the unrepresented PUC positions into ODOT, whose employees were represented. At the beginning of the session, Theresa McHugh from the State

4Although the PUC employees were part of the SEIU statewide unit when the decertification petition was filed, this Board allowed the petition to go forward based on the language in the SEIU-State 1983-85 Collective Bargaining Agreement that recognized the prior agency bargaining units during the first 90 days of the agreement for the purpose of allowing the employees in each agency to file fair share deauthorization or election petitions. Solidarity v. Public Utility Commissioner and Oregon Public Empl'!)'eS Union, Case No. C-143-83, 7 PECBR 6414, 6420 (1984).

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Department of Administrative Services (DAS) addressed the committee regarding issues related to "the agreements necessary to make the collective bargaining changes * * *. "5

In response, Representative Johnson expressed frustration at DAS's lack of understanding of the issues:

"Johnson: * * * Collective bargaining-you talk about collective bargaining changes - there are no collective bargaining issues. PUC is non-union and you talk about there being collective bargaining. There is nothing. Not one single thing affecting collective bargaining. The leadership of the (inaudible) party to talk about how would he make it work when they become union. They don't have to become union. But you obviously didn't even know that in fact there is no collective bargaining party in PUC or you wouldn't - customer service [sic], talk about that.

"* * * * *

"McHugh: I am aware of the issues in terms of representation, Representative Johnson. I came [sic] and work now ·with an agency that was merged this biennium and, in fact, merged a collective bargaining with an unrepresented unit and while I don't mean to imply it cannot be done, it clearly can. There are details in terms of communications and how you bring people into that, that we discovered as we went through the process that I think we have learned some lessons in terms of how to make that a smoother transition for employees and for work units so you have the least impact on productivity. So it's not to imply that it cannot be done.

"*****

"Johnson: Okay. They - what you describe and what we're describing is fairly different in that we're moving function, not people. And that's a very big difference in the process and that is caused by the need for - by the fact that the environment is totally different than 0 DOT vs. PUC. And so, it's a completely different animal than what you are describing by quite a bit in that if you move the way you're describing in what this bill does. Just so you know."

5McHtigh's testimony at the May 18 Ways and Means Committee work session on SB 1149 begins on tape 133, side A, counter 028. Her testimony is transcribed in Exh. R-3 which was admitted into the record.

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8. Effective July 19, 1995, the legislature adopted SB 1149 (Oregon Laws 1995, chapter 733), which reorganized the regulation of motor carrier transportation, transferred responsibility for this regulation from PUC to ODOT, and authorized ODOT to create new job positions to perform the transferred responsibility. SB 1149 also provided that affected PUC employees were eligible for transfer, promotion, demotion, and reemployment into the new positions at ODOT's discretion. The transfer of responsibilities and positions became effective January 1, 1996.

9. When SB 1149 was passed, the employees at ODOT were represented by SEIU and AEE, but the PUC employees were unrepresented. SB 1149 addressed the merger of the unrepresented employees into ODOT:


10. In January 1996, pursuant to SB 1149, ODOT established the Motor Carrier Transportation Division (MCTD). MCTD consisted of both existing SEID-represented ODOTpositions and the newly-established positions which had been transferred from PUC. The transferred positions included the classifications of office specialist 1 and 2, transportation service representative 2, and administrative specialist 2. ODOT assigned the transferred positions an identification number beginning with 860 to indicate that these positions originally came from PUC. Pursuant to SB 1149, the employees in the transferred positions were not included in the existingAEE or SEIU bargaining units, and until these proceedings, all parties treated them as unrepresented. The other MCTD employees, those who worked at ODOT at the time of the transfer and were represented by SEIU, continued to be represented by SEIU.

11. Since the 1995-97 Agreement, SEIU and the State have negotiated seven collective bargaining agreements which covered ODOT employees. The recognition clauses in these agreements, including the clause in the 2009-11 SEIU-State Collective Bargaining Agreement, did not materially change during those negotiations. The pertinent portions of the recognition clause are quoted in Finding of Fact 5.

12. There are currently 85 employees in the positions subject to this petition. ODOT established them as new positions in MCTD when it assumed PUC's responsibilities. Two of the these 85 positions, Dorothy Sebastian's administrative specialist 2 position (#8600086) and Vicky Busenberg's office specialist 2 position (#8600800), are currently located in ODOT's Financial Services Division.

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13. Of the 85 current employees who work in the positions transferred to ODOT in 1996, 23 employees worked in these positions at PUC prior to the transfer and were employed by ODOT at the time of the transfer; two employees were hired into the transferred positions in March 1996; and 60 employees were placed or hired into these positions sometime after May 1998. Of the 60 employees hired or placed in these positions after May 1998, 11 employees previously worked in positions represented by SEIU, but were transferred, demoted, promoted, or reassigned into these unrepresented positions.

14. As of March 2010, SEIU represented approximately 340 employees in the classifications of office specialist 1 and 2, transportation service representative 2, and administrative specialist 2 at ODOT. SEIU represents all of the ODOT employees in the positions of office specialist 1 and 2, transportation service representative 2, and administrative specialist 2, except for those employees who work in MCTD, the two employees in financial services, and the four employees in HR.

CONCLUSIONS OF LAW


2. The positions transferred from PUC to ODOT in 1996 are not included in the SEIU bargaining unit under the express terms of the bargaining unit certification description.

DISCUSSION

In 1984, the employees who worked at PUC voted to decertify SEIU as their exclusive bargaining representative. As a result of the vote, these employees became unrepresented. The PUC employees were still unrepresented in 1995 when the legislature transferred some of PUC's duties to ODOT. SEIU represents employees at ODOT. The legislature recognized that the PUC employees had voted against union representation, and it ensured that the transfer would not change their unrepresented status. The transfer legislation stated that" [ t ]he initial filling of positions created by the transfer of duties * * * is not subject to the provisions of any collective bargaining agreement. Thereafter, the positions are subject to inclusion in a bargaining unit if petitioned for in accordance with" the Public Employee Collective Bargaining Act (PECBA). Oregon Laws 1995, ch 733, section 1(4).

SEIU filed this unit clarification petition under OAR 115-025-0005(3). It asserts that under the certification description, some of the positions transferred from PUC are included in the SEIU bargaining unit. OAR 115-025-0005(3) provides:

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SEIU argues that the express terms of the bargaining unit certification description include the positions of office specialist 1 and 2, transportation service representative 2, and administrative specialist 2, which were transferred from PUC to ODOT in 1996.6

That certification description, which this Board issued in 1977, established a bargaining unit of

"all classified employes of the Department of Transportation; excluding those employes of the Department of Transportation in the Motor Vehicle Division Unit and excluding those employes in the Engineering and Allied Unit; and further excluding therefrom, supervisors and confidential employes and all others excluded by law and Board Order." Association of Engineering Emplqyees v. Department of Transpo1tation, Case No. C-136-75, 2 PECBR 875, 885 (1976).

ODOT objects to the petition on the basis that SEIU is really attempting to add positions to the bargaining unit which have been historically excluded since the transfer of these positions to ODOT in 1996. ODOT argues that the parties never intended to include these employees in the SEIU bargaining unit, that under SB 1149 these positions cannot lawfully be added to the SEIU bargaining unit without a petition requiring a majority showing of interest or a secret ballot election, and that SEIU waived its right to represent these employees by not seeking to represent them during the past 14 years. We agree that under SB 1149, the existing certification description does not include the transferred PUC positions, and we accordingly will dismiss the petition.

6SEIU relies solely on a 1977 certification description for an ODOT agency-level bargaining unit, even though SEIU and the State later agreed to a recognition clause for a statewide bargaining unit of employees that includes ODOT. SEID concedes the contract's recognition clause is ambiguous in regards to the employees at issue here. However, since ODOT does not object to SEIU's reliance on the 1977 certification, we assume that the parties still use this certification to define the bargaining uni_t. We are not presented with, and do not decide, the impact, if any, of a recognition clause that differs from an earlier Board certification description.

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Standard of Review

This Board adopted OAR 115-025-0005(3) after it considered a variety of unit clarification issues in Salem Education Association v. Salem School District 24! and Oregon SchoolEmpll!)leesAssociation, Case Nos. C-262-79 and C-2/73-80, 6 PECBR 4557 (1981). In that case, we explained that in regard to issues presented under a subsection (3) petition,

" [ t ]his Board generally will look only to the express language of the certification description or of the collective bargaining agreement in deciding whether the disputed positions are included or excluded. The express terms of the certification or agreement clearly must not include the disputed positions for this Board to find that they are excluded from the unit. Doubts will be resolved in favor of inclusion in the unit." Id. at 4572-73.

In Oregon AFSCJ\1E Council No. 75 v. Housing Authority of Portland, Case No. UC-19-92, 13 PECBR 730 (1992), we reviewed our application of OAR 115-025-0005(3) since its adoption. We clarified that

"[u]nder subsection (3), the question presented is whether the positions sought are or are not included under the express terms of the certification or of the collective bargaining agreement. Accordingly, the focus in such cases is very narrow. Where the parties have an honest disagreement about the scope of the unit based on the interpretation of the certification description or contract recognition language, a subsection (3) petition gives the parties a vehicle to resolve the disagreement. See, e.g., AFSCME Council 75 v. Clatsop County, Case No. UC-72-91, 13 PECBR [619 (1992)].

"A subsection (3) petition does not add positions to a bargaining unit. The positions are already in or out based on the certification description and/or collective bargaining agreement. This Board merely interprets the certification or recognition language to determine the status of the positions. In general, if the facts indicate the petition is an attempt to expand the unit, the petition is not appropriate under subsection (3) and will be dismissed." 13 PECBR at 735. (Emphasis in original, footnotes omitted.) ·

Under subsection (3), the issue is not whether the employees should be added to the bargaining unit; we decide only whether the employees are already included in the unit

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based on the express terms of the certification or contract description. Oregon AFS0\1E Council 75, Local 2831 v. Lane County, Case No. UC-04-09, 23 PECBR 416, 424 (2009).

Analysis

We apply these principles and conclude that the positions transferred from PUC to ODOT in 1996 are not included in the SEIU bargaining unit based on the express language of the certification description. We begin by examining the language of the certification description. It establishes SEIU as the exclusive bargaining representative for

"all classified employes of the Department of Transportation; excluding those employes of the Department of Transportation in the Motor Vehicle Division Unit and excluding those employes in the Engineering and Allied Unit; and further excluding therefrom, supervisors and confidential employes and all others excluded by law and Board Order."

SEIU focuses on the portion of the description which designates it the exclusive bargaining representative for "all classified employes of the Department of Transportation." If that were the entire description of the bargaining unit, SEIU's argument might have merit. But it is not the entire description. It also contains a number of exclusions from the unit, including "all others excluded by law." ODOT asserts that SB 1149 is a law that specifically excludes the positions transferred from PUC from the SEIU bargaining unit.

Thus, to interpret the phrase "all others excluded by law" as contained in the certification description, we must in turn interpret SB 1149 to determine if it creates such an exclusion. To interpret a legislative enactment, we first consider its language, in context, along with any pertinent legislative history the parties offer; if the language remains ambiguous after this analysis, we apply maxims of statutory constniction. State v. Gaines, 346 Or 160, 206 P3d 1042 (2009).

Accordingly, we begin by examining the language of SB 1149. It states in . pertinent part:


SEIU concedes that this language prevented employees hired into the transferred positions from becoming members of the SEIU bargaining unit. It argues, however, that

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the ban applies only to those initially hired into the positions. It points out that 60 of the 85 employees currently in the disputed positions are not initial hires, but rather are employees who replaced the initial hires. According to SEIU, those 60 employees are members of its bargaining unit, and anyone who thereafter replaces one of the remaining initial hires also becomes a bargaining unit member. This is not a plausible interpretation of SB 1149.

First, the statute expressly applies to "positions." It is "positions" that are excluded from the bargaining unit. SEIU's argument relies not on the positions, but rather on the status of the employees who fill the positions. This is contrary to the plain language of SB 1149. 7

Second, the stnicture of SB 1149 belies SEIU's argument. SB 1149 begins with a statement that the "initial filling of positions" created by the transfer of duties from PUC are not subject to a collective bargaining agreement. It then provides that "thereafter," positions can be included in a bargaining unit only if petitioned for under the Public Employees Collective BargainingAct (PECBA). "Thereafter" means "after that * * *: from then on: THENCEFORTH." Webster's Third New Int'/ Dictionmy 2372 (unabridged ed 1971). Thus, based on the plain meaning of the words used in SB 1149, the "initial filling of the positions" is not subject to a collective bargaining agreement, and from then on, i.e., after the initial filling, the positions can become part of a bargaining unit only through a petition filed under the PECBA. There is no moment in time after the initial filling of the positions when they could become subject to collective bargaining without a petition filed under the PECBA. SEIU's argument that the positions automatically became part of the bargaining unit after they were initially filled but before any petition was filed is contrary to the plain language of SB 1149.8

The final question is whether to grant SEIU's petition under subsection (3). As described earlier, the only question under subsection (3) is whether the positions in question-here, the positions transferred from PUC to ODOT under SB 1149-are already included in the bargaining unit under the language of the certification description. Housing Auth01ity of Portland, 13 PECBR at 735; Lane County, 23 PECBR at 424.

7The legislative history confirms this interpretation. Representative Johnson made clear that the bill involved "moving function, not people."

8Legislative history supports the interpretation that the transferred positions do not become unionized without any action by the employees. Representative Johnson stated during a work session on SB 1149, "They don't have to become union." This is contrary to SEIU's argument that employees hired to replace the initial hires for the transferred jobs automatically became members of the bargaining unit.

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The certification description for the SEIU bargaining unit does not include those "excluded by law." For the reasons discussed above, SB 1149 excludes the transferred PUC positions from the SEIU (or any other) bargaining unit, except through a petition filed under the PECBA.9 Subsection (3) "was not intended, nor has it been applied, as a vehicle to expand bargaining units or as a tool to add unrepresented positions to bargaining units." Portland Association of Teachers v. Portland School District If, Case No. UC-44-01, 19 PECBR 939, 945 (2002). These positions were not initially, and have never been, included in the SEIU unit under the certification description. Subsection (3) is not the proper vehicle to add these unrepresented positions to the SEIU bargaining unit. 10 Accordingly, we dismiss the petition. 11

ORDER


DATED this / 2- day of May, 2011.


Vki4~anba Susan Rossiter, Board Member


9SEIU concedes, as it must, that the mere act of filing a petition _does not place the positions in its bargaining unit; SEIU must also prevail on the petition.

10A union can petition to add unrepresented employees to an existing bargaining unit under OAR 115-025-0005(4). Subsection (4) requires the petition to be accompanied by a showing of interest from at least 30 percent of the unrepresented employees. If the Board determines that it would be appropriate to add the unrepresented employees to the existing unit, it will conduct a secret ballot election of the unrepresented employees. If a majority of those voting favor inclusion in the existing bargaining unit, the Board will clarify the bargaining unit description to include those positions.

11Because we conclude that subsection (3) is not the appropriate way to add these employees to the SEIU bargaining unit, we do not need to consider ODOT's other objections.

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OF THE

STATE OF OREGON

Case No. UP-30-07


OREGON STATE POLICE OFFICERS' ASSOCIATION,

Complainant,

v.

STATE OF OREGON, OREGON STATE POLICE,

Respondent.

) ) ) ) ) ) ) ) ) ) )

~~~~~~~~~~~~~~~~)

FINDINGS AND ORDER ON RESPONDENT'S PETITION FOR REPRESENTATION COSTS

The Oregon State Police Officers' Association (Association) filed this unfair labor practice complaint which alleged that the Oregon State Police (OSP) violated ORS 243.673(l)(e) when it unilaterally changed employee working conditions by entering a work-sharing agreement with the Oregon Department of Transportation (ODOT). On January 27, 2009, this Board issued an Order which dismissed the complaint because it was not filed within the 180-day statute of limitations. 22 PECBR 970.

On February 4, 2009, OSP petitioned for representation costs. On February 10, 2009, the Association objected to the petition. On January 12, 2011, the Court of Appeals affirmed this Board's Order. The Board followed its normal procedure and held this petition for representation costs in abeyance until the appeal was complete. OAR 115-035-0055(5). The Court of Appeals issued its Appellate Judgment on March 23, 2011.

Pursuant to ORS 243.676(3)(a) and OAR 115-035-0055, this Board finds:

1. OSP filed a timely petition for representation costs and the Association filed timely objections to the petition.

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2. OSP is the prevailing party.

3. According to the affidavit of counsel, OSP incurred representation costs of $9,190. This represents 66.3 hours of attorney time billed at $126 per hour, and 11.3 hours of paralegal time billed at $74 per hour. We must first determine whether DOC seeks a reasonable hourly rate for a reasonable number of hours.

The Association does not object to the hourly rate, and we find it reasonable. Dallas Police Emplqyees Association v. City of Dallas, Case No. UP-33-08, 23 PECBR 510 (2010) (Rep. Cost Order) ($165-170 per hour is an average rate).

The Association asserts that the number of hours claimed is excessive. This case required one day of hearing. An average case requires approximately 45-50 hours of representation for each day of hearing. Oregon AFSCME Council 75 v. State of Oregon, Department of CoJTections, Case No. UP-5-06, 22 PECBR 479 (2008) (Rep. Cost Order); Blue Mountain Faculty Association/Oregon Education Association/NBA and Lamiman v. Blue A1ountain Community College, Case No. UP-22-05, 21 PECBR 853 (2007) (Rep. Cost Order). In fashioning our award, we will consider the time spent by a paralegal. See Association of Oregon Co1nctio11s Emplqyees v. State or Oregon, Department of Com:ctions, Case No. UP-16-05, 22 PECBR 51 (2007) (Rep. Costs Order) (paralegal time can be recovered as a representation cost if it is not duplicative). OSP spent 77.6 hours of combined attorney and paralegal time. OSP's request is considerably more than the average, a factor we vvill consider in our award.

4. This is a unilateral change case. The Association asserted that OSP unlawfully entered a work-sharing agreement vvith ODOT vvithout first bargaining to completion vvith the Association. We dismissed the complaint because it was not filed vvithin the 180-day statute of limitations. ORS 243.672(3). We held that it did not matter whether the statute began to run when the change occurred, or instead when the Association discovered or should have discovered it; the complaint was untimely under either test. The Court of Appeals affirmed our Order. 240 Or App 419, 246 P3d 97 (2011).

5. An average award is approximately one-third of a prevailing party's reasonable representation costs, up to the $3,500 cap. Benton County Deputy Sher!ffs Association v. Benton County, Case No. UP-24-06, 22 PECBR 46, 47 (2007) (Rep. Cost Order); OAR 115-035-0055(l)(a). We adjust that percentage up or down based on various policy considerations described in our rules and cases. We generally make an average award in subsection (l)(e) unilateral change cases. Northwest Education Association/OEA!NEA v. Northwest Regional Education Service Dist1ict, Case No. UP-23-06, 22 PECBR 482 (2008) (Rep. Cost Order). We typically reduce the award in cases that

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present novel legal issues so that parties are not deterred from litigating novel issues. Depmtment ef Co1nctio11s, 22 PECBR 479 (2008) (Rep. Cost Order). Here, as we noted in our Order, our cases have been inconsistent about whether to apply the discovery rule or the occurrence rule to statute of limitations cases. We will therefore make a smaller-than-average award.

Having considered the purposes and policies of the Public Employee Collective Bargaining Act (PECBA), our awards in prior cases, and the reasonable cost of services rendered, this Board awards the OSP representation costs in the amount of $1,650.

ORDER

The Association will remit $1,650 to OSP vvithin 30 days of the date of this Order.

DATED this lla__ day of May, 2011. _______ ,



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OF THE

STATE OF OREGON

Case No. UP-32-09


OREGON AFSCME COUNCIL 75, ) LOCAL #3997, )

) Complainant, )

) 'I. )

) DESCHUTES COUNTY, )

) Respondent. )

~~~~~~~~~~~~~-)


On December 22, 2010, this Board heard oral argument on Complainant's objections to a Recommended Order issued by Administrati'le Law Judge (ALJ) Peter L. Rader after a hearing conducted by ALJ Wendy L. Greenwald on February 12 and 24, 2010, in Salem, Oregon. The record closed on April 8, 2010, following receipt of the parties' post-hearing briefs.

Jason M. Weyand, Legal Counsel, Oregon AFSCME Council 75, Salem, Oregon, represented Complainant.

Christopher E. Bell, Assistant Legal Counsel, Deschutes County, Bend, Oregon, represented Respondent.

On July 24, 2009, Oregon AFSCME Council 75, Local #3997 (Union) filed an unfair labor practice complaint against Deschutes County (County) alleging that the County 'liolated ORS 243.672(l)(g) by failing to comply with the requirements of Article 14 of the parties' collecti'le bargaining agreement. The County timely filed an answer to the complaint.

The issue is: Did the County fail to comply with the requirements of Article 14 of the parties' collecti'le bargaining agreement, in 'liolation of 0 RS 243. 6 72 (1) (g), when it laid off Barbara Rich in 2009?

RULINGS

1. Respondent's Motion to Dismiss

At hearing, the County moved to dismiss the claim as untimely pursuant to ORS 243.672(3), which provides that an injured party may file a written complaint "not later than 180 days following the occurrence of an unfair labor practice." The County alleges that the 180-day filing period commenced on January 15, 2009, when the County notified Rich that it planned to lay her off, rather than her actual layoff date of June 30, 2009. The County asserts that the complaint, which was filed on July 24, 2009, was untimely.

This Board has long held that "an unfair labor practice generally occurs when the alleged act becomes final, not when the employer gives notice of intent." Washington CounfY Police Officers' Association v. Washington CounfY, Case No. UP-15-08, 23 PECBR 449, 476 (2009); Oregon State Police Officers' Association v. State of Oregon, Oregon State Police, Case No. UP-30-07, 22 PECBR 970 (2009). Our rationale is that the "occurrence" is not the respondent's announcement but rather the effective date of the action, because until the announced action takes effect, the respondent could change its decision or be persuaded not to take the action. AFSClvIE Council 75, Local 3327, and Lah1~ A1.D. v. State of Oregon, Department of Human Resources, i\1.ental Health and Developmental DisabilifY Division, Case No. UP-64-97, 18 PECBR 257, 264 (1999). Accordingly, the complaint was filed well within the 180-day period and the ALJ properly denied the County's Motion to Dismiss.

2. The remaining rulings of the ALJ were reviewed and are correct.

FINDINGS OF FACT

1. The County is a public employer under ORS 243.650(20). The Union is a labor organization under ORS 243.650(13), and the exclusive representative of a bargaining unit of employees who work for the County.

Relevant County Structure

2. The County is governed by a Board of Commissioners, whose current administrator is Dave Kanner. The County is organized into multiple departments, one of which is the Community Development Department (CDD), which is supervised by current director Tom Anderson. The CDD consists of the following four divisions, each with different functions: Building and Permits, Larid Use Planning, Environmental Health, and Code Enforcement. CDD also includes geographic information services and web applications, which Anderson supervises as well.

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3. The Land Use Planning Division, whose director is Nick Lelack, is divided into two sections, Current Planning and Long-Range Planning. Principal planner Kevin Harrison supervises Current Planning and principal planner Peter Gutowsky supervises Long-Range Planning. Other positions in the Land Use Planning Division include senior planner, associate planner, and assistant planner.

4. The duties of a senior planner in the Land Use Planning Division include carrying out highly-sophisticated and detailed technical research and analysis to assist in the urban and community development of the County's comprehensive plan, and conducting highly-involved qualitative and quantitative analyses.

5. Director Dan Haldeman supervises the Environmental Health Division of the CDD, where Barbara Rich was employed as a senior planner at the time of her layoff. This division includes the licensed facilities program, the on-site program, and the water program. At the time relevant to this matter, the positions in the division included senior planner, sanitarian I, sanitarian II, sanitarian III, and secretary. The sanitarian position is at a lower pay grade than the senior planner.

6. The senior planner position in the Environmental Health Division is responsible for developing on-site wastewater performance standards, performing cost/benefit analysis on possible wastewater solutions, developing technical approaches to fund incentives, and helping homeowners retrofit to performance standards. The job requires knowledge of wastewater treatment methods, nitrogen cycles, water quality principals, decentralized wastewater management, and computer modeling.

Contract Language

7. The Union and County are parties to a collective bargaining agreement (Agreement) in effect from July 1, 2006 through June 30, 2011. The parties' Agreement includes a four-step grievance process, the last step of which is a hearing before the County Board. The grievance process provides that "[t]he decision of the board shall be final and binding." The grievance process provides for advisory arbitration prior to a hearing before the County Board but does not provide for binding arbitration.

states: 8. Article 3 of the parties' Agreement, entitled "MANAGEMENT RIGHTS,"

"In order to operate its business, the County, in its sole discretion, retains and shall have the follovving exclusive rights: to determine the number, location and type of facilities; to determine the type and/or quality of services rendered; to determine the methods, techniques and equipment utilized; to hire, supervise, evaluate, discipline, discharge, promote, demote, lay off, transfer and recall the work force; to assign work and

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change, combine, create or abolish job classifications and job content; to establish and make known reasonable work rules and safety rules for all employees, to contract; and to determine the number of employees, including the number of employees assigned to any particular operation or shift.

"Any of the rights, powers, authority and functions the County had prior to the negotiation of this Agreement are retained by the County and the expressed provisions of this Agreement constitute the only limitations on the County's right to manage its business. The County not exercising rights, powers, authority and functions reserved to it, or its exercising them in a particular way, shall not be deemed a waiver of said rights, powers, authority and functions or of its right to exercise them in some other way not in conflict with a specific provision of this Agreement.

"All other traditional rights of management are also expressly reserved to the County and the express provisions of this Agreement constitute the only limitations upon the County's right to manage its business."

9. Article 14 of the parties' Agreement, entitled "ASSIGNMENT OF PERSONNEL," states:

"Section 1 "The decision to hire, transfer, assign, promote and layoff employees shall be based on skill, ability, qualifications, recency of experience, training, length of service and work record. In recognition of length of service, the senior employee shall have preference if all the foregoing factors are equal in the sole judgment of the County. The County shall make every effort to transfer laid off employees into any vacant position for which they are qualified. Employees shall be notified of layoff at least thirty days in advance of lay off.

"Section 2 - Recall "Employees shall be eligible for recall for a period of eighteen ( 18) months. Employees shall be notified of recall in writing, and shall have ten ( 10) calendar days in which to respond. The County will make every effort to place laid off employees in any other position for which they are qualified."

10. The current Article 14 includes essentially the same language that was proposed by the County and included in the parties' initial collective bargaining agreement, which was in effect from July l, 1995 through June 30, 1998. The only change in the language since it was originally adopted was the addition of the sentence regarding the reassignment of personnel under the recall provisions in Section 2.

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states: 11. Article 28 of the parties' Agreement, entitled "SCOPE OF AGREEMENT",

"Section 1 "The Agreement expressed herein in writing constitutes the entire Agreement between the parties. This agreement shall supercede all previous oral and written Agreements between the County and the employees. It is agreed that the relations between the parties shall be governed by the terms of this Agreement only, no prior agreements, understandings, past practices, existing conditions, prior benefits, oral or written, shall be controlling or in any way affect the relations between the Parties, or the wages, hours and worldng conditions unless and until such Agreement, understandings, past practices, existing conditions an [sic] prior agreements shall be reduced to writing and duly executed by both parties.

"Section 2 "In the event the County intends to make a unilateral change in a mandatory subject of bargaining as determined by the Employment Relations Board, the County agrees to notify the Union and subsequently fulfill its obligation under PECBA prior to maldng said change."

Bargaining History

12. When the parties negotiated their first collective bargaining agreement in 1995, the Union proposed that employees be laid off on the basis of seniority; the proposal would have given employees rights to displace or bump employees in other divisions. The County did not agree to this proposal, however. In 2003 contract negotiations, the Union again proposed that employees be laid off on the basis of seniority and the County again rejected this proposal. The Union did not raise the subject of employee layoffs during bargaining for the 2006-2011 Agreement.

In negotiations, the parties never discussed how the criteria in Article 14 would be applied.

The Parties' History Regarding Layoffs

13. The County applied a layoff policy in 2003 when it reorganized and then instituted a layoff in the Adult Treatment Services Program in the Mental Health Division of the Health Services Department. The Adult Treatment Services Program was divided into various teams, including the Community Support Services Team, the

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Community Assessment Services Team, the Community Treatment Services Team, and the Child and Family Program, all of which provided different services. The department uses a generic job classification entitled mental health specialist 1 and 2 department-wide, but the positions within each division or team have different sldll sets. 1

14. The County developed matrices using the criteria set out in Article 14 of the Agreement, and applied them to job classifications within each program or team that was identified for layoff. The criteria rated each employee's sldll, ability, qualifications, recency of experience, training, length of service, and record, and the results were compared to employees in their same classifications within their respective programs or teams, but not department-wide. If application of the matrices resulted in equal scores, then seniority would prevail.

15. The County gave the Union copies of the matrices it used to determine how, and which, employees were to be laid off. After applying the matrices to various positions within the Mental Health Division, the County rated employees, applied numeric scores and implemented layoffs based on the outcome of the scoring. Although at least seven employees filed grievances, which were ultimately denied, the complaints chiefly centered on individual performance scores or supervisors who displaced, or bumped, represented positions. The Union did not file an unfair labor practice complaint against the County concerning its application of the matrices solely by team, program, or division.

17. The County's process for determining who was to be laid off in the Adult Treatment Program was memorialized in a 2003 memorandum written by program manager Lori Hill. The memorandum states that laid-off positions on one team were not allowed to bump positions in the same classifications on another team, nor were they allowed to bump a position with a lower pay grade ·within a team. There was no evidence the Union saw, or was even aware of, Hill's memorandum. The Union knew about the process the County used to lay off employees in the Adult Treatment Program, however, because the County gave it copies of the matrices and the names of the employees being rated. Paragraph 7 of Ms. Hill's memorandum states in relevant part:

"Determinations will be made utilizing the 'Staff Qualification Outlines' and the 'Position Qualification Outlines' for each team. Priority ·will be given to seniority in the event that 2 staff are felt to be equally qualified in the judgment of the program manager. If a staff person is cut from a

IAt various times, the written and oral evidence refers to teams, programs, or sections, all of which are subsets of divisions, which in turn are subsets of departments within the County structure.

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team, there is no bumping across to another team. There will also be no bumping across position categories within a team (i.e. an MHS II which is a Master's level staff will not be placed in an MHS I position which is a bachelor's [sic] level position.")

18. In 2004, the Mental Health Department's Park Place Adult Treatment Facility was closed due to funding issues and all of the employees working there were laid off. The County did not apply the matrices to any of these employees because their positions were being eliminated, along with the program and the facility itself. The Union did not grieve or otherwise argue that the County should have applied the matrices to these employees on a department-wide basis.

19. In 2005, an Adult Treatment Program mental health specialist 1 was laid off because the contract funding from the Department of Human Services ended and the position was being eliminated. The employee, who was hired specifically to perform drug and mental health screenings for State clients, held the only job classification in the program and the County determined that applying the matrix to the sole position in the program was not practical. The Union did not grieve or otherwise argue that the County should have applied the matrix to all other mental health specialist 1 positions within this classification on a department-wide basis.

20. In June of 2008, the County laid off a plumbing inspector in the CDD's Building Codes Division due to reduced funding from inspection fees. Although the inspectors in the CDD all have the same job classification, the unique skill sets of the electrical inspector, plumbing inspector, plans examiner, commercial plans examiner, and building inspectors were deemed to be sufficiently specialized that rating them department-wide was impractical. The Union grieved the layoff based on an argument that there was a business need for more than one plumbing inspector in the division, but never challenged the County's decision not to rate all CDD inspectors in the same job classification.

Factual Basis of the Claim

21. Barbara Rich was originally employed by the County in April 1996 as an assistant planner in the Land Use Planning Division of the CDD. An assistant planner is an entry-level position with a broad range of planning activities, including reviewing land use and zoning applications and permit requests.

22. Rich's academic background includes a Bachelor of Science Degree in Geomechanical Engineering in 1988 from the University of Rochester, a grant for a fifth year of study in the area of public policy planning from the National Science Foundation, and a Master of Arts Degree in Energy and Environmental Studies from Boston University.

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23. Based on favorable reviews from her supervisors, Rich was promoted in May 1998, to the position of associate planner and continued in that position until March 2000. An associate planner supports senior planners in long range or larger projects but serves as senior professional over planning projects of smaller scope.

24. In March 2000, Rich left the County to work for the State Department of Environmental Quality (DEQ) as the project manager for the LaPine National Demonstration Project. The $5.5 million project was funded by the Environmental Protection Agency to test denitrifying onsite systems to determine whether it was possible to reduce nitrogen loading in the groundwater. While in this position, Rich worked out of County offices and acted as a liaison ;vith County personnel, including principal planner Gutowsky from Long-Range Planning.

25. At the conclusion of the laPine Demonstration Project, Rich and Gutowsky submitted a grant request for federal funding for a project entitled "Protection of Groundwater Resources in the Upper Deschutes Basin." Rich was instrumental in securing this funding for the County, and had extensive experience in the area based on her work with the LaPine Demonstration Project, so she was the obvious person to assume this grant-funded position vvith the County. The project included the position of project coordinator.

26. The County did not have a project coordinator job classification and it was not the County's practice to create a new classification to fit one individual job. The Planning Director at the time, Catherine Morrow, was responsible for developing the project coordinator's job and designed it around Rich's experience and salary expectations. Morrow recommended that the project coordinator job be posted as a senior planner position because it was the closest match to the salary Rich had received at DEQ. County Administrator Kanner approved this recommendation.

27. On July 6, 2005, the County posted a job announcement for a temporary, full-time senior planner in the CDD's Environmental Health Division. The posting identified the position as a two-year, grant-funded position, which was:

"[P]rimarily responsible for project management of a federally funded grant, administered by the Environmental Protection Agency (EPA). The project is for a four-phase project that protects water resources by advancing decentralized wastewater treatment techniques in rural residential settings. Using groundwater and nitrate fate transport and optimization models developed by USGS [United States Geological Survey] and innovative denitrifying on-site technology, the project aims to implement performance standards, pollution credits, incentive programs and administrative procedures to protect and improve water quality."

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28. The County hired Rich for the position and on September 6, 2005, she began working with the County in the CDD's Environmental Health Division in the union-represented position of senior planner. When he hired Rich, CDD Director Anderson told her that her position was temporary but that he would attempt to find a vacant regular position that she could move into at the end of the two-year project.

29. By 2007, the County still had not completed the project Rich was hired to manage. Although the County no longer had federal funding for Rich's position, the County extended her employment for two years using funds generated from the sale of land.

30. By the fall of 2008, Anderson had determined that Rich's position should be eliminated because there was no longer any funding for the position and the project she was hired to manage was essentially completed. CDD Director Anderson recommended to County Administrator Kanner that Rich's position be eliminated.

31. Kanner approved Anderson's recommendation and decided that Rich would be laid off. In maldng this decision, neither Anderson nor Kanner rated Rich's job performance in comparison to other CDD planners because she was the only senior planner in the Environmental Health Division and the funding loss meant her position was being eliminated.

32. On January 15, 2009,Anderson notified Rich in writing that she would be laid off from her position effective June 30, 2009.

33. On February 17, 2009, the Union filed a grievance asserting that the County's decision to lay off Rich violated Article 14 of the parties' Agreement. On March 4, 2009, Anderson denied the grievance. In his denial, Anderson stated that Rich's layoff was the result of reduced CDD revenues due to the reduction in development permit fees. Anderson explained the process used to lay off Rich as follows:

"Article 3 (Management Rights) of the Agreement states in part that' ... the County, in its sole discretion, retains and shall have the following exclusive rights: ... to hire, supervise, evaluate, discipline, discharge, promote, demote, lay off, transfer and recall the work force; ... and to determine the number of employees, including the number of employees assigned to any particular operation or shift.' In practice, this means, among other things, that management determines which county operations must be reduced in times of financial difficulty, and which classifications within those operations must be reduced or eliminated. In your case specifically, it was

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determined that no funding was available to pay for your position within Environmental Health, and that the important functions you perform in support of groundwater protection must unfortunately be eliminated or absorbed by other division staff.

"If the business needs of the county dictate that a particular operation of the county must be reduced to match available funding (i.e. Building Safety) and that positions must therefore be eliminated, and there are multiple employees within the classification identified for reduction, then Article 14 is used to determine the order of employees to be laid off. If there is only one employee in a classification to be eliminated within an operation, then the Article 14 process is not required. Further, an employee within an operation who may score high with respect to the factors used in Article 14 cannot displace (e.g. "bump") an employee within the same classification in another operation under the terms of the Agreement." (Emphasis in original.)

34. Rich appealed her grievance to County Administrator Kanner at step three of the grievance procedure. By letter dated April 1, 2009, Kanner denied the grievance. In his letter, Kanner explained his decision as follows:

"The decision to lay you off was neither arbitrary nor targeted. It was strictly a function of lack of funding for a specific position in the Environmental Health Division. This position has been housed in Environmental Health since its inception. * * * Developing layoff lists >vithin individual divisions or organizational units is consistent >vith the County's past practice and has been used to develop other layoff lists in CDD and in other County departments. However, since there is only one senior planner in Environmental Health and since the decision to eliminate that position due to lack of funding is a business decision that is not grievable, there is no need for a layoff list.

"There is no question that you are a highly skilled and qualified employee, however your suggestion that you must be considered with all other senior planners employed by the County is not supported by contract language or the County's past and current practice. What's more, it assumes that all senior planners are interchangeable even though significantly different minimum qualifications are established for different senior planner positions in the recrnitment process and the business needs of a division >vithin CDD are not served by, for example, placing someone in the transpo1tation planner position who has no experience with transportation planning or, in your case, placing someone with no experience in groundwater science in the Environmental Health senior planner position."

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35. On May 13, 2009, at step four of the grievance, the County Board voted to sustain the decision of County Administrator Kanner to deny the grievance. At that meeting, Kanner explained his decision, stating:

"[W]hether limited duration or regular, it is irrelevant to the grievance. It is not addressed in the contract. A business decision was made that a senior planner is no longer needed in environmental health and there is no funding for that position.

"Normally if a business decision is made that a particular position is no longer required or funding is not available, they would go through the article 14 process and look at the organizational unit and everyone who fits that position. Based on that analysis, someone would likely be laid off. There is only one senior planner in the environmental health division. If this analysis is required, current and past practice should be to compare only those within the division. It was not felt that this was necessary."

36. At the time of Rich's layoff, there were five senior planners, four associate planners, and two assistant planners worldng for the County in other divisions of the CDD.

3 7. Rich remained unemployed at the time of hearing.

CONCLUSIONS OF LAW


2. The County did not violate ORS 243.672(l)(g) when it laid off senior planner Barbara Rich.

DISCUSSION

ORS 243.672(1)(g) makes it an unfair labor practice for a public employer to "[v]iolate the provisions of any written contract with respect to employment relations." The Union asserts that the County breached Article 14 of the parties' collective bargaining agreement in violation of subsection (l)(g) when it laid off senior planner Rich in 2009. Specifically, the Union alleges that the County erred because it did not compare Rich's sldll, ability, qualifications, recency of experience, training, length of service, and record to those of all other planners in the CDD. Had the County done so, the Union implies, Rich would likely have proven to be more qualified than at least some

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of the other County planners and thus would not have been laid off. According to the County, however, the Article 14 criteria could only be used to compare Rich to other employees in similar positions in the division where Rich worked. Because Rich was the only Senior Planner in the division-Environmental Health Division-the County contends there were no other employees to whom it could compare Rich, and that it appropriately selected Rich for layoff. The County argues that the process it used to lay off Rich is consistent with its practice since 2003; the County applied Article 14 criteria to evaluate employees by division or program, and never made a department or county-wide assessment of employees to determine who would be selected for layoff.

We begin our consideration of the Union's claims and the County's defenses by analyzing the language in Article 14 of the parties' collective bargaining agreement. We generally .interpret collective bargaining agreements in the same manner as other contracts. Portland Fire Fighters' Assn. v. City of Portland, 181 Or App 85, 91, 45 P3d 162 (2001), rev den, 334 Or 491 (2002) (citing OSEA v. Rainier School Dist. No. 13, 311Or188, 194, 808 P2d 83 (1991)). Our goal is to determine the parties' intent; to do so, we apply a three part analysis. Lincoln County Education Association v. Lincoln County Sclwol District, Case No. UP-14-04, 21 PECBR 20, 29 (2005). We first examine the text of the disputed contract language in the context of the document as a whole. If the provision is clear, our analysis ends and we enforce the unambiguous terms of the agreement. If the provision is ambiguous, we proceed to the second step which is to examine the extrinsic evidence of the contracting parties' intent. "[W]e will examine the parties' prior actions or practice as an aid to contract interpretation on[y if the contract language is ambiguous." OregonAFSCi\!IE Council 75, Local 2831 v. Lane County, Case No. UC-04-09, 23 PECBR 416, 425 (2009) (emphasis in original). Finally, if the provision remains ambiguous after applying the second step, we apply appropriate maxims of contract construction. Yogman v. PmTott, 325 Or 358, 364, 937 P2d 1019 (1997).

Accordingly, we first look to the relevant language in the parties' collective bargaining agreement to determine if it is ambiguous. A contract is ambiguous if it can reasonably be given more than one plausible interpretation. P01tland Fire Fighters' Assn. v. City of Portland, 181 Or App at 91 (citing 1'1iller v. Miller, 276 Or 639, 647, 555 P2d 1246 (1976)).

Here, the management rights clause in Article 3 of the parties' agreement gives the County unfettered discretion to lay off employees. The determination of which employees will be laid off, however, is governed by Article 14, which requires that the County choose employees for layoff on the basis of "skill, ability, qualifications, recency of experience, training, length of service and work record." If, in the County's "sole judgment," these factors are equal, the senior employee will be retained.

The Union argues that the County should apply the Article 14 layoff criteria to evaluate all employees who have the same job classification as the position being

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eliminated. The County argues that the Article 14 criteria should more reasonably be applied only to employees who have the same job classification in the same program or division as the position the County wants to eliminate. The contract is silent on this issue, so we turn to the second step of our analysis and consider extrinsic evidence of the parties' intent.

The most reliable aid in interpreting ambiguous contract language is the parties' past practice. Association of Oregon Co1rections Emplqyees v. State of Oregon, Department of Corrections, Case No. UP-33-03, 23 PECBR 222, 239 (2009), appeal pending. We may also look at the parties' bargaining history as a means of determining intent. Id. at 240.

A past practice is established by a course of conduct that is clear and consistent, occurs over a long period of time, and is acceptable to both parties. Eugene Police Emplqyees' Association v. Ciry of Eugene, Case No. UP-038/41-08, 23 PECBR 972, 998 (2010); OregonAFSCME Council 75, Local 2831 v. Lane Counry Human Resources Division, Case No. UP-22-04, 20 PECBR 987, 993 (2005). Acceptability means that both parties are aware of the conduct at issue and accept it as the appropriate method for dealing ·with a situation. Mutuality means that the practice arises from a joint understanding of the parties. Ciry of Eugene, 23 PECBR at 998.

Here, the County's practice has been consistent over the past seven years-it applied Article 14 criteria to determine the order of layoff within the same team, program, or division of the eliminated position. In 2003, when the County imposed layoffs in the Mental Health Department due to a funding shortage, it used the Article 14 criteria to develop a matrbc. The layoff involved employees who had the same job classifications-mental health specialist I and II-but worked on different teams. The County applied the matrix to rate employees within teams; it gave priority to seniority only if it determined that more than one staff member in the same classification on the same team was equally qualified. The County did not permit mental health specialists from one team to bump similarly-situated employees on other teams, and did not allow employees to bump lower-classified positions on their teams. Although the Union filed a number of grievances, none challenged the County's practice oflimitingthe application of the matrices to classifications within a team or its practice of preventing a higher classification from bumping a lower classification within a division.

The County adopted a similar approach in 2004 when it eliminated the Park Place Adult Treatment Facility; the County did not apply the matrices to compare Park Place employees to other employees in other programs of the Mental Health Division. Instead, the County laid off the Park Place employees because the entire program was eliminated and the facility closed. In 2005, when funding ended for a mental health specialist 1 position that performed dmg and mental health screenings in the Mental Health Department, the County did not apply the Article 14 criteria because the

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position was the only one of its kind in the Department. The Union never grieved the County's failure to apply the matrices to determine the order of layoff in these circumstances.

In June of 2008, the County laid off a plumbing inspector in the CD D's Building Codes Division. Consistent >vith its practice in prior layoffs, the County made no division-wide rating of the plumbing inspectors because each inspector was responsible for a different program. Instead, the County laid off the plumbing inspector who held the position selected for lay off.

Accordingly, the County's practice in regard to layoffs has been clear, consistent, and long-standing. The County used Article 14 criteria only to evaluate other employees on a particular team, division, or program who filled positions comparable to the one selected for layoff. If the position the County sought to eliminate was the only one of its kind, the County concluded no group existed for comparison purposes and laid off the employee holding the position. The Union indicated its acceptance of this practice by never protesting it or challenging it in a grievance.

Here, Rich occupied a unique position: she was the sole senior planner in the County's Environmental Health Division. Rich had job duties, responsibilities, and expertise that were different from the other senior planners, all of whom worked in the same department (CDD) but in a different division (Land Use Planning). When the County decided to eliminate her position because no additional funding was available, the County acted consistently >vi th its past practice when it laid off Rich. The fact that Rich, who by all accounts is a highly-regarded and valued planner, may have been able to do some, or eventually all, of the work performed by a senior planner in the Land Use Planning Division, or even a sanitarian >vith a lower pay grade >vithin her own division, misses the point. The County's layoff practice has been to prohibit cross-divisional bumping in the same job classifications and to prevent a higher pay grade within a job classification from bumping a lower pay grade in the same team, program, or division.

The manner in which the parties conduct themselves under specific contract language provides persuasive evidence of their intent. The conduct here demonstrates that the County and Union intended to apply the layoff criteria in Article 14 to groups no bigger than a division or program. The parties' past practice gives no indication that the parties ever intended to apply these criteria on a department or County->vide basis.

Furthermore, the parties' bargaining history does not support the Union's position that Article 14 requires the County to adopt a department-wide evaluation process when determining layoffs. Article 14 of the Agreement has remained largely intact through successor contracts since it was first negotiated in 1995. During negotiations for the parties' inaugural collective bargaining agreement in 1995, the Union tried to convince

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the County to accept a layoff policy that was based on seniority, which necessarily implied bumping rights, but the County never agreed to the proposal. The record is devoid of evidence that the parties subsequently negotiated the issue of how, or to whom, the evaluative criteria under Article 14 would be applied. During the negotiations for the 2006-2011 contract, the issue was not even raised by the Union. Thus, the parties' bargaining history demonstrates that the Union never succeeded in obtaining contract language that would require application of the Article 14 criteria on a department or County-wide basis.

The Union did not establish that the County violated ORS 243.672(l)(g) by failing to comply with the requirements of Article 14 of the parties' collective bargaining agreement when it laid off Barbara Rich. Accordingly, we dismiss the complaint.

ORDER


SIGNED AND DATED this .2:l__ dayo~ N.J:ay, 2011. c/

·~~ 1~.;~ /~ .// ~

Paul B. Gamson, Chair 1



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OF THE

STATE OF OREGON

Case Nos. UP-38/41-08

(UNFAlR LABOR PRACTICE)

EUGENE POLICE EMPLOYEES' ASSOCIATION,

Complainant,

v.

CITY OF EUGENE,

Respondent.

) ) ) ) ) ) ) ) )

~~~~~~~~~~~~-)

FINDINGS AND ORDER ON RESPONDENT'S PETITION FOR REPRESENTATION COSTS

The Eugene Police Employees' Association (Association) filed two separate unfair labor practice complaints against the City of Eugene (City). The Board consolidated the complaints for hearing and decision because they involved the same parties, had many .facts in common, and raised related legal issues. On October 27, 2010/ this Board issued an Order dismissing the complaints. 23 PECBR 972. On November 17, the City filed two separate petitions for representation costs, one for each complaint. On December 1, the Association objected to both petitions.

Pursuant to ORS 243.676(3)(b) and OAR 115-035-0055, this Board finds:

1. The City filed timely petitions for representation costs and the Association filed timely objections to the petitions.

2. The City is the prevailing party.

1All dates are 2010 unless stated otherwise.

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Board rules limit representation costs to a maximum of $3,500 in most circumstances. OAR 115-035-0055 ( 1 )(a). The City filed two petitions for representation costs, each seeking the maximum award. The Association objects on grounds that the Board issued only one Order, and it argues that the City is therefore entitled to only one award. We agree. In consolidated cases such as this one, "we make only a single award that is subject to the rule's limitations on amount." Portland Association of Teachers v. Portland Sclwol District No. 1/, Case Nos. UP-35/36-94 (unreported Rep. Cost Order, May 1995); Cascade Bargaining Council v. Jefferson Counry School Distlict No. 509/, Case Nos. UP-29/43-85 (unreported Rep. Cost Order, April 1987) ("because only one order was issued, the costs to be awarded are limited to $3 ,500"). Accordingly, we will combine the City's petitions and treat them as a single petition for purposes of awarding representation costs.

3. According to the affidavit of counsel, the City incurred representation costs of $20,650.40 in Case No. UP-38-08. This represents 112.9 hours of attorney and paralegal time billed at various rates ranging from $96 to $205 per hour. According to the affidavit of counsel, the City incurred representation costs of $18,748.70 in Case No. UP-41-08. This represents 106 hours of attorney and paralegal time billed at various rates ranging from $96 to $205 per hour. The total of both petitions is $39,399.10 based on 218.9 hours. The average hourly rate charged here is $180.

The Association objects to both the number of hours spent and the hourly rate. This case required two days of hearing. An average case requires approximately 45-50 hours of representation for each day of hearing. Oregon AFSCME Council 75 v. State of Oregon, DepartmentofC01nctions, Case No. UP-5-06, 22 PECBR479 (2008) (Rep. Cost Order); Blue 1\1ou11tain Faculry Association/Oregon Education/NBA and Lamiman v. Blue J\1ountain Communiry College, Case No. UP-22-05, 21 PECBR 853 (2007) (Rep. Cost Order). In fashioning our award, we will consider the time spent by a paralegal. See Association of Oregon Co1nctions Empl!!Jees v. State of Oregon, Department of Corrections and AFSCME, Case No. UP-16-05, 22 PECBR51 (2007) (Rep. Cost Order) (paralegal time can be recovered as a representation cost if it is not duplicative). The City spent more than double the average number of hours for a case requiring two days of hearing, a factor i,ve will consider in determining the appropriate award.

The hourly rate is slightly higher than average, another factor we will consider in fashioning the award. Dallas Police Empl!!JeesAssociation v. Ciry of Dallas, Case No. UP-33-08, 23 PECBR 510 (2010) (Rep. Cost Order) ($165-170 per hour is an average rate).

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4. The complaint in Case No. UP-38-08 arose from the City's decision to refer a ballot measure to the voters. The measure would authorize a police auditor to participate in investigatory interviews of bargaining unit members. The Association alleged that the referral violated ORS 243.672(l)(e), (f) and (g). We dismissed the claims as premature and without merit.

The complaint in Case No. UP-41-08 arose from the City's implementation of the ballot measure after the voters passed it. The Association alleged that changing the police auditor's role to include participation in internal affairs interviews with bargaining unit members constituted bad faith bargaining, a violation of ORS 243.672(l)(e), and breached the parties' agreements, a violation of ORS 243.672(l)(g). We held that the change did not violate the parties' agreements or unlawfully change the status quo.

5. An average award is approximately one-third of a prevailing party's reasonable representation costs, up to the $3,500 cap. Benton County Deputy Sheriffs Association v. Benton County, Case No. UP-24-06, 22 PECBR 46, 47 (2007) (Rep. Cost Order); OAR 115-035-0055(l)(a). We adjust that percentage up or down based on various policy considerations described in our rules and cases. We generally make an average award in subsection (l)(e) unilateral change cases. Northwest Education Association/OEA!NEA v. Northwest Regional Education Se1vice District, Case No. UP-23-06, 22 PECBR 482 (2008) (Rep. Cost Order). We also make average awards in cases involving breach of contract. Lincoln County Education Association v. Lincoln County School District, Case No. UP-14-04, 21PECBR189 (2005) (Rep. Cost Order). We typically reduce the award in cases that present novel legal issues so that parties are not deterred from litigating novel issues. Depmtment of Co1nctions, 22 PECBR 479 (2008) (Rep. Cost Order). Here, as the City points out, the issues concerning ballot measures were novel. 2

We balance these various policy considerations and conclude that a slightly smaller-than-average award is appropriate in these circumstances. Even a smaller-thanaverage award here would exceed the $3 ,500 cap, so we will award the maximum amount permitted by Board rules.

2Novel legal issues can be a two-edged sword in representation cost decisions. They can lead to slightly higher awards because we recognize that it may take longer to research and brief novel issues. It can also lead to smaller awards because, as explained above, we do not want to deter parties from raising novel issues.

-3-

Having considered the purposes and policies of the Public Employee Collective Bargaining Act (PECBA), our awards in prior cases, and the reasonable cost of services rendered, this Board awards the City representation costs in the amount of $3,500.

ORDER

The Association will remit $3 ,500 to the City vvithin 30 days of the date of this Order.

Vicld7 Cowan, Board Member



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OF THE

STATE OF OREGON

Case No. DC-015-11

(PETITION FOR DECERTIFICATION OF REPRESENTATIVE) ·

GEORGE E. COLLINS on behalf of ) EMPLOYEES OF ROGUE COMMUNITY ) COLLEGE, )

) Petitioner, )

) v. )

) TEAMSTERS LOCAL 962, )

) Respondent. )

~~~~~~~~~~~~~~->

ORDER DISMISSING PETITION

Teamsters Local 962 (Union) represents a bargaining unit of employees at Rogue Community College (College). On May 5, 2011, 1 George E. Collins (Petitioner) filed a petition on behalf of certain employees of the College. The petition seeks to decertify the Union as exclusive bargaining representative. Petitioner represents that there are two members in the bargaining unit and that a contract between the College and the Union is in force from July 1, 2008 through June 30, 2011.

A copy of the contract was provided with the petition. The contract describes the bargaining unit as:

"All employees of Rogue Community College who are Commercial Truck Driving Instructors, excluding:

"1. Supervisory and confidential employees. "2. RCC OSEA members. "3. RCC OEA members. "4. Temporary instructors employed 29 days or less in any fiscal year. "5. Instructors for out-of-district classes with four ( 4) or fewer students

enrolled."

1All dates are 2011 unless otherwise specified.

On May 6, the Elections Coordinator wrote to Petitioner informing him that the petition was not timely filed and that the showing of interest accompanying the petition was not sufficient. The Elections Coordinator requested that Petitioner withdraw the petition by May 16. Petitioner did not respond.

ORS 243.692(3) establishes the "window" or "open" period for filing a petition when a contract exists as "not more than 90 calendar days and not less than 60 calendar days before the end of the contract period." See also OAR 115-025-0015 ( 4). The contract expires on June 30. The appropriate period to file this petition was April 2 to May l. Because May l fell on a weekend, the open period expired on the following day, Monday, May 2. This petition was received on May 5, "less than 60 calendar days before the end of the contract period." The petition is therefore untimely.

In addition, the showing of interest is inadequate. See ORS 243.682(l)(b)(D) (requiring a 30 percent showing of interest in order to obtain an election on a decertification petition).The showing of interest provided with the petition is the "example" clipped from the in_structions this Board provides to potential petitioners. Neither the name of the College nor the name of the Union this petition seeks to decertify are included in the document. Other than the fact that the person signing the document no longer desires to be represented, it is not clear what labor organization and what employer the document refers to.

We dismiss the petition as untimely and not supported by an adequate showing of interest.

ORDER

The petition for a decertification election is dismissed.

DATED this __ d'y of)ofil, 2011. ~

VJ!&~ Paul B. Gamson, Chair



This Order maybe appealed pursuant to ORS 183.482.

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OF THE

STATE OF OREGON

Case No. DR-003-11

(DECLARATORY RULING)

IN THE MATTER OF THE PETITION FOR A DECLARATORY RULING JOINTLY FILED BY CITY OF WEST LINN AND CLACKAMAS COUNTY PEACE OFFICERS ASSOCIATION.

) ) ) ) )

~~~~~~~~~~~~~~~~)

DECLARATORY RULING

On May 23, 2011, this Board heard oral argument on the parties' joint petition for a declaratory ruling.

Barbara Diamond, Attorney at Law, Diamond Law, Portland, Oregon, represented the Clackamas County Peace Officers Association.

Todd Lyon, Attorney at Law, Williams Zografos & Peck, Lake Oswego, Oregon, represented the City of West Linn.

On March 14, 2011, the City of West Linn (City) and the Clackamas County Peace Officers Association (Union) jointly filed this petition for a declaratory ruling. The parties ask that we determine whether the Jane Doe1 grievance is arbitrable under section 12(D) of the parties' 2009-2012 collective bargaining agreement.

STATEtvlENT OF FACTS BEING ADIUDICATED2

1. The City, a public employer, and the Union, a labor organization, are parties to a collective bargaining agreement effective July 1, 2009 through June 30, 2012. The agreement includes the following provisions:

'Jane Doe is a pseudonym.

2The Statement of Facts is based on the parties' joint statement of facts and included exhibits.

1

"Article 9, Discipline and Discharge

"A. Discipline shall include: oral reprimands, written reprimands, demotion, suspension ·without pay and dismissal. Disciplinary action may be imposed upon a non-probationary employee only for just cause.

"******

"Article 10, Grievance and Arbitration Procedure

"A. Grievance. A grievance, for the purpose of this Agreement, is defined as a dispute regarding the meaning of or interpretation of a particular clause of this Agreement, or regarding an alleged violation of this Agreement. [The remainder of Article 10 sets forth a grievance procedure that culminates in final and binding arbitration.]

"* * * * *

"Article 12, Non Discrimination

"*****

"B. Non-Discrimination. The provisions of this Agreement shall be applied equally to all members in the bargaining unit without discrimination as to age, martial status, sex, disability, race, color, creed, religion, national origin, union affiliation, political affiliation or other protected status or protected activity in accordance with applicable law.

"* * * * *

"D. Alleged Violations. In the event an employee elects to file a statutory claim of employment discrimination, including harassment prohibited by the employment discrimination laws, he/she is precluded from pursuing a claim of discrimination under the grievance and arbitration procedures set forth in Article 10. If the statutory claim is filed after a grievance is filed, the grievance shall proceed no further and shall not be subject to arbitration."

2. Bargaining unit member Doe was a regular non-sworn employee who worked for the West Linn Police Department. On or about December l, 2009, Doe reported to the City Human Resources Department that she had been subject to

2

unwanted sexual advances and had been denied training as a result of refusing these advances. The City conducted an extensive and immediate investigation concerning Doe's report. After the investigation, the City dismissed Doe's sexual harassment complaint.

3. After dismissing Doe's complaint, the City conducted an investigation into whether Doe was untruthful in statements she made during the sexual harassment investigation. Untruthfulness in an official investigation is a potential discharge offense in many law enforcement jurisdictioi1s. The City notified Doe that the charge of untruthfulness, if proven, would result in discipline up to and including discharge.

4. After a due process hearing, City Police Department Chief Terry Timeus discharged Doe for untruthfulness by letter dated April 19, 2010.

5. In a letter to the City Manager dated April 30, 2010, Union attorney Barbara Diamond filed a grievance concerning Doe's discharge. The letter stated in pertinent part:

"A Statement of the Grievance and Relevant Facts

"[Doe] was terminated from her position with the City of West Linn on or about April 19, 2010. The ground for termination was alleged untnithfulness in a report of sexual harassment.

"As you know, the City has the burden of proving untruthfulness by clear and convincing evidence. We are not convinced that this level of proof exists. Rather, it appears that the City has failed to conduct a fair and unbiased investigation and is taking statements out of context or otherwise miscontruing the record. As a result, the grievance must allege that the City lacked both procedural and substantive just cause in terminating the employee. In addition, there was a violation of Ms. [Doe's] right to just cause.

"The Provisions of the Agreement Allegedly Violated

"Article 12, Non-discrimination and retaliation for filing a harassment complaint.

"Article 9 A, Just cause "Article 9 E, Investigat01y Interviews

3

"The Remedy Sought

"Reinstatement with full back pay and benefits, plus interest."

6. After the parties exhausted the grievance procedure, on or about October 5, 2010, they selected an arbitrator to hear Doe's grievance. The grievance is scheduled for hearing before the arbitrator on July 12-15, 2011.

7. On or about December 30, 2010, Doe filed a complaint in federal court alleging statutory claims for sexual harassment and discrimination.

8. By letter dated January 18, 2011, counsel for the City notified the Union that the City believed that the arbitrator's jurisdiction over the grievance was abrogated by Doe's filing of her federal court claims.

9. By an e-mail dated January 21, 2011, the Union's attorney responded to the City's letter. The e-mail stated:

"In reviewing the grievance, I see that we did include a claim under Article 12, Non-discrimination. In light of the City's position, the Union respectfully withdraws the Article 12 portion of the grievance and will arbitrate only the just cause portion. In light of this development, please advise as to the City's position.''

10. Because the parties could not agree upon the lawfulness and substantive arbitrability of the grievance, the parties have jointly petitioned for a declaratory ruling from this Board. The parties acknowledge that under Article 35 of the collective bargaining agreement,3 should Section 12(D) be declared "unlawful, invalid or unenforceable" in this proceeding, the ruling shall apply only to Section 12(D) and the remainder of the contract will be in full force and effect.

3 Article 35 of the parties' 2009-2012 contract states:

"Should any Article, section or portion thereof of this Agreement be held unlawful, invalid or unenforceable by any court of competent jurisdiction or by the Employment Relations Board of the State of Oregon, such decision of said court or board shall apply only to the specific Article, section or portion thereof, directly specified in said decision. Upon the issuance of such decision, the parties agree to negotiate immediately a substitute, if any, for the invalid Article, section or portion thereof.''

4

QUESTIONS PRESENTED BY PETITIONERS

1. Is the Doe grievance arbitrable under Article 12(D) of the parties' 2009-2012 collective bargaining agreement?

2. If the grievance is not arbitrable under Article 12(D), is the language of Article 12(D) lawful and enforceable?

3. If the language of Article 12(D) is unlawful and unenforceable, what is the effect, if any, on the pending Doe grievance?

ANSWER REQUESTED BY THE CITY

1. Article 12(D) is lawful and precludes the entire grievance from proceeding to arbitration.

2. If Article 12(D) is not lawful, the parties must renegotiate a lawful Article 12(D) and subject the grievance to the newly negotiated provisions.

3. If the grievance is arbitrable under Article 12(D), the Union may not present and argue facts or allegations of discrimination, including but not limited to, retaliation or harassment at the grievance arbitration.

ANSWER REQUESTED BY THE ASSOCIATION

l. Article 12(D) does not apply to the Doe grievance and the grievance is arbitrable under the terms of the collective bargaining agreement. Questions as to what evidence is admissible in arbitration are for the arbitrator to decide.

2. If the grievance is not arbitrable under Article 12(D), Article 12(D) is unlawful and unenforceable because it penalizes a grievant for filing a discrimination claim.

3. If Article 12(D) is unlawful, the savings clause of the parties' agreement requires them to reopen that portion of the agreement.

CONCLUSION AND REASONING

The parties ask us to determine whether the Doe grievance is arbitrable under the terms of their 2009-2012 collective bargaining agreement. If we conclude it is not, they ask that we decide whether Article 12(D) is lawful and enforceable.

5

Under the Public Employee Collective Bargaining Act (PECBA), arbitration is strongly favored as a method of resolving disputes involving alleged violations of a collective bargaining agreement. Lane Unified Bargaining v. South Lane Sch. Dist., 334 Or 157, 47 P3d 4 (2002). We will order parties to arbitrate a grievance unless we can· say with "positive assurance" that the arbitration clause is not susceptible to an interpretation that covers the dispute in question. Any doubts should be resolved in favor of coverage. Corvallis Selz. Dist. v. Corvallis Education Asm., 35 Or App 531, 534, 581 P2d 972 ( 1978) (quoting United Steelwoi*ers ef America v. Wanior & Gulf Navigation Co., 363 US 547, 582-83 (1960)).

We explain the positive assurance test as follows:

"The emphasis in applying the positive assurance test is whether the arbitration clause is or is not susceptible to an interpretation that covers the dispute. * * * Where a contract contains what the court in AT&T Technologies [v. Co111111unicatio11s Wo1*ers ef Ame1ica, 47 5 US 643 ( 1986)] calls a 'broad' arbitration clause, application of the positive assurance test leads the mind to search for an express provision excluding the particular grievance from arbitration. If such an express exclusion is not found, and barring other 'most forceful evidence of a purpose to exclude the claim,' arbitration will be ordered." Luoto v. Long Creek School Dist. No. 17, Case No. UP-16-86, 9 PECBR 9314, 9329, a.ffd 89 Or App 34, 747 P2d 370 (1987), rev den 305 Or 576, 753 P2d 1382(1988). (Emphasis in original; footnotes omitted.)

In deciding whether a grievance is arbitrable, our involvement is limited. We apply the positive assurance test to determine the extent of the parties' agreement to arbitrate and decide if the parties intended to arbitrate the alleged violation of the contract language at issue. "We do not decide what the parties intended the language to mean." Id. at 933.

If there is any ambiguity in the relevant contract language, we will find the grievance arbitrable. In Portland Fire Fighters' Association, Local 43 11. CifY of Portland, 181 Or App 85, 45 P3d 162 (2002) (en bane), rev den 334 Or 491, 52 P3d 1056 (2002), the grievance procedure at issue required arbitration of "any grievance." The court concluded that under this broad language, a grievance brought on behalf of retired employees was arbitrable:

"[T]he ambiguity as to the arbitration provision's coverage demonstrates an absence of positive assurance that the dispute in question is not arbitrable, and thus, it is arbitrable. Accordingly, the city committed an unfair labor practice in violation of ORS 243.672(l)(g) by refusing to arbitrate the Association's grievance regarding retiree health benefits." 181 Or App at 96. (Emphasis in the original.)

6

We look first to the broad arbitration clause in the parties' collective bargaining agreement. Under the provisions of Article 10, the Union may take an unresolved grievance to arbitration; Article I 0 defines a grievance "as a dispute regarding the meaning of or interpretation of a particular clause of this Agreement, or regarding an alleged violation of this Agreement." These provisions are, under the Luoto standards, clearly susceptible to an interpretation that covers the dispute at issue here: whether the City violated the contractual just cause provisions when it discharged Doe.

We next determine whether any contract provision expressly excludes this grievance from arbitration. The City argues that the language of Article 12(D) provides such an express exclusion; this provision precludes an employee from pursuing a claim of discrimination to arbitration if the employee "elects to file a statutory claim of employment discrimination, including harassment prohibited by the employment discrimination laws * * *." The City notes that Doe filed a statutory claim of employment discrimination after she filed her grievance. The City argues that the plain language of the second sentence in Article 12(D)

"indicates that if the statutory claim is filed after the grievance, the grievance shall proceed no further. The language does not say that the 'statutmy claim' portion of the grievance shall proceed no further. Instead, the language halts the entire grievance so as to avoid the mess that parties are faced with here; namely, to pick out what portion of the grievance deals with the statutory claim and what portion deals with another section of the collective bargaining agreement." (City Brief, p. 8; emphasis in the original.)

The Union asserts that the restrictions in Article 12(D) apply only to a grievance or portion of a grievance alleging a violation of the non-discrimination language in Article 12(B). In support of its interpretation, the Union looks to the first sentence of Article 12(D) which precludes a bargaining unit member who files a statutory claim of employment discrimination "from pursuing a claim of discrimination under the grievance and arbitration procedures set forth in Article 10." According to the Union, this prevents a grievant only from arbitrating a claim of discrimination; it does not prevent a grievant from arbitrating other alleged violations of the contract. Because the grievant dropped the portion of her grievance that alleged violations of the contractual non-discrimination provisions, the Union contends that the amended grievance-which alleges that the City violated Article 9, the contractual just cause provision-is arbitrable.

Both parties have offered plausible interpretations of Article 12(D). Accordingly, we conclude this contract language is ambiguous. See P01tland Firefighters' Assn., 181 Or App at 92 (citing North Pacific Ins. Co. v. Hamilton, 332 Or 20, 25, 22 P2d 1246 (1976)) (a contract is ambiguous if it can reasonably be given more than one plausible

7

interpretation). As discussed above, any ambiguity in the contract language concerning arbitrability shows that it cannot be said with positive assurance that the grievance is 11ot arbitrable and, therefore, demonstrates that the grievance is arbitrable.4

Because we hold that the grievance is arbitrable, it is unnecessary to answer the second question posed by the parties-whether Article 12(D) of the parties collective bargaining agreement is lawful and enforceable.

4We interpret a collective bargaining agreement as we do any other contract. Portland Firefighters' Assn., 181 Or App at 91. Our goal is to determine the parties' intent; to do so we apply a three-part test. Lincoln County Education Association v. Lincoln County School District, Case No. UP-14-04, 21 PECBR 20, 29 (2005). We begin by examining the text and context of the disputed language; if the provision is clear, our analysis ends and we enforce the contract's unambiguous terms. If we conclude the provision is ambiguous, we proceed to the second step and examine any extrinsic evidence of the parties' intent. OregonAFSClvfE Council 75, Local 2831 v. Lm1e County, Case No. UC-04-09, 23 PECBR4 l 6, 425 (2009). If there is no extrinsic evidence or the contract ambiguity persists after we analyze extrinsic evidence, we proceed to the third step and apply appropriate maxims of contract construction. Yogman I'. Parrott, 325 Or 358, 364, 937 P2d 1019 (1997).

Here, the language of Article 12(D) is ambiguous because it is capable of at least two plausible interpretations. The parties have presented us with no extrinsic evidence, such as evidence of past practice or bargaining hist01y, to aid us in resolving the ambiguity. We thus proceed to the third step and apply an appropriate maxim of contract construction: doubts in an arbitration clause should be resolved in favor of coverage. P01tlm1d Firefighters' Assn., 181 Or App at 96; Joseph Education Assn. F. Joseph Sch. Dist. No. 6, 180 Or App 461, 467, 43 P3d 1187 (2002). Whatever analysis we use, we reach the conclusion that the Doe grievance is arbitrable.

The City argues, however, that the Union intends to present its discrimination claim to the arbitrator in the guise of a just cause grievance. The record does not support this assertion. If the City believes the Union is improperly presenting a discrimination claim at the arbitration hearing, it can raise this issue with the arbitrator. The arbitrator can then determine if the parties intended to exclude such a claim from arbitration. The contract does not define "discrimination." Is the term broad enough to cover retaliation for reporting discrimination? Does it refer solely to grievances brought under the non-discrimination provision of the contract, or is it broad enough to include a claim under the just cause provision? Answering these questions requires interpreting the relevant contract language and applying it to the facts of the grievance. As discussed above, it is the arbitrator's role (and not this Board's) to decide what the contract language at issue means. The arbitrator is in the best position to hear facts, consider arguments and determine what the parties in tended by the ambiguous language in Article 12 (D).

8

The City argues, however, that even if we hold that the grievance is arbitrable, we must issue an order preventing the Union from presenting and arguing facts at the arbitration hearing which allege discrimination and harassment. The City argues that "the Union must not be allowed to bootstrap discrimination and retaliation claims under the rubric of just cause." (City Brief, p. 10.)

The City's arguments are appropriately made to an arbitrator rather than this Board. They go to the merits of the grievance and not its arbitrability. To do what the City asks, we would have to consider specific claims made in the Doe grievance, and interpret Article 12(D) to determine if the City is entitled to present evidence and argument in support of some of these claims at the arbitration hearing. As discussed above, it is the arbitrator and not this Board that must decide the meaning of the relevant contract language. Deb 1\1eadows-West, Mid- Vallry Bmgaining Council; State Teachers Association v. State of Oregon, Department of Education, Case No. UP-50-97, 17 PECBR 664, 672 (1998); Teamsters Local 670 JJ. City of Ontario, Case No. UP-40-08, 23 PECBR 210, 216 (2009). Our role here is limited to examining the contractual provisions concerning arbitrability and determining if they are susceptible to an interpretation that covers the Doe grievance. We hold that they are, and that the City must proceed to arbitration on the grievance.

RULING

The Doe grievance is arbitrable.

SIGNED AND DATED this 2 0 day of June, 2011.





9


OF THE

STATE OF OREGON

Case No UP-22-09


OREGON AFSCME COUNCIL 75, ) LOCAL #2746-5, )

) Complainant, )

) ~ )

) CITY OF WARRENTON, )

) Respondent. )

~~~~~~~~~~~~~-)


On August 11, 2010, this Board heard oral argument on Complainant's objections to a Recommended Order issued by Administrative Law Judge (ALJ) Wendy L. Greenwald on March 10, 2010, following a hearing on October 8, 2009, in Salem, Oregon. The record closed on October 23, 2009, with the receipt of the parties' post-hearing briefs.

David Martinez, Council Representative, Oregon AFSCME Council 75, Portland, Oregon, represented Complainant.

Frank Forbes, Labor Relations Consultant, Local Government Personnel Institute, Salem, Oregon, represented Respondent.

On May 1, 2009, OregonAFSCME Council 75, Local #2746-5 (Union) filed this complaint which alleges that the City of Warrenton (City) violated ORS 243. 6 72 ( 1) (g) when it failed to implement the parties' November 5, 200.8 classification and compensation agreement. The City filed a timely answer and asserted that it did not violate ORS 243.672(l)(g) because the agreement was subject to ratification.

The issue in this case is: Did the City violate ORS 243.672(1)(g) when it failed to implement the November 5, 2008 classification and compensation agreement between the City and AFSCME.

RULINGS

1. The nilings of the ALJ have been reviewed and are correct.

FINDINGS OF FACT

1. The Union is the exclusive representative of a bargaining unit of employees who work for the City, a public employer.

2. The City has a commission-city manager form of government. Chapter III, Section 6 of the City Charter states " [ e ]xcept as this charter provides otherwise, all powers of the city shall be vested in the commission. "1 Chapter III, Section 11, entitled "Salaries,'' provides, in relevant part, that "[t]he compensation for the services of each city officer and employe shall be the amount fixed by the commission."

3. The city manager is the "administrative head of the government of the city." The city manager's povvers and duties include: 1) attending Commission meetings and advising the Commission on the affairs of the city and its departments; 2) enforcing all city ordinances, franchises, leases, contracts, permits, and privileges; 3) appointing, removing, and supervising city officers and employees and supervising city departments to the extent not otherwise provided in the charter; 4) acting as the department's purchasing agent; 5) preparing and submitting annual budget estimates and other budget reports; and 6) supervising city property and public utilities.

4. The Union and City were parties to a collective bargaining agreement effective July 1, 2006 through June 30, 2009.

part: 5. Article 12. l of that agreement, entitled "COMPENSATION,'' provided, in

"12. l General

"Employees shall be compensated in accordance with the following and the wage schedule attached to this agreement and marked Exhibits "A" and "B" which is hereby made a part of this agreement. Payroll errors shall be corrected within thirty (30) days of notice to the City.2

1The parties used the terms commission and council interchangeably.

2Exhibit "A" is entitled Job Classification; Exhibit "B" is entitled Salary Schedule.

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"A. Effective July 1, 2006 all employees shall receive a cost of living increase of three and one half percent (3.5%) and effective July 1, 2007 all employee [sic] shall receive a cost of living increase of three and one half percent (3.5%). For the fiscal year beginning July 1, 2008 the parties shall renegotiate wages prior to the beginning of the fiscal year based on the results of the joint class and compensation review.

"*****

"C. Classification/ Compensation Review: The City and the Union shall collaboratively prepare an outline for a classification/compensation review. This outline shall include positions to be reviewed, a job description review process, including an appeals, classification . and classification/compensation survey proposal (to be conducted by a mutually agreeable third party). This timeline shall be completed by November 1, 2007. The classification/compensation survey must be completed by Febniary 1, 2008. The parties will negotiate wages once the review is completed. All dates may be changed upon mutual agreement of both parties."

6. The parties began negotiating under Article 12.l in September 2008. During negotiations, the parties bargained wage adjustments based on a cost of living increase (COLA) to be effective July 1, 2008, and the results of the classification/compensation survey.

7. City Manager Robert Maxfield alone represented the City in negotiations. The Commission hired Maxfield as acting city manager in January 2007 and appointed him to the position permanently in May 2007. Maxfield was not involved in negotiating the parties' 2006-09 agreement, and had no prior experience and minimal training in negotiating collective bargaining agreements. Ma'\field does not have authority to change the salary structure without Commission approval. Maxfield understood that the City and Union were negotiating a COLA increase and the outcome of the classification and compensation study. He believed the two issues were connected because they were both economic issues.

8. The Union's bargaining team included AFSCME Council 7 5 Field Services Director Rick Henson and Local Union President Larry Nearhing. Henson did not normally represent the Union in bargaining and was not involved in negotiating the parties' 2006-09 agreement. He became involved in the negotiations vvith the City after the Union's assigned representative, Stacy Chamberlain, went on leave. Henson has extensive experience negotiating collective bargaining agreements.

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9. Henson understood that the negotiations involved two separate topics. The first topic was the contract reopener to address a potential COLA increase. Henson believed that a tentative agreement reached on this issue was subject to the parties' ratification.

The second topic was the implementation of the results of the classification and compensation study. Henson understood that the parties would look at the collected data and, if the data reflected that raises were needed, the parties would negotiate over how and when to implement those raises. Henson believed that because the study was part of an existing contract, these raises would then be implemented ·without the need for ratification. Henson perceived· that Maxfield had authority to sign the agreement on the classification/compensation plan implementation because he was the City Manager and never said he did not have the authority. Henson saw the classification/compensation study negotiations as different from the reopener negotiations because during the reopener negotiations the parties would not rely on collected data. Instead, they would bring their own views, and bargain within the full scope of their rights.

10. Nearhing had been local Union president since approximately 2004. He was involved in negotiations for one other contract. He was never involved in negotiating or implementing a classification/compensation study at the City. Nearhing understood that under the reopener the parties would negotiate wages and compensation. He believed that the Union had to vote on an agreement reached as a result of the reopener negotiations. Under the classification plan, he believed that the parties would work together to find an organization that would study the wages and make wage comparisons, based on which the parties would then negotiate wages and compensation. Nearhing understood that Maxfield was the negotiator for the City, and believed Maxfield had authority to negotiate and sign the agreements.

11. During the negotiation process, the parties never proposed, discussed, or entered into any ground rules. They also never talked about Ma,uield's authority to negotiate and sign any agreements or the parties' obligations to seek ratification of any agreements. Maxfield never stated during the negotiations that he had authority to enter into agreements that were not subject to the approval of the Commission or that he was required to get the Commission's approval for any agreements. Nor did· the parties discuss Henson's or Maxfield's understanding of the negotiation process.

12. Sometime prior to November 5, 2008, the parties reached a conceptual agreement on a COLA increase and adjustments to the classification ranges and steps. Henson did not attend all of the meetings in which the parties' discussed the terms of their agreement.

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13. Based on the conceptual agreement, Henson prepared two separate written agreements because he believed that the COLA increase needed to be ratified but that the adjustments resulting from the classification/compensation review did not. Henson did not tell Maxfield why the agreements were presented separately.

14. One agreement entitled "Tentative Agreement Between City of Warrenton andAFSCME Local 27 46-5" (Wage Agreement) includes signature lines for the City and the Union and states:

"By the signing of the signatures below the parties agree that they have reached a tentative settlement for 2008. The terms are as follows.

"Wage Reopener:

"l) A three percent (3%) across the Board wage increase added to all classifications.

"2) Retroactivity pay increase back to July l, 2008.

"3) Subject to ratification by the Union and the City."

15. The other agreement is entitled "Agreement Between City of Warrenton and AFSCME Local 2746-5" (Classification/Compensation Agreement). The first sentence in this Agreement states that "[b ]y the signatures below the parties agree to the terms adjusting classification Ranges and Steps." The Classification/Compensation Agreement then lists thirteen adjustments to specific classification ranges and steps and ends with signature lines for Maxfield, on behalf of the City, and Nearhing, on behalf of the Union. The Classification/Compensation Agreement includes no reference to the Wage Agreement or ratification.

16. On November 5, 2008, Maxfield and Nearhing met and signed the two agreements prepared by Henson. Henson was not present during this meeting. Maxfield did not question why there were separate agreements and, based on his limited experience, assumed this was the correct procedure. After signing the agreements, Maxfield told Nearhing that he would take the two agreements to the Commission for their approval.

17. On December 4, 2008, the Union ratified the Wage Agreement. The Union did not vote on the Classification/Compensation Agreement.

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18. On December 9, 2008, the Commission met to consider the Wage Agreement and the Classification/Compensation Agreement. Maxfield recommended that the Commission approve the agreements as a package, but the Commission declined to ratify the agreements. The Commission recommended that the parties continue their negotiations over the issues.

19. Sometime prior to February 20, 2009, Council 75 Representative Chamberlain contacted the City's labor consultant, Frank Forbes, to determine the status of the Classification/Compensation Agreement. On February 20, Forbes sent an e-mail to Maxfield, with a copy to Chamberlain, which stated:

"I discussed the status of the classification study and current bargaining with the union representative, Stacy Chamberlain, both yesterday and today. I indicated to her that I will be recommending to the City Council on March 5, 2009, to implement the study and resume bargaining for both the current year and the year beginning July 1, 2009.

"Ms. Chamberlain has indicated that the union may choose to file an Unfair Labor Practice (ULP) regarding the study implementation. If that occurs, it might delay settling the issues for some time."

20. On March 11, 2009, Forbes sent an e-mail to Chamberlain notifying her that the Commission "did not change their earlier disapproval of the package recommended by the City Manager that included the July 1, 2008, COLA [cost of living adjustment] and the implementation of the Classification and Compensation Study." Forbes indicated that the Commission had directed its representatives to resume negotiations with the Union and requested potential bargaining dates from Chamberlain.

21. On May 1, 2009, the Union filed this complaint.

22. In late May 2009, the parties entered into negotiations over the 2008 COLA and a successor to the 2006-09 Collective Bargaining Agreement. In July 2009, as part of these negotiations, the City and the Union entered into an agreement on the remedy for this unfair labor practice proceeding, which provides:

"I. The City agrees to implement a three percent (3%) COLA for all bargaining unit employees retroactively to July 1, 2008.

"2. If the Union prevails on the pending ULP against the City, the union agrees that the· compensations and classification study agreement adjustments will be reduced by the three percent (3%)

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2008 COLA for those employees whose classification is to be adjusted by more than three percent (3%). For example: If an employee classification is to be adjusted by seven percent (7%) under the compensation and classification study agreement the City will reduce the percentage by three percent (3%) and the classification will be adjusted upward by four percent (4%). Employees in classifications that are adjusted to a level equal to or less than three percent (3%) by the compensation and classification study agreement shall receive the full the [sic] three percent (3%) 2008 COLA regardless of the outcome of the ULP.

"3. In no event will a classification be adjusted below the current rates or will employees receive wages below the amount they received prior to the result of the ULP as a result of this agreement.

"4. If the City prevails on the pending ULP, the employee's wages will not be adjusted and the employees will only be entitled to the three percent (3%) 2008 COLA.

"5. This agreement has no bearing on any cost of living or wage adjustments employees may receive pursuant to a collective bargaining agreement or future agreements."

CONCLUSIONS OF LAW


2. The City did not violate ORS 243.672(l)(g) when it failed to implement the November 5, 2008 Classification/Compensation Agreement.

DISCUSSION

ORS 243.672(l)(g) makes it an unfair labor practice for "a public employer to violate the provisions of any written contract ;vith respect to employment relations." Pursuant to Article 12 of their collective bargaining agreement, the parties completed a classification/comp_ensation review and negotiated a_ COLA increase for the fiscal year beginning July 1, 2008. The Union drafted the final agreement for signature which consisted of two separate documents; one covered the COLA increase and stated that it was subject to ratification, and the second covered the

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classification/compensation review and stated it was effective upon signature. The City Manager and the Local Union president signed both agreements but the City failed to ratify either agreement.

The parties agree that the COLA agreement was subject to ratification. The issue before us is whether the classification/compensation agreement was effective upon signature or was subject to ratification by the parties.

The Union contends that we must limit our review of this matter to the plain language of the wage and compensation agreement, which was effective upon signature. The City contends that the classification/compensation agreement was merely one part of an overall wage and compensation agreement as provided for in the collective bargaining agreement-a contract which both parties agree was subject to ratification. The City further argues that the City Manager did not have the authority to bind the City without ratification.

To determine the parties' intent to enter into a contract and determine the meaning of that contract, we must begin with the parties' collective bargaining agreement. We apply the three-part analysis described in Li11col11 County Education Association v. Lincoln County School District, Case No. UP-14-04, 21 PECBR 20, 29 (2005). We first examine the text of the disputed language in the context of the document as a whole. If the provision is clear, the analysis ends. If the provision is ambiguous, we examine extrinsic evidence of the parties' intent. Finally, if the provision remains ambiguous, we resort to appropriate maxims of contract construction. Yogma11 v. PmTOtt, 325 Or 358, 937 P2d 1019 (1997). We begin by examining the text and context.

Article 12 COMPENSATION of the parties' collective bargaining agreement provides, in pertinent part;

"12.l General

"Employees shall be compensated in accordance with the following and the wage schedule attached to this agreement and marked Exhibits 'A' and 'B' which is hereby made a part of this agreement * * *."

Section A of Article 12.1 provides that for the fiscal year beginning July 1, 2008, the parties shall renegotiate wages "based on the results of the joint class and compensation review." Article 12, Section Cprovides for a classification/compensation survey by an outside third party and states that "[t]he parties will negotiate wages once the review is completed."

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The term "wages" is not defined in the parties' collective bargaining agreement. Accordingly we assign it its plain meaning. Webster's Third New Intemational Dictionmy (2002) defines wages as "a price paid someone for his labor or services." We also note that Oregon's wage and hour law, defines "wages" as "all compensation for performance of service by an employee for an employer, whether paid by the employer or another person, including cash value of all compensation paid in any medium other than cash." ORS 652.210(5).

When we apply the plain meaning of the term "wages" to the context of Article 12, we conclude that wages encompass both the COLA increase and an employee's classification and its corresponding rate of pay. It is axiomatic that an employee's classification and rate of pay are part and parcel of an employees wages.

The collective bargaining agreement clearly establishes a bargaining relationship between the classification/compensation survey and the COLA. Article 12.1.C sets out the process for the compensation/classification review and provides that the parties "will negotiate wages once the review is completed." Article 12.1.A specifically provides that the parties "shall renegotiate wages prior to the beginning of the fiscal year based on the results of the joint class and compensation review." (Emphasis added.) Article 12 requires the parties to complete a two-part process: first establish a position's classification and corresponding rate of pay, then based on those results, agree to a COLA adjustment (if any). Only the combination of the two issues constitutes a "wage" agreement.

The parties' actions bolster this interpretation. The parties negotiated over both issues at the same time and reached tentative agreement on both at the same time. The issues were never treated separately until the Union artificially separated them by drafting two agreements.3 The City Manager stated at signing that he would take the agreements to the Commission for ratification and the Union did not object. We conclude that the issues are inextricably bound and cannot be separated.

The Union contends, and the City disagrees, that the City Manager had apparent authority to bind the City with his signature. The Union cites Tri-County Metropolitan Transportation District of Oregon (Trilvlet) v. Amalgamated Transit Union, Division 757, Case No. UP-55-05, 22 PECBR506 (2008) in support ofits argument. We do not agree. In TriMet, the union asserted that a signed agreement between the union's president and an employer representative was not a binding contract because the

3The Union drafted the Classification/Compensation Agreement. Along with the Oregon courts we have adopted the adage that any ambiguity in an agreement is resolved against the party who drafted it. Heinze/ v. Backstrom, 310 Or 89, 96, 794 P2d 775 (1990).

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agreement was subject to ratification by bargaining unit members. We held that "[a] contract made by negotiators for a labor organization and an employer will be enforceable ·without ratification when the parties give their negotiators authority to reach agreement. * * * Authority may be either actual or apparent." Id. at 546. "Actual authority is 'that authority which the principal confers upon the agent in express terms.' Apparent authority is created 'by some conduct of the principal which, when reasonably interpreted, causes a third party to believe that the principal consents to have the apparent agent act for him on that matter. The third party must also rely on that belief.'" Id. at 546. (Citations omitted.)

The Union does not argue that Ma.meld had actual authority but that he had apparent authority. The Union bases its assertion on the fact that the Commission appointed Maxfield to bargain on its behalf, and neither the Commission nor Maxfield conditioned agreement on the classification/compensation adjustments on ratification. Where an understanding exists that a whole agreement is subject to ratification, " [a] party that departs from such an understanding bears the burden of showing that the parties had agreed to a different procedure." International Association of Fire Fighters, Local No. 2285 v. Douglas County Fire District No. 2, Case. No. UP-40-88, 11 PECBR 806, 817 ( 1989). Here, the Union bears the burden of proof.

In Trilvlet we considered evidence of the parties' past practice and prior communications to determine whether ratification was required. Unlike Tri1'1et, here there is no evidence regarding the parties' past practice or prior communication. The Union produced no evidence that the City Manager has ever had the authority to adjust compensation without the Commission's prior approval. Accordingly, the Union failed to meet its burden of proof.

In Trilvlet, we stated our future expectations regarding ratification:

"In the future, however, if a party has not provided timely written notice that its negotiator's agreements need to be ratified, it must demonstrate by clear and convincing evidence that it expressed this requirement early in the negotiations process." TriMet, 22 PECBR 547-48 n 21.

Neither the City or Union met our expectations. Unlike TriMet, however, the parties here agreed that the Article 12 wage reopener was subject to ratification. The only question was whether the classification/compensation survey was part of the wage reopener. We concluded that it was and therefore subject to ratification.

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Based on the clear language of the collective bargaining agreement and the parties' actions, we conclude that the Classification/Compensation Agreement was only one part of the Wage Agreement and was thus subject to ratification. Accordingly, the City did not violate ORS 243.672(l)(g) when it refused to implement that Agreement. We will dismiss the complaint.

ORDER


DATED this 2-1 day of June, 2011.

**Paul B. Gamson, Chair


Susan Rossiter, Boar


**Chair Gamson Dissenting:-

The City and the Union conducted labor negotiations through their designated bargaining representatives. The representatives reached an agreement, which they reduced to writing and signed, regarding a class and compensation study. Prior to signing the agreement, neither party indicated that the agreement had to be ratified before it became final. To the contrary, the. agreement provides that by their signatures, the parties agree to the terms. The City Commissioners refused to ratify the agreement and now assert the City is not bound by it. The issue is whether, in addition to the City negotiator's signature on the agreement, the City Commissioners needed to ratify the

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agreement in order for it to become enforceable. Based on a long line of cases from the courts and this Board, I am compelled to conclude that the City is bound by the agreement of its designated representative because the City never made ratification a condition of agreement.

More than 30 years ago, this Board observed that "[t]here is no requirement in Oregon law that a contract be ratified." Coliseum Emplqyees Association/Oregon Independent Labor Council JJ. Exposition and Recreation Commission, Ciry of Portland, and T71eatrical Emplqyees Union, Local B-20, Case No. C-83-78, 3 PECBR 1971, 1972 (1978). About eight years later, in a case strikingly similar to this one, we explained and applied this principle. In South Benton Ed. Assn. v. JV!onroe Union High, Case No. UP-97-85, 9 PECBR 8556 (1986), affd 83 Or App 425, 732 P2d 58, rev den 303 Or 331, 736 P2d 565 (1987), a school district argued that an agreement reached by its designated bargaining representative had to be ratified in order to become effective. This Board rejected the argument. We explained:

"[D]esignated representatives of a school board - - that is, those persons authorized to act as agents in collective bargaining on behalf of a school board - - may, as a result of collective bargaining, reach an agreement with a labor organization that is enforceable by this Board, even though the agreement has not been formally ratified. The settlement proposal of May 3 was not conditioned on ratification by the full School Board. It is not disputed that the District's designated representatives had the authority to make and accept proposals in bargaining. No provision of the PECBA requires that collective bargaining agreements be ratified by the negotiators' constituents before they are enforceable." 9 PECBR at 85 6 7 .4

We applied these principles and held that the agreement reached by the designated bargaining representative was binding because it was not conditioned on ratification. See also Lane Unified Bargaining Council v. Crow-Applegate-Lorane School District, Case No. UP-28-97, 17 PECBR328, 338 ( 1997) (citing South Benton for the proposition that "an agreement may be formed without ratification where the settlement was not conditioned on ratification.").

More recently, we further clarified that ratification is necessary only when a party notifies the other early in the bargaining process that ratification is a condition of agreement. In Tri-Counry J\1et1vpolitan Transportation District of Oregon (TriiVlet) 11.

4The Court of Appeals affirmed the Board's order in South Benton, and quoted this portion ofthe Board's order with approval. 83 Or App at 429.

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Amalgamated Transit Union, DiFision 757, Case No. UP-55-05, 22 PECBR 506 (2008), the local union president signed a written agreement with the employer concerning a controversial issue. The union membership opposed the agreement, and the union asserted that the president's agreement was unenforceable because the bargaining unit never ratified it. The union never gave the employer oral or written notice that ratification by the bargaining unit was a condition of agreement. As a result, we had to comb through a long and often contradictory record, developed over three days of hearing, to determine whether the employer knew, or should have known, that the agreement would be valid only if the bargaining unit ratified it. In a 48-page order, we concluded that the agreement was enforceable because the union failed to adequately notify the employer that ratification was required.5

To make the niles clear for parties in bargaining, and to avoid the need for this type of extensive litigation, we laid out a clear and simple analytical framework we would apply to future disputes about the rieed for ratification. We explained:

"As discussed above, the PECBA does not require collective bargaining agreements to be ratified by a negotiator's constituents in order to be enforceable. South Benton Education Association JJ. Monroe Union High School District #1, Case No. UP-97-85, 9 PECBR 8556 (1986), aff d 83 Or App 425, 732 P2d 58, 1w den 303 Or 331, 736 P2d 565 (1987). A party that intends to condition agreement on ratification must clearly indicate this

5The rule that a negotiator's agreement is enforceable unless it is conditioned on ratification is a neutral principle that does not favor labor or management. In South Benton, we applied the principle against the employer's interests; in Trilvlet, we applied it against the union's interests.

The case against the need for ratification is even more compelling here than in South Benton or T1ilvlet. In both of those cases, the signed agreements were silent on the need for ratification. Here, the document the parties signed is not silent. It is entitled "Agreement Between City of Warrenton and AFSCME Local 2 7 46-5 ," and the first sentence says: "[b ]y the signatures below the parties agree to the terms adjusting classification Ranges and Steps." (This is in sharp contrast to the companion document, signed at the same time, which is entitled "Tentative Agreement" and which specifies that ratification is a condition of agreement.) The majority ignores a cardinal rule of interpreting a document: "[i]n the construction of an instrument, the office of the judge is simply to ascertain and declare what is, in terms or in substance, contained therein, not to insert what has been omitted, or to omit what has been inserted * * *." ORS 42.230. The majority omits language thatthe contract is enforceable upon signing, and it inserts a condition that the contract must be ratified.

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intent. [AFSCME Council 75 and] Worthington v. City of Sweet I-Jome, [Case No. UP-107-89] 12 PECBR224 [(1990)]. This case illustrates the need for the parties to establish their positions early in the bargaining process regarding ratification. The clearest indication is written notice to the other party that, in addition to the negotiator's agreement, ratification by the constituents is required before an agreement is final. Written ground rules are an optimal example. The parties can express their mutual understanding of whether agreements are subject to approval by the employer's governing board or the union's membership. We will not establish a bright-line rule that requires all limitations on a negotiator's authority to be written. In the future, however, if a party has not provided timely written notice that its negotiator's agreements need to be ratified, it must demonstrate by clear and convincing evidence that it expressed this requirement early in the negotiations process. This furthers the underlying PECBA policy of 'encouraging practices fundamental to the peaceful adjustment of labor disputes. ORS 243.656(3). A clear understanding of the authority of the other party's negotiator is essential to an orderly and effective bargaining process." Trilvlet, 22 PECBR at 547-48 n 21.

This language is recent and it's clear. It describes precisely how we will analyze cases like the one currently before us. It creates a presumption that ratification is not necessary unless a party gives clear and timely notice that its agreement is conditioned on ratification. But did we really mean what we said? Apparently not. The majority acknowledges that the parties failed to meet the Tri1'1et requirements, but it then ignores that conclusion. Instead, it engages in the same type oflabyrinthine analysis that T1i1\!let was designed to avoid. 6

In my view, the quoted passage from TriMet provides all the guidance we need to resolve this case:

6The majority concludes there is no evidence that the City negotiator had authority to enter a binding agreement with the Union. That misses the whole point of Tri1\!fet. Under Tri1\!fet, negotiators are presumed to have such authority unless they give notice to the contrary. The City gave no such notice here. In any event, there was evidence the City's negotiator had authority. In South Benton, both this Board and the Court of Appeals found sufficient authority in the negotiator's ability "to make and accept proposals in bargaining." 9 PECBR at 8567; 83 Or App at 429. There is no dispute here that the City's negotiator had such authority. In addition, and unlike any other reported case, the City's negotiator signed an agreement which stated that it was effective upon signing. In my view, this constitutes overwhelming evidence of the negotiator's authority to enter an agreement.

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1. It tells us who must act-the party asserting that ratification is a condition of final agreement. In this case, the City must act because it is the party asserting that the agreement is conditioned on ratification.

2. It tells us what action the party must take-notify the other party of the condition. Here, the City was obligated to notify the Union that agreement was conditioned on ratification by the City Commissioners. The majority completely flips this burden of giving notice on its head. It concludes that the Union failed to prove that it told the City the agreement was not subject to ratification. Slip op. at 10. Under TriMet, the Union had no obligation to notify the City. It was up to the City, as the party asserting the right to ratify, to notify the Union, and not the other way around as the majority would have it.

3. It tells us when a party must notify the other party that agreement is conditioned on ratification-"early in the negotiations." We did not specify how early in the negotiation process the notice had to be given, but that does not matter here. The City did not, at any time during negotiations, mention the need for ratification. Finding of Fact 11. The City mentioned ratification for the first time after the parties had already signed the agreement. This clearly is not "early" in the negotiation process.

4. It tells us how the party must give the notice-either in writing or by "clear and convincing evidence" that it gave timely notice. It is undisputed that the City never gave written notice that agreement was conditioned on ratification. Absent written notice, there needs to be "clear and convincing evidence" that it gave timely notice. This is an extremely high standard. '"Clear and convincing evidence' means evidence establishing that the truth of the facts asserted is highly probable." In Re Groom, 350 Or 113, 121 (2011); State ex rel Dept. if Human Sen1ices v. Simmons, 342 Or 76, 95, 149 P3d 1124 (2006). There is no evidence that the City mentioned ratification at any time during negotiations, and certainly no clear and convincing evidence that it did.

5. It tells us wiry a party must give timely notice that its agreement is conditioned on ratification-because the notice is "essential to an orderly and effective bargaining process.'' Timely notice furthers the purposes and policies of the PECBA.

When we apply the proper analysis to these facts, the outcome seems inescapable. We begin with the presumption that agreements are not automatically conditioned on ratification. A party that wants to make ratification a condition of agreement must give adequate and timely notice to the other party. Here, the City did not, at any time during the negotiation process, notify the Union that its agreement was conditioned on ratification by the City Commissioners. As a result, the class and compensation study agreement signed by the City's negotiator was enforceabie even though the City Commissioners never ratified it. Accordingly, I would order the City to abide by it.

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The majority reaches a contrary conclusion. I find its analysis contrived and unconvincing. It ignores the unambiguous language of the signed agreement which expressly says it becomes effective upon signing; it ignores the analysis we established so recently in Trilvfet; it improperly shifts the burden away from the City to prove it gave notice that the agreement was conditioned on ratification, and places the burden instead on the Union to prove it gave notice that the agreement was not conditioned on ratification; it fails to explain how, under current Board precedent, a doettment could be subject to ratification even though the parties never discussed ratification as a condition of agreement; it interprets the collective bargaining agreement, which is not at issue here, and fails to interpret the signed agreement on class and compensation, which is the only document at issue; it creates the fiction that there was only one agreement, even though the parties signed two separate documents with different terms; and when it combines these two documents, the majority inexplicably decides that the requirement to ratify, contained in the companion document which is not at issue here, somehow also applies to the separate signed document at issue here and which expressly stated that ratification was not necessary.

The effect of the majority's order is to punish the Union because the Union was open and forthright regarding its intentions about ratification. The Union spelled out in explicit terms that the wage agreement needed to be ratified and the class and compensation agreement did not. The City's negotiator signed both agreements. The majority releases the City from its contractual obligation without any shuwing of fraud, misrepresentation, mutual mistake, illegality, or any of the other accepted grounds for voiding a contract provision. Under the majority's order, the Union would have been better off under Board precedent by remaining silent instead of making its intentions clear. Rewarding silence rather than clarity does not further the PECBA policy to encourage "practices fundamental to the peaceful adjustment of disputes * * *." ORS 243.656(3). I respectfully dissent from the majority's conclusion to the contrary.

~

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OF THE

STATE OF OREGON

Case Nos. UP-57/64-10


MULTNOMAH COUNTY CORRECTIONS ) DEPUTIES ASSOCIATION, )

Complainant, ) v. )

) MULTNOMAH COUNTY, )

Respondent. ) )

Case No. UP-057-10 ) ~~~~~~~~~~~~~~~~)

) MULTNOMAH COUNTY, )

Complainant, ) )

v. ) )

MULTNOMAH COUNTY CORRECTIONS ) DEPUTIES ASSOCIATION, )

) Respondent. )

) Case No. UP-064-10 )

~~~~~~~~~~~~~~-)


On February 14, 2011, this Board heard the above cases on an expedited basis. The hearing closed on February 25, 2011, upon receipt of the parties' post hearing briefs.

Thomas K. Doyle, Attorney at Law, Bennett Hartman Morris & Kaplan, LLP, Portland, Oregon, represented Multnomah County Corrections Deputies Association.

Kathy Peck, Attorney at law, Williams Zografas &Peck, Portland, Oregon, represented Multnomah County.

On November 10, 2010, the Multnomah County Corrections Deputies Association (Association) filed an unfair labor practice complaint (UP-057-10) against Multnomah County (County) which alleges that the County violated ORS 243. 6 7 2 ( 1 )( e) when it refused to bargain over the Association's training hours proposal. The Association subsequently amended its complaint on Jant1ary 20, 2011.

On December 22, 2010, the County filed an unfair labor practice (UP-064-10) against the Association which alleges that the Association violated ORS 243.672(2)(b) when it included a permissive subject of bargaining in its final offer.

This Board consolidated the cases for hearing and, at the parties' request, granted expedited consideration.

The issues are:

1. Did the County refuse to bargain over the Association's training proposal in violation of ORS 243.672(l(e)?

2. Did the Association bargain in bad faith, in violation of ORS 243.672(2)(b), when it included, over the County's objection, a proposal for mandated hours of training in the final offer it submitted to the State Conciliator?

RULINGS

The rulings have been reviewed and are correct.

FINDINGS OF FACT1

1. The Association is the exclusive representative of a bargaining unit of strike-prohibited corrections employees employed by the County, a public employer.

2. The County and Association were parties to a collective bargaining agreement effective July 1, 2004 through June 30, 2010.

3. On or about August 14, 2008, the parties amended and extended their 2004-2010 collective bargaining agreement. The amended agreement was effective August 14, 2008, and continues through June 30, 2014.

1The Findings of Fact are based on the parties partial fact stipulation and the evidence received at hearing.

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4. Addendum A of the amended and extended 2008-2014 agreement provides:

"Reopener for 2010-2011: Parties agree to reopen Article 12 Health and Welfare, Article 16 Wages and Classification, and two other Articles each of their choice (but not Article 6) no later than February 1, 2010. All other Articles and terms of the Agreement shall continue without interruption for the term thereof."

5. The parties timely reopened the 2008-2014 agreement, in accordance with the terms of Addendum A, for a limited reopener for 2010-2011.

6. After the ground rules meeting, the parties began reopener bargaining on March 26, 2010. The Association identified Article 17 "Corrections Service and Training Achievement Program" and Article 20 "Settlement of Disputes" as additional articles they sought to modify.

7. By April 9, 2010, the Association had submitted formal proposals seeking modification of the current language in Article 17 and Article 20 and provided written copies of each proposal in accordance 'vith the ground rules. The Association's proposal for Section 5 of Article 17 stated:

"5. Training. The Sheriff will establish training requirements for Corrections Deputies and Corrections Sergeants. Beginning in the second year of this agreement. all sworn employees shall receive a minimum of forty ( 40) hours of approved training per year. of which at least twenty (20) hours shall be DPS ST [State Department of Public Safety Standards and Training]- approved training. The employee shall participate in training. including firearms training, at times set by the Sheriff or his designees. Employees participating in any required training during off-duty hours shall be compensated at the overtime rate for time spent in training, or may be permitted to flex hours with the approval of their supervisor."

8. The parties had another bargaining session on June 11, 2010. At this session, County bargaining representative Blaise Lamphier notified the Association bargaining representative that it was the County's position that the follawing language in the Association's Article 1 7 proposal was a permissive subject of bargaining which the County refused to bargain:

"5.* * * Beginning in the second year of this agreement, all sworn employees shall receive a minimum of forty (40) hours of approved

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training per year, of which at least twenty (20) hours shall be DPSST approved training."

9. The County did not refuse to bargain with the Association regarding any aspect of the Association's Article 17 training proposal with the exception of the language set forth above.

l 0. On October 26, 2010, the Association submitted its final offer to the State Conciliator.· The Association's final offer included the language in Section 5 of Article 17, which the County declared permissive.

11. Corrections officers must be certified by the DPSST before being placed in a position. Once certified, corrections officers are not required to undergo regular training in order to maintain their DPSST certifications. They must complete miscellaneous training required by other governmental agencies or the Multnomah County Sheriffs Office.

12. All bargaining unit deputies and sergeants receive an average of 24 hours of annual in-service training. Among the subjects covered by this training are: OSHA, blood borne pathogens, CPR/First Aid, TASER recertification, use of pepper spray, fire arms, use of force, harassment and discrimination, legal updates, inmate suicide prevention, communication sldlls, and report vvriting.

13. In addition to annual in-service training, individual deputies and sergeants may apply for additional training. Requests are granted or denied based on relevancy to the job, potential benefit to the Agency, the availability of funds, and other factors. Some employees apply for and receive an average of over l 00 hours of training per year.

14. Oregon fail Standards (Standards) were written by a committee of the Oregon State Jail Command Counsel under the auspices of the Oregon State Sheriffs' Association. The Standards are guidelines for the operation of county jails in the State of Oregon. The Standards are not legally binding but establish benchmarks which counties can use as a means of evaluating their operations, as a framework for writing facility policy and procedure manuals, and as a tool for inspections. The Standards also provide minimal instruction to counties that are planning construction of new facilities.

15. The Standards provide that corrections deputies must satisfactorily complete a minimum of 40 hours of training each year. The rationale is that a minimum of 40 hours of in-service training is necessary to maintain professional and technical competence.

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16. DPSST provides a wide variety of safety and non-safety related training.

17. The majority of positions filled by bargaining unit members are post-driven. When a deputy or sergeant is removed from their regularly assigned post for any reason, including training, his/her position must be backfilled by another deputy or sergeant on an overtime basis.

18. The estimated cost for backfilling positions to provide 40 hours of training for each deputy and sergeant during the 2010-2011 fiscal year is $1,194,683.00.

19. County corrections officers do not need an additional 40 hours of annual training to perform their jobs competently and safely. Additional training in some subjects, however, can result in a safer worldng environment.

CONCLUSIONS OF LAW


2. The County did not violate ORS 243 .672(1) ( e) by refusing to bargain over the Association's training proposal.

In negotiations to reopen portions of its 2008-2014 collective bargaining agreement vvith the County, the Association proposed that each bargaining unit member receive a minimum of 40 hours of training per year. The County declared this proposal permissive and refused to bargain about it. When the Association submitted its final offer to the State Conciliator under ORS 243.672(2)(b), it included the training proposal the County labeled permissive.

Each party filed an unfair labor practice concerning negotiations over the Association's training proposal. The Association contends that the County violated its duty to bargain in good faith under ORS 243.672(l)(e) by refusing to negotiate about the proposal. The County, however, asserts that the proposal is permissive and that it had no obligation to bargain about it. The County charges that the Association violated its good faith bargaining duty when it included the training proposal in its final offer to the State Conciliator.

The Public Employee Collective Bargaining Act (PECBA) obligates both public employers and labor organizations to engage in good faith bargaining with respect to "employment relations." ORS 243.650(4); ORS 243.672(l)(e); ORS 243.672(2)(b).At the crux of the parties' dispute here is the definition of "employment relations" in ORS 243.650(7)(f), which provides, in relevant part:

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"For employee bargaining involving employees covered by ORS 243. 736,2

'employment relations' includes safety issues that have an impact on the on-the-job safety of the employees* * * ."

The parties disagree in their interpretation and application of this statute. The Association contends that requiring training for bargaining unit members will result in more technically competent and professional employees and create a safer workplace. According to the Association, its training proposal is therefore mandatory because it concerns a "safety issue" that impacts employees' on-the-job safety. The County, however, argues that the disputed proposal involves no "safety issues" under subsection (7)(f). The County contends that the proposal concerns the assignment of work to bargaining unit members, a subject expressly made permissive by ORS 243.650(7)(g), which provides that for "all other employee bargaining except school district bargaining and except as provided in paragraph (f) of this subsection, 'employment relations' excludes * * * assignment of duties * * *."

Thus, we begin our consideration of the parties' claims by examining the relevant language in ORS 243.650(7)(£). This is a case of first impression for this Board. We have had no occasion to consider the current version of this statutory provision that was enacted by the 2007 Oregon legislature. Or Laws 2007, ch 142, §l(a).

Our goal in interpreting a statute is to determine the legislature's intent. ORS l 74.020(1)(a). To do so, we use the methodology set forth in PGE 11. Bureau of Labor and Industries, 317 Or 606, 859 P2d 1143 ( 1993), as modified by amendments to ORS 174.020 and State v. Gaines, 346 Or 160, 206 P3d 1042 (2009).3 We begin by

20RS 243. 736 specifies the categories of public employees who are prohibited from striking.

30RS 17 4.020 provides, in relevant part:

"(l)(a) In the construction of a statute, a court shall pursue the intention of the legislature if possible.

"(b) To assist a court in its construction of a statute, a party may offer the legislative hist01y of the statute.

"* * * * *

"(3) A court may limit its consideration of legislative hist01y to the information that the parties provide to the court. A court shall give the weight to the legislative history that the court considers to be appropriate."

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analyzing the text and context of the statute and then consider any relevant legislative history the parties may offer. We give this legislative history the weight we believe to be appropriate. If we are unable to determine the legislators' intent after examining the statute's text, context, and legislative history, we apply standard maxims of statutory constn1ction. PGE at 317.

We start ·with the text of ORS 243.650(7)(f). For strike-prohibited employees, a subject is mandatory under the first part of this statutory provision if it: ( 1) is a "safety issue" and (2) has "an impact on the on-the-job safety" of an employee prohibited from striking. Beginning with the first requirement, we note that the statute provides no definition of a "safety issue." We then look to the statute's context for guidance into the meaning of the term. Particularly important to our consideration of the statute's context are prior versions of this provision. See Carlson JJ. 1\1yers, 327 Or 213, 223, 959 P2d 31 (1998) (analyzing a statute's context includes an examination of earlier versions of the same statute).

Accordingly, we consider prior versions of subsection (7)(f). Before 1995, subsection (7)(f) was not part of the PECBA; in fact, no PECBA provision specifically addressed the inclusion or exclusion of safety in the definition of employment relations. Through case law, however, we concluded that safety was a mandatory bargaining subject. To determine if the subject of a proposal or policy change was safety, we typically balanced the proposal or policy's effect on management prerogatives against its effect on employees' workplace safety. If the proposal or policy had a greater effect on workers' safety than on management prerogatives, we concluded the subject was safety. Salem Police Empll!)'es Union F. City of Salem, Case No. C-94-84, 8 PECBR 6642, 6647 ( 1984) (proposal concerning provision of safe technology to officers was permissive; the proposal was so broad that it affected management prerogatives to a greater extent than employee safety) and Oregon Public Empll!)'ees Union v. State of Oregon, Executive Department, Case No. UP-71-93, 14 PECBR 746, 774 (1993) (proposal requiring assignment of additional staff or provision of extra safety equipment for employees assigned to transport patients substantially affected employee safety and was mandatory).

To find that the subject of a proposal was safety, we required that the language at issue directly address safety. In IAFF, Local 314 JJ. City of Salem, Case No. C-61-83, 7 PECBR 5819 (1983), affd 68 Or App 793, 798, 684 P2d 605 (1984), rev den 298 Or 150 (1984), we concluded that a proposal requiring the employer to maintain the existing number of firefighters assigned to a company was mandatory; the terms of the proposal directly addressed safety concerns. In Polk County v. Polk County Deputy Sheriffs Association, Case No. C-99/101-81, 6 PECBR 4641 (1981), we held that a proposal requiring the employer to assign a minimum of two officers to each shift was

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permissive because it concerned assignment. We explained: "[t]he issue of safety is not raised directly by the language of the proposal but only by extrinsic evidence offered to show the intent of the proposal; and since the proposal is unambiguous, and clearly permissive, we have no occasion to consider such evidence." Id. at 4650 (emphasis in the original).

We applied this same analysis inAssociatio11 of Orego11 C01nctio11s Empl<?Jlees v. State ef Orego11, Department ef C01nctio11s, Case No. UP-91-93, 14 PECBR 832 (1993) to conclude that the subject of a proposal was not workplace safety. There, the union proposed that the employer provide corrections employees with a concealed weapons depository where they could store concealed weapons they carried to and from work. We concluded that

"[t]he subject matter of the Association's proposal is the establishment of a concealed weapons depository. Under the facts of this case, the proposal does not concern the employer-employee relationship in the direct manner necessary to constitute a condition of employment. The proposal does not concern the health or safety of employees while they are performing their duties. Nor does it concern an off-duty activity required by the employer as a term of continued employment or that is a reasonably necessary adjunct of the employment itself." Id. at 867.

In 1995, the Oregon Legislature passed Senate Bill (SB) 750 which added ORS 243.650(7)(f) to the PECBA. As enacted by the legislature, ORS 243.650(7)(f) provided, in relevant part:

"For all other employee bargaining except school districts, 'employment relations' expressly excludes staffing levels and safety issues (except those staffing levels and safety issues which have a direct and substantial effect on the on-the-job safety of public employees) * * *." Or Laws 1995, ch 286, § 1 (f).

Subsequently, the 2007 Oregon Legislature enacted SB 400 which made the following changes to ORS 243.650(7)(f) and added subsection (g) (language added is shown in bold face type and language eliminated is placed in brackets and italicized):

"(f) For employee bargaining involving employees covered by ORS 243. 736, 'employn1entrelations' includes safety issues that have an impact on the on-the-job safety of the employees or staffing levels

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that have a significant impact on the on-the-job safety of the en1ployees. "[/] (g) For all other employee bargaining except school [districts] district bargaining and except as provided in paragraph (f) of this subsection, 'employment relations' excludes staffing levels and safety issues (except those staffing levels and safety issues [which] that have a direct and substantial effect on the on-the-job safety of public employees) * * * " Or Laws 2007, ch 141, §l(a).

The 1995 version of ORS 243.650(7)(f) required that to be mandatory, "safety issues" must have a "direct and substantial effect" on non-school district employees' on-the-job worldng conditions. The 2007 changes narrowed the group to which subsection (7)(f) applied-to strike-prohibited employees-and altered the relationship between the "safety issue" and on-the-job safety necessary to make a subject mandatory for bargaining. Now, "safety issues" need only "have an impact" on workplace safety to be mandatory. The 2007 amendments never changed the requirement that to be mandatory under subsection (f) a subject must be a "safety issue," however. For this reason, we consider cases in which we interpreted and applied the pre-2007 version of subsection (7)(f) to determine what is a "safety issue."4

In Roseburg Fire Fighters Association v. City of Roseburg, Case No. UP-47-97, 17 PECBR 611 (1998), the union alleged that the city violated its good faith bargaining duty by reducing minimum staffing levels in the fire department and implementing this change without completing the bargaining process. We found it unnecessary to decide if the subject of the change was safety or workload, concluding the subject was permissive under subsection (7)(f). If the subject of the change was safety, it did not

4In Kathryn T. vVhalen and Paul B. Gamson, Scope of Bargaining After Senate Bill 750, LERC Monograph Series, 73 ( 1996), future Board members Whalen and Gamson offered insight into the meaning and application of the 1995 version of subsection (7)(f). Writing soon after the passage of SB 750, the authors concluded that in order for a safety proposal to be mandatory under subsection (7)(f), it "(l) must expressly raise a safety issue on its face; (2) must concern safety while workers are engaged in work activities or activities required by the employer in connection with work; and (3) must be supported by competent and persuasive evidence showing a substantial effect on safety * * *."

The conclusion that the authors reached-that a mandatory safety proposal under subsection (7)(f) must "expressly raise a safety issue on its face"-was also reached by this Board in cases interpreting and applying SB 750. Because SB 400 did not change the requirement that to be mandatory under subsection (7)(f), a subject must be a "safety issue," the conclusion is still relevant and applicable.

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directly and substantially affect firefighters' safety; if the subject was workload, the change had only an insubstantial effect on workload.

Also in Roseburg, we considered union proposals to maintain minimum staffing levels made in bargaining the employer's changes. Although the evidence showed a relationship between staffing levels and firefighter safety, we concluded that none of the union proposals were specific to either safety or workload. We noted that we probably would not have found the subject of these proposals to be safety under the pre-1995 version of the law:

"The proposals made by the Association here more closely resemble those in Polk County [ 6 PECBR at 4641] than those in Salem [7 PECBR 4641]. As in Polk County, the Association's proposal on its face addresses only staffing levels. As we said in that case, '[t]he issue of safety is not raised directly by the language of the proposal but only by extrinsic evidence offered to show the intent of the proposal * * *.' (Emphasis in original.) 6 PECBR at 4650. The Association's proposal speaks for itself; it does not address safety. Even if the proposal directly addressed safety, the Association would still have to establish that the City's action had a direct and substantial effect on firefighter safety for the proposal to be mandatory." City of Roseburg, l 7 PECBR at 630 n 25.

We considered the issue of safety under the 1995 version of subsection (7)(f) in three other cases. InFOPPO v. Washington County, Case No. UP-70-99, 19 PECBR 411 (2001), the union charged that the county made an unlawful unilateral change when it adopted a policy prohibiting employees from carrying firearms on county property. We held that the subject of the policy in dispute was safety, and that the policy directly and substantially affected workplace safety by diminishing the potential for workplace violence through restrictions on possession of firearms. Id. at 426. Accordingly, we concluded that the county unilaterally and unlawfully changed a mandatory subject under subsection (7)(f) when it adopted the firearms policy.

In SEIU Local 503, OPEU v. State of Oregon, Department of Administrative Services and the Homecare Commission, Case No. UP-52-02, 20 PECBR 144 (2002), we held that a proposal requiring that the employer pay homecare workers for Hepatitis A and B vaccinations concerned the subject of healthcare benefits or safety. Regarding the proposal's safety aspects, we stated:

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"The subject of the proposal also may be characterized as concerning safety, since it seeks to provide protection to workers from serious infectious diseases to which they could be exposed on the job." Id. at 158.

We concluded the proposal was mandatory under subsection (7)(f) because it directly and substantially affected employees' workplace safety.

Finally, we interpreted and applied the 1995 version of subsection (7)(f) in SEIU Local 503, OPEU v. State of Oregon, Orego11 State Hospital, Case No. UP-13-02, 20 PECBR 189 (2003). There, the state hospital adopted a policy that prohibited mental health workers from using steel handcuffs to restrain disruptive patients. We concluded that the subject of the policy was safety because patient assaults and the use of patient restraints was a safety concern for both patients and staff. We held, however, that the ban against steel handcuffs did not directly and substantially affect workers' onthe-job safety because other effective forms of patient restraint were available. As a result, we concluded that the handcuff ban was permissive under subsection (7) (f) and the State need not bargain about the policy.5

In all of the cases where we held that the subject of the disputed proposal or policy was a safety issue, the proposal or policy clearly and directly addressed a matter linked to workplace safety: firearms (Washi11gto11 Cou11ry), patient assaults (Orego11 State Hospital), and infectious diseases (Homecare Commission). In none of these cases was it necessary to consider extrinsic evidence regarding the meaning and intent of the proposal or policy to decide if the subject was a "safety issue." The relationship between the proposal or policy and workplace safety was immediately apparent from the language under consideration. By contrast, the proposals in Roseburg did not directly address the issue of safety.

After considering the text and context of ORS 243.650(7)(£), we now turn to the legislative histo1y of the statutory provision. Under ORS 17 4.020(3), a party may offer legislative history to assist us in interpreting a statute, and we may limit our consideration of legislative history to the information provided by the parties. We give this history the weight we deem appropriate. Id. As the Oregon Supreme Court

5In IAFF, Local 890 v. Klamath Coun!JI Fire District #1, Case No. UP-16-00, 19 PECBR 533, 548 (2001), we considered whether proposals concerning a drug and alcohol policy were mandatmy subjects for bargaining. The employer asserted that the subject of the policy was safety and that this was a permissive subject under the version of subsection (7)(f) then in effect. We decided the case on other grounds, however. In dicta, we noted that a policy concerning drug or alcohol use might directly affect public employees' workplace safety and be mandatory under the version of subsection (7)(f) then in effect. Id. at 549 n 12.

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acknowledges, " [a] court need only consider legislative history 'for what it's worth-and what it is worth is for the court to determine." State v. Gaines, 346 Or 160 at 171. The Court cautions that the focus of analysis must be the statute's text because only the text has been considered and approved by the majority of the legislature. Id.

Consistent with these principles, we will consider only the legislative history offered by the Association. The Association offers two excerpts of this history. The first consists of a portion of the statement then-Governor Kulongoski made when he signed SB 400:

"By signing this legislation today, labor and management ·will work together to ensure the safety of Oregon's public workplaces by identifying and eliminating hazards, providing practical training and, most importantly, involving all employees in safe and healthy work practices." (Association post-hearing brief at 9.)

The former Governor's remarks, made after the passage of SB 400, do not provide persuasive proof of what legislators intended when they passed the bill. The Association offered no evidence to show that the former Governor had any involvement in the drafting of the bill or the legislative debate that preceded the bill's passage. The former Governor's comments are analogous to those made by legislators after the passage of a bill. Statements made about laws after they have been enacted are not particularly probative of legislative history. Lane Unified Bargaining Council v. South Lane School District, Case No. UP-36-98, 18 PECBR l, 21n10 (1999). Consequently, we give little weight to the former Governor's signing statement.

The second example oflegislative history the Association offers is an excerpt from the floor debate over SB 400 in the Oregon Senate. The excerpt consists of a colloquy between Senator Richard Devlin and Senator Floyd Prozanski, who sponsored the bill and carried it to the Senate floor. In this colloquy, Senators Devlin and Prozanski discuss what could be negotiated under the version of subsection (7)(f) enacted in 1995. Senator Devlin asks if he was a community correction officer and wanted to discuss mental health training under subsection (7)(f), would he be able to do so? Senator Prozanski replies "no." Senator Devlin then states: "I think we've had enough demonstration here about why it should be moved from [sic] permission to mandatory. ***."(Association post-hearing Brief at 10.)

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Even when we give Senator Prozanski's remarks the significance they merit,6 we do not find this discussion to be convincing evidence of a legislative intent to make training for strike-prohibited workers a mandatory bargaining subject. At most, the colloquy shows that two legislators (Senators Devlin and Prozanski) believed the bill would make it possible for corrections officers to bargain about the subject of "mental health training." However, this brief discussion provides no proof that a majority or even a significant number of legislators agreed with the two senators. 7 Accordingly, we give little weight to this portion of legislative history offered by the Association.8

6Courts attach particular significance to the statements of a legislator who carries a bill. See Crooked RiPer Ranch Water Compmry l'. PUC, 224 Or App 485, 492 198 P3d 967 (2008) (Court of Appeals based its conclusion about legislative intent on statements made by the senator who carried a bill on the senate floor).

7In Errand 11. Cascade Steel Rolling !Vlil/s, Inc., 320 Or 509, 539 n 4, 888 P2d 544 (1995), Justice Graber, in a dissenting opinion, noted some of the difficulties inherent in relying upon individual legislators' opinions:

"In general, an examination of legislative history is most useful when it is able to uncover the manifest general legislative intent behind an enactment. By contrast, an examination of legislative history is most fraught with the potential for misconstruction, misattribution of the beliefs of a single legislator or witness to the body as a whole, or abuse in the form of 'padding the record' when the views of only a small number of persons on a narrow question can be found."

8As part of the legislative history of SB 400, the Association submitted copies of various drafts of the bill that were considered during the 2007 Legislative session. The version of the SB 400 bill that was filed presession contained the following language in ORS 243.659(7)(£): "For employee bargaining involving employees covered by ORS 243. 736, 'employment relations' includes staffing levels and safety issues that have a potential impact on the on-the-job safety and the workload of employees." On March 16, 2007, the House Committee on Business and Labor amended this version of the bill to delete "potential" and insert "an" before the word "impact." (A-engrossed version of Senate Bill 400, elated March 16, 2007.) On April 12, 2007, the same House committee amended the bill to specify that for strike-prohibited employees, "'employment relations' includes safety and staffing only as they relate to on-the-job safety." (B-engrossecl version of Senate Bill 400, elated April 12, 2007.)

On May 2, 1997, the same House committee further amended SB 400; this version contains language that is now included in ORS 243.650(7)(£) and (g). Subsection (7)(f) of the May 2 version of the bill specifies that for strike-prohibited employees '"employment relations' includes safety issues that have an impact on the on-the-job safety of employees or staffing levels that have a significant impact on the on-the-job safety of the employees." (C-engrossed version of Senate Bill 400, elated May 2, 2007.)

(Continued ... )

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Based on our consideration of the text and context of ORS 243.650(7)(£) and the legislative history offered by the Association, we hold that the subject of a proposal is a "safety issue" if the proposal directly and unambiguously addresses a matter related to strike-prohibited employees' workplace safety. In reaching this conclusion, we are guided by the rationale of cases decided both before and after subsection (7)(f) was added to the PECBA by SB 750. Prior to the passage of SB 750, we determined whether the subject of a proposal or policy was "safety" to decide if it was mandatory; after SB 750 became law, we determined whether the subject of a proposal or policy was a "safety issue" to decide if it was mandatory. We find little difference between these two types of analysis. In both instances, vve looked at the policy or proposal and dec.ided if it directly and unambiguously addressed a matter related to on-the-job safety for strikeprohibited public employees. If the proposal or policy did not, and its relevance to safety could only be determined by considering extrinsic evidence of the party's intent, we concluded that the subject of the proposal was not "safety" or a "safety issue."

Here, the Association proposal at issue neither expressly nor directly addresses safety; the connection between training and safety is not apparent from the proposal's language. Only by considering extrinsic evidence of the proposal's intent-testimony of corrections officers-can we find such a connection. The Association proposal is similar to others we found permissive because they did not directly address workplace safety. Polk County, 6 PECBR at 4641, Depmtment of C01rectio11s, 14 PECBR 832, and City of Roseburg, l 7 PECBR at 611. Accordingly, we conclude that the subject of the Association proposal is not a safety issue under subsection (7)(f). Having reached this conclusion, it is unnecessary to decide if the proposal fulfills the second criterion for a subject to be mandatory under this statutory provision, i.e., whether it impacts strike-prohibited employees' on-the-job safety.

Because the Association's proposal is not mandatory under subsection (7)(f), we next determine whether the subject of the proposal is expressly made mandato1y by another provision of the PECBA. We look first to ORS 243.650(7)(g) which, as discussed above, excludes "assignment of duties" from the definition of employment relations.

( ... continued) Thus, the various versions of SB 400 that were debated and discussed by the 2007

legislature indicate some attempt to change language concerning "safety issue" in subsection (7)(f). That did not occur, however, and legislators retained language in the prior version of subsection (7)(f) regarding "safety issues."

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We conclude without difficulty that the subject of the Association's proposal is assignment of duties. Although the proposal apparently allows the County to choose and schedule the training employees will receive, the proposal requires that the County remove bargaining unit members from their regular duties and assign them to another duty-training-for 40 hours per year. Accordingly, the proposal concerns assignment because it dictates the type of work management can require employees to perform. See Portland Fire Fighters' Association, Local 43, IAFF JJ. Ciry of Portland, Case No. UP-14-07, 23 PECBR 43, 71, recons 23 PECBR 165 (2009) appeal pending (assignment is the subject of an employer policy regarding work that disabled employees can be required to perform).

Because the Association's training proposal concerns a permissive subject for bargaining, the County did not violate ORS 272.650(l)(e) ·when it refused to bargain about it.

3. The Association bargained in bad faith in violation of ORS 243.672(2)(b) when it included a proposal for mandated hours of training in the final offer it submitted to the State Conciliator.

Under the PECBA dispute resolution process, parties that fail to settle their bargaining dispute in mediation and reach impasse must submit their final offers to the mediator. ORS 243.712(2)(b). A party violates its good faith bargaining duty if it includes a permissive subject in its final offer over the objections of the other party. ATU JJ. Rogue Vallry Transportation District, Case No. UP-80-95, 16 PECBR 559, 588, recons 16 PECBR 707 (1996).

As discussed above, the Association's training proposal is permissive. Accordingly, the Association violated its duty to bargain in good faith under ORS 243.672(2)(b) when it included this proposal, over the County's objections, in the final offer it submitted to the mediator (who was also the State Conciliator). As a remedy for this violation, we will order the Association to cease and desist from bargaining in bad faith by including the training proposal in its final offer.

II

II

II

II

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ORDER

The Association shall cease and desist from bargaining in bad faith by including its training proposal in its final offer.

, ,c1-0 SIGNED AND DATED this 2J_ day of June, 2011.

**Paul B. Gamson, Chair

iitZrr--Vickie Cowan, Board Member

/~OJ#ll fk};;, Susan Rossiter, Board Member


**Chair Gamson Dissenting:

This dispute arises out of collective bargaining between the County and the Association which represents the County's strike-prohibited corrections officers. The parties filed mirror image complaints. The Association's complaint alleges the County bargained in bad faith when it refused to discuss portions of the Association's proposal; the County's complaint alleges the Association bargained in bad faith when it insisted 011

discussing those portions of the proposal. The dispositive issue is whether the disputed portion of the proposal must be discussed because it is mandatory for bargaining, in which case the Association prevails, or need not be discussed because it is permissive for bargaining, in which case the County prevails. 1

1Bargaining proposals fall into one of three categories. Mandatory proposals are those over which bargaining is required if either party demands it; permissive proposals are those the parties are permitted to bargain if they both agree, but neither side can insist on bargaining over the other's objection; and prohibited proposals are those that would violate law or public policy.

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The Association made the following proposal:

"5. Training. The Sheriff will establish training requirements for Corrections Deputies and Corrections Sergeants. Beginning in the second year of this agreement all sworn deputies shall receiJle a minimum of forty ( 40) hours of apprOJJed training peryem~ of whicl1 at least twenty (20) hours shall be DPSST-appnwed training. The employee shall participate in training, including firearms training, at times set by the Sheriff or his designees. Employees participating in any required training during off-duty hours shall be compensated at the overtime rate for time spent in training, or may be permitted to flex hours with the approval of their supervisor." (Emphasis added; underlining removed.)

The County refuses to bargain over the second (italicized) sentence in the Association's proposal. It asserts the sentence concerns assignment of duties, a permissive subject under ORS 243.650(7)(g). The Association asserts its proposal is mandatory under ORS 243.650(7)(£), which provides that, in negotiations involving employees such as corrections officers who are prohibited from striking, it is mandatory to bargain over "safety issues that have an impact on the on-the-job safety of the employees * * *." The Association argues that the disputed sentence is mandatory becai,ise it has an impact on workplace safety.

The majority agrees with the County. It concludes the safety statute does not apply because the sentence at issue does not, on its face, address the "subject" of safety. I believe this conclusion is wrong because it misinterprets both the Association's proposal and the relevant statute.

First, the majority misinterprets the Association's proposal when it concludes the proposal does not, on its face, concern safety. To understand the proposal, we must begin with its words. Yogman v. PmTott, 325 Or 358, 937 P2d 1019 (1997). The sentence at issue refers to "DPS ST-approved training. "2 The proposal does not define this phrase, and it is not in the dictionary. The testimony reveals that it is a term of art in the law enforcement industry. When a term of art is used in a contract, and evidence in the

2DPSST is the acronym for Department of Public Safety Standards and Training, a state agency. The phrase "DPSST-approved training" is apparently a term of art so familiar to. the parties that they did.not bother to spell it out or otherwise define it.

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record shows its meaning, then the meaning of the term is a question of fact. Timberline Equip. v. St. Paul Fire and Nlar. Ins., 281Or639, 643, 576 P2d 1244 (1978).3

Here, Lt. Eric Smith testified. He is the training unit manager for the County and is in charge of training curriculum. He testified that Exh. C-5 contains a list of DPSST trainings. On pages 6-7, under the heading of "CORRECTIONS," the exhibit lists the following DPS ST trainings for corrections officers in 2011:

"Control & Modification of Inmate Behavior "Handling Aggressive Inmates "Prisoner Transport "HIV/AIDS Management "In-Custody Suicide Prevention "Inmate Classification "Inmate Discipline & Grievances "Inmate Management "Inmate Medical Care "Inmate Movement "Inmate Orientation - Rules & Regulations "Inmate Searches & Contraband Control "Inmates w/Personality Disorder-Supervising & Managing "Offender Management "Offender Risk Assessment "Positional Asphyxia "Prison Rape Elimination Act "Public Health Issues in Jails/Prisons "Sudden Custody Death "Working with Manipulative Inmates "Inmate/Offender Training - Other"

These courses so obviously involve officer safety that no argument is necessary to establish the point. The Association's proposal on its face requires at least 20 hours of

3It is often necessary to consult outside sources to determine what a contract provision means on its face. In Yogman Jl. Pmwtt, 325 Or 358, 362-63, 937 P2d 1019 (1997), for example, the Court referred to the dictionary to determine the meaning of contract language. Here, the phrase at issue is not in the dictiona1y, so we must refer to evidence in the record to determine its meaning. Timberline Equip. v. St. Paul Fire and Mar. Ins., 281 Or 639, 643, 576 P2d 1244 (1978).

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"DPSST-approved training." Once we properly define the phrase "DPSST-approved training," it becomes clear that the proposal does, on its face, concern safety issues.4

Further, the majority reaches its conclusion by reading the sentence at issue in isolation. It is true that only one sentence of the proposal is in dispute. That does not mean, however, that we should ignore everything else in the proposal. To the contrary, when we interpret a contract provision, we must consider it in the context of the document as a whole. Yogman v. Pmrott, 325 Or 358, 361, 937 P2d 1019 (1997).

Here, the sentence at issue establishes a requirement for 40 hours of training. The very next sentence in the proposal indicates that the required training "includ[ es] firearms training." Firearms training is clearly a safety issue, and the County does not contend otherwise. When read in context, the Association's proposal on its face addresses the safety issue of firearms training.

The majority thus derives its conclusion from the faulty premise that the disputed sentence does not, on its face, concern safety issues. When the proposal is read in context, and when the terms of art it uses are clarified, the proposal on its face involves safety issues.5

Second, in addition to misinterpreting the proposal, the majority also misinterprets the statute. The goal when interpreting a statute is to determine the intent of the legislature. The most persuasive indication of legislative intent is the language of the statute; the analysis must therefore begin by examining the text and context of the statutory language. State v. Gaines, 346 Or 160, 171, 206 P3d 1042 (2009).

4In addition, the parties have an understanding of what "training" means in this particular workplace. Exh. C-4 consists of an 80-page list of courses taken over the years by individual bargaining unit members. It lists thousands of courses taken by bargaining unit members. Nearly all of the training relates directly to safety. Similarly, Exh. C-7 lists the 26 hours of training the County requires of all its corrections officers in 2011. Some of the course descriptions use acronyms or abbreviations that are not explained in the record. Of the remaining courses, most involve safety: "Legal Updates," "Comm Skills," "Defensive Tactics," "Report Writing," "Use of Force," and "Taser Recert." Thus, based on a consistent practice over the years, these parties understand that training for corrections officers predominantly involves safety issues.

5The majority relies on cases that do not apply here because, unlike the proposal here, they involve proposals that do not address safety issues on their face.

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The majority largely ignores the statutory language of ORS 243.650(7)(f) and instead carefully analyzes whether the "subject" of the Association's proposal is safety. The problem is that subsection (7)(f) nowhere uses the term "subject." Rather, the subsection applies to "safety issues that have an impact on the on-the-job safety of the employees * * *." ORS 243.650(7)(£). The legislature's choice of vvords is significant. Other portions of the statute specifically refer to the "subject" of a proposal,6 but the legislature omitted any reference to "subject" in subsection (7)(f). The legislature's use of a term in one section of a statute but not in another indicates a purposeful omission. PGE v. Bureau of Labor and Industries, 317 Or 606, 611, 859 P2d 1143 (1993). Applying that principle here, I conclude that the legislature did not intend subsection (7) to apply only when the "subject" of a proposal is safety. By its text, it also applies to "safety issues" that have "an impact on" workplace safety. As discussed above, "DPSSTapproved training" has an impact on officer safety.

A similar but related principle is that we may not insert words into a statute that the legislature omitted. ORS 17 4.010 ("In the construction of a statute, the office of the judge is simply to ascertain and declare what is, in terms or in substance, contained therein, not to insert what has been omitted, or to omit what has been inserted."). The majority ignores this cardinal n1le of statutory interpretation. It inserts the word "subject" into ORS 243.650(7)(£), even though, under the rule established in PGE, we must presume the legislature purposely omitted the word. Thus, when the majority asks whether the Association's proposal concerns the "subject" of safety, it asks the wrong question, and consequently arrives at the wrong answer.

What, then, does the statute require? We begin with its words. Words of common usage are to be given their plain, natural, and ordinary meaning. PGE v. Bureau of Labor and Industries, 31 7 Or at 611. The courts typically refer to a dictionary to determine such meaning. State v. Ausmus, 336 Or 493, 504, 85 P3d 864 (2004).

ORS 243.650(7)(£) makes it mandatory to bargain over "safety issues that have an impact on the on-the-job safety of the employees * * *."As pertinent here, the dictionary defines "issue" as "a matter that is in dispute between two or more parties or that is disputed by the parties : a point of debate or controversy." Webster's Third New Int'/ Dictionmy 1201 (unabridged ed 2002). "Impact" means "a concentrated force producing change : an esp. forceful effect checking or forcing change : an impelling or

'The word "subject" appears at least eight different times in ORS 243.650, three times in section (4) and five times in section (7). But the subsection at issue-ORS 243.650(7)(£)-does not use the word "subject."

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compelling effect." Id. at 1131. 7 The statute thus makes mandatory for bargaining a dispute or controversy over safety that has a forceful effect in producing change in workplace safety. The proposal at issue here fits this definition. As discussed at length above, the proposal concerns a dispute between the County and the Association over the amount of training needed to enhance (i.e., produce a positive change in) on-the-job safety for corrections officers. As such, it is mandatory for bargaining.8

The legislative history confirms a broad reading of the statute. "In general, an examination of legislative histo1y is most useful when it is able to uncover the manifest general legislative intent behind an enactment." State v. Gaines, 346 Or at 172-173 n 9. When the legislature amended the statute in 2007, it iritended to expand the scope of safety issues that are mandatory for bargaining.

The current statutory language is the result of SB 400 (Oregon Laws 2007, chapter 141, section 1.) Senator Prozanski sponsored the bill and carried it on the Senate floor. See O'Donnell-Lamont and Lamont, 337 Or 86, 105 n 9, 91 P3d 721 (2004), cert den 125 S Ct 867 (2005) (the court based its conclusion about legislative intent on a statement by the representative who sponsored the legislation); Crooked River Ranch Water Company v. PUC, 224 Or App 485, 492, 198 P3d 967 (2008) (the court based its conclusion about legislative intent on statements made by the senator who carried the

7The impact of the Association's proposal on workplace safety need not be substantial. ORS 243.657(7)(f) applies only to strike-prohibited employees and requires "an impact on the on-the-job safety of the employees." (Emphasis added.) By contrast, ORS 243 .650(7)(g) applies to employees who are permitted to strike. It requires a "direct and substantial effect on the on-thejob safety of public employees." (Emphasis added.) The legislature chose not to repeat the phrase "direct and substantial" in the portion of the statute involving strike-prohibited employees such as the corrections officers here. The legislature's use of a term in one section of a statute but not in another indicates a purposeful omission. PGE v. Bureau of Labor 1111d Industries, 317 Or 606, 611, 859 P2d 1143 (1993). Thus, to be mandatory, the Association's proposal must have "an impact" on workplace safety, but it need not be a "direct and substantial" one.

8The majority's position invites gamesmanship in drafting proposals. Its analysis requires that the "subject" of safety be apparent on the face of the proposal. The Association could easily meet this standard by simply adding the words of the statute to its proposal. For example, the Association could redraft its proposal to require that" all sworn deputies shall receive a minimum of forty ( 40) hours of approved training per year, of which at least twenty (20) hours shall be DPSST-approved training, on safety issues that have an impact on the on-the-job safety of the employees."

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bill on the senate floor). As recited in more detail by the majority, Senators Prozanski and Devlin engaged in a colloquy on the Senate floor in which they enumerated various ways that safety proposals deemed permissive under the prior law would become mandatory under the bill. This generally demonstrates the legislative intent to expand the scope of safety issues that are mandatory for bargaining. Given this intent, the majority's reliance on safety cases decided before the statute was amended provides little support for its conclusion.

In addition, the Senators gave one example that is directly relevant here. They discussed whether mental health training for a corrections officer was mandatory under then-current law. They said it was not, and cited that as· a demonstration of the need to make more safety issues mandatory. The proposal at issue here would require the County to provide at least 20 hours of "DPSST-approved training." As discussed in detail above, part of the DPS ST training includes "In-Custody Suicide Prevention" and "Inmates w/Personality Disorder-Supervising & Managing." As demonstrated by the legislative history, this is precisely the type of mental health training for corrections officers the law was intended to convert from permissive to mandatory. The majority errs in concluding othenvise.

The majority ultimately concludes "without difficulty" but with little explanation that the Association's proposal is really about "assignment of duties," a permissive subject under ORS 243.650(7)(g). I disagree. The mere fact that a proposal may have some impact on assignment of duties does not make it permissive for bargaining. A proposal for vacation time is mandatory even though it entirely eliminates the employer's ability to assign duties to an employee on vacation.9 The same is true of proposals for sick leave, 10 duty-free breaks and meal periods, 11 and leave to conduct

9P01tla11d Fire Fighters Assoc. v. Ciry of Portland, 305 Or 27 5, 282, 751 P2d 770 ( 1988) (a vacation proposal is mandatory regardless of the impacts it may have on other non-mandatory subjects).

100RS 243.650(7)(a) (sick leave is mandato1y for bargaining).

"ExecutiJ1e Department v. Oregon State Police Officers' Association, Case No. UP-11-85, 8 PECBR 7874, 7890-91 (1985) (proposals for paid duty-free breaks and lunch periods are mandatory despite the employer's concern that the proposals infringe on its right to assign work).

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union business such as collective bargaining or grievance processing. 12 All significantly interfere with an employer's ability to assign duties, yet all are mandatory.

An issue that arises with teachers seems analogous to the Association's training proposal at issue here. We have frequently held proposals to be mandatory that guarantee teachers a specified amount of time during each workday to prepare for class. E.g., i\1.cKenzie Education Association/Lane Unified Bargaining Council v. i\1.cKeuzie School District 68, Case No. UP-81-94, 16 PECBR 156, 163 (1995); Sp1fogfteld 'Education Association v. Springfield School District 19, Case No. C-278, 1 PECBR 347, 362 ( 1975). Such proposals obviously interfere with the employer's ability to assign duties during the preparation time, but the proposals are nonetheless mandatory. As far as interfering with the right to assign duties, I see no principled distinction between setting aside time during the workday so teachers can prepare to teach their classes, and setting aside time during the workday so corrections officers can receive training that prepares them to perform their duties safely. 13 The Association's training proposal does not predominantly concern assignment of duties any more than the teachers' preparation time proposal. Both are mandatory even though they have an impact on the employer's ability to assign duties.

This case is important because it presents our first opportunity to interpret and apply SB 400. But it is also important because it involves human consequences. Corrections officers work in a dangerous environment. The inmates they supervise are incarcerated and many are angry about it. Many inmates are in jail because they committed violent acts. Some inmates are substance abusers or addicts, and some are mentally ill. Others have communicable diseases such as hepatitis or HIV/AIDS. Each of these circumstances poses a threat to officer safety.

The link between training and safety is undisputed. Every witness who testified agreed that some amount of training is required for officer safety. The dispute here is over how much. That is not for this Board to decide. We decide only if the proposal is

12Euge11e Education Association 11. Eugene School Dist1ict 4] and 1\1iller, Case No. C-93-79, 5 PECBR 3004, 3007-08 (1980) (a proposal regarding paid release time for bargaining unit members to participate in negotiations or process grievances is mandatory).

13If anything, the Association's proposal places fewer restrictions on the ability to assign duties than a proposal that guarantees teachers preparation time during the workday. The Association's proposal would allow the County to assign training outside of the normal workday (albeit by providing overtime pay or flex hours). If the County chooses this option, the Association's training proposal would not interfere at all with the County's ability to assign duties during the regular workday.

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mandatory for bargaining. It is then up to the parties to negotiate over the amount, just as they negotiate over the amount of vacation time or wages. 14

The legislature clearly intended to provide public safety personnel the right to require bargaining over safety issues in the workplace such as the training proposal here. One of the underlying purposes of the PECBA is to "safeguard[] employees and the public from injury." ORS 243.656(3). It would further this purpose to allow corrections officers to bargain over the type of training issues in dispute here so they can safely do their job of keeping the public safe.

I believe the majority's disposition misinterprets both the Association's proposal and the relevant statute. In my view, the Association's proposal is mandatory for bargaining under ORS 243.650(7)(f). As a result, the County's refusal to discuss the proposal in bargaining is unlawful. I respectfully dissent from my colleagues' conclusion to the contrary.

Paul B. Gamson

14The majority's Finding of Fact 19 is a red herring. It says that the "corrections officers do not need an additional 40 hours of annual training to perform their jobs competently and safely." At best, it means the County is voluntari/y providing enough training to keep the employees safe. Even if that were true, the Association is entitled to bargain to require training so the County cannot reduce or eliminate it. The finding is also curious because of the word "additional." The Association's proposal is for 40 hours of training, not 40 hours in addition to something else (the majority does not say what .it is in addition to). Finally, the finding is unclear. If 40 hours of "additional" training is not necessary to officer safety, then is some other amount necessary? Is 39 hours, 38 hours, or some other number of training hours necessary to officer safety? The majority does not say. Oregon Jail Standards, published by the Oregon State Sheriff's Association, recommends that corrections deputies receive at least 40 hours of training hours a year. (Exh. U-3 at 15.) The point is that once safety training is established as a mandat01y subject, it is then up to the parties to bargain over the amount.

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OF THE

STATE OF OREGON

Case No. DC-012-11

(PETITION FOR DECERTIFICATION OF REPRESENTATIVE)

JANICE L. STRAIGHT on behalf of the EMPLOYEES OF THE CARLTON POLICE DEPARTMENT,

Petitioner,

v.

YAMHILL CARLTON EMPLOYEE ASSOCIATION,

Respondent.

) ) ) ) ) ) ) ) ) ) ) )

~~~~~~~~~~~~~~-)

ORDER DISMISSING PETITION

On April 21, 2011,1 Janice L. Straight (Petitioner) filed a decertification petition on behalf of the employees of the Carlton Police Department (Department). The petition asserts that Yamhill Carlton Employee Association (Association) no longer represents a majority of employees in the bargaining unit. ORS 243.682(1)(b)(D). The petition is supported by a showing of interest signed by two bargaining unit members. Petitioner represents that there are four members in the bargaining unit. She further represents that the most recent collective bargaining agreement between the Department and the Association is in effect from July 1, 2009 to June 30, 2011.

The Asso~iation is the exclusive representative of a bargaining unit of Department employees. The agreement describes the unit as:

"* * * [A]ll regular sworn employees of the Carlton Police Department, excluding casual and temporary employees, supervisory, and confidential employees." ·

'All dates are 2011 unless otherwise specified.

The Elections Coordinator asked petitioner for a showing of interest and the name of the employer's representative, and then served the_ petition on the Department and the Association on May 25. The Department certified that, on May 26, it posted the required Board notices entitled "Decertification Election Has Been Requested." OAR 115-025-0030(1).

The Association had until May 13 to file objections to the petition. On May 11, the Association's representative wrote to the Elections Coordinator claiming that the petition contains a serious error. The Association's representative clarified that the Yamhill Carlton Employee Association represents two separate bargaining units, one for the Police in the City of Yamhill and another for the Police in the City of Carlton. The bargaining unit at issue here-the Police in the City of Carlton-contains only two employees, not four as asserted in the petition. The Association's representative also disclaimed further interest in representing the City of Carlton Police Department bargaining unit that is the subject of this petition.

DISCUSSION

ORS 243.682( 1 )(b )(D) permits a public employee or a group of public employees to petition for decertification if at least 30 percent of the employees in the bargaining unit "assert that the designated exclusive representative is no longer the representative of the majority of the employees in the unit." See also OAR 115-025-0000(l)(d). When a valid petition has been filed without objection and a question of representation exists, this Board orders an election under the procedures set forth in OAR 115-025-0060.

Here, however, the Association has disclaimed interest in the bargaining unit. OAR 115-025-0060(3) provides that "[a] labor organization may request in writing to have its name removed from the ballot disclaiming any representation interest for the employees in the unit." Accordingly, the petition does not raise a question of representation.

An election gives employees the option to vote for a union or for no representation. ORS 243.686; OAR 115-025-0060(4). Because the Association has disclaimed interest, it will not appear on the election ballot. This would leave "No Representation" as the only choice remaining on the ballot. The Association's disclaimer of interest thus renders the petition to decertify the Association moot. Because there is no longer a question regarding representation of Department employees, this petition must be dismissed. See ORS 243.682(1) and (4) (requiring an election only if there is a question of representation); Coon and Empll!J'ees of the Ci0J of Halfway v. Cmpenters

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Industrial Council Local Union No. 1017, ERB Case No. DC-021-09, 23 PECBR 310 (2009); Clm* and Emplqyees of Cuny Geueral Hospital v. Oregon Nurses Associatio11, ERB Case No. DC-57-97, 17 PECBR 491 (1998); Henderson a11d Emplqyes of Oakridge Police Department v. Teamsters Local 223, ERB Case No. C-220-83, 7 PECBR 6093 (1983).

ORDER

The petition for decertification is dismissed.

DATED this J!L day of July 2011.

Paul B. amson, Chair

.~a(6~~-Vickie Cowan, Board Member



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OF THE

STATE OF OREGON

Case No. UP-24-08


MARION COUNTY LAW ENFORCEMENT ASSOCIATION,

Complainant,

v.

MARION COUNTY,

Respondent.

) ) ) ) ) ) ) ) ) )

~~~~~~~~~~~~~-)

COMPLIANCE ORDER

On March 29, 2010, this Board held that Marion County (County) violated ORS 243.672(l)(g) when it refused to comply with an arbitrator's order to reinstate a discharged employee with back pay, minus a one-month unpaid suspension. 23 PECBR 671. As pertinent here, we ordered the County to comply with the arbitrator's award and to make the grievant whole for her losses, including "back pay and benefits, minus interim earnings* * * ." 23 PECBR at 703.

The parties have resolved all of the remedy issues except two. The Marion County Law Enforcement Association (Association) asks this Board to compel the County to comply with the Board's Order on the two remaining issues. The County asserts it has fully complied. The parties submitted documents, affidavits and briefs in support of their positions.

The issues are:

1. Does the County owe back pay after July 2009 when the grievant refused the County's offer to reinstate her?

2. How much back pay does the County owe the grievant for the overtime hours she would have worked if she had not been wrongfully discharged by the County?

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FACTS 1

Reinstatement

1. On September 27, 2007, the County discharged Kristine Phillips from her position as a Deputy Sheriff in the Marion County Sheriff's Department work center. At the time of her discharge, Phillips had worked for the Sheriff's office for approximately 15 years, most of it at the jail. Phillips began worldng at the work center in 2005.

2. The Association filed a timely grievance over Phillips' discharge. On June 9, 2008, an arbitrator concluded that the County violated the parties' collective bargaining agreement when it discharged Phillips without just cause. The arbitrator ordered the County to reinstate Phillips ·with back pay and benefits, minus a 30-day suspension without pay.

3. On June 10, 2008, Sheriff's Department Commander Holland met with Phillips, Phillips' significant other, and Association representatives to discuss arrangements for Phillips' return to work. Holland indicated the County would reinstate Phillips and directed her to enroll in the County's employee benefit programs.

4. After meeting with Holland, Phillips quit her full-time job as a casino security guard and also quit an additional part-time position.

5. On June 27, 2008, the County informed the Association that it would not reinstate Phillips or otherwise comply with the arbitrator's award.

6. On July 2, 2008, the Association filed an unfair labor practice complaint alleging that the County violated ORS 243.672(l)(g) by refusing to implement the arbitrator's award reinstating Phillips.

7. On September 17, 2008, Administrative Law Judge (ALJ) B. Carlton Grew held a hearing on the Association's unfair labor practice complaint. On January 26, 2009, the ALJ issued his Recommended Order in which he concluded that the County violated ORS 243.672(l)(g) when it refused to comply with the arbitrator's award reinstating Phillips. The ALJ ordered the County to cease and desist from refusing to comply with the arbitrator's award, to reinstate Phillips to her former position as soon as practicable, and "to make Phillips whole for any loss or injury she

'We take the facts from the underlying order and from the affidavits and documents the parties submitted in connection with the compliance issues raised in this petition.

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suffered due to the County's failure to promptly implement the arbitration award, with the goal of placing Phillips in the same position she would have occupied had the County promptly complied with the award."

8. Both parties objected to the Recommended Order. On April 29, 2009, this Board heard oral argument on these objections.

9. In November 2008, Phillips obtained a full-time position with the City of Salem. The record does not indicate Phillips' salary or benefits for this job.

10. Phillips filed an action against the County in federal court. On June 30, 2009, Phillips, her attorney, and the County's attorney participated in a mediation session.2

11. By letter dated July l, 2009, County Sheriff Russ Isham notified Phillips that the County would reinstate her to a position as a Deputy Sheriff.

12. On July 6, 2009, Phillips received a letter from Isham outlining her 30-day suspension, and directing her to submit to a psychological examination, attend four classes at the Department of Public Safety Standards and Training (DPSST), qualify on the range, and verify that she possessed current DPSST certification.

13. After receiving Isham's letter, Phillips resigned from her full-time job with the City of Salem.

14. On July 15, 2009, Phillips spoke by phone with County Undersheriff Jason Myers about her return to work. During this conversation, Phillips confirmed her understanding that the County would not withdraw its appeal to this Board or provide back pay until this Board issued its Order. By e-mails dated July 16, 2009, the County's attorney told Phillips' attorney that the County would not pay Phillips back pay or drop its appeal to this Board.

15. Phillips did not return toworkforthe County because it refused to give her back pay and refused to withdraw its appeal to this Board. On July 23, 2009, Phillips withdrew her resignation from the City of Salem and continued working there.

16. On March 29, 2010, this Board issued a final Order in which it held that the County violated ORS 243.672(l)(g) by refusing to comply with the

2The parties disagree on whether they partially settled the court case during mediation. We do not need to resolve this disagreement in order to decide the issues before us.

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arbitrator's award reinstating Phillips. This Board ordered the County to cease and desist from refusing to comply with the arbitrator's award; to reinstate Phillips to the same position she would have occupied had the County promptly complied with the arbitration award, with back pay and benefits as ordered by the arbitrator; and to "make Phillips whole for any loss or injury she suffered due to the County's failure to promptly implement the arbitration award, including back pay and benefits, minus interim earnings, with interest at 9 percent per annum, from the date of the arbitration award until the County reinstates Phillips to her former position."

17. The County reinstated Phillips in April 2010.

18. The County calculated back pay for Phillips until July 2009. It refuses to provide back pay after that time because Phillips rejected the County's offer to reinstate her in July 2009.

Back Pay for Overtime

19. From the 2004 through 2007, Phillips worked the following number of overtime hours:

2004-726 hours of overtime 2005-573.85 hours of overtime 2006-516 hours of overtime 2007-251 hours of overtime worked in 6 months.

TOTAL: 2,066.85 hours of overtime worked in 42 months

20. In calculating the amount of back pay owed Phillips for overtime opportunities lost during the period from September 27, 2007 through June 2009, the County examined the actual amount of overtime Phillips earned during the one-year period prior to her discharge. Phillips earned $20,17 4. 72 in overtime during the year preceding her discharge. The County averaged her overtime earnings over pay periods and then adjusted the average earnings vvith proportionate increases for wage rate changes.

21. From 2007 through 2009, County Sheriff's deputies in the work center worked the follovving overtime hours:

Total annual overtime hours:

Average overtime hours:

3620

453

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3349 1503

419 251

CONCLUSIONS OF LAW

1. The County must provide Phillips with back pay and benefits, minus interim earnings, from July 2009 until it reinstated her in April 2010.

ORS 243.676(2)(c) specifically authorizes this Board to award back pay to a party harmed by an unfair labor practice. Our goal in awarding back pay is to restore injured parties to the economic position they would have attained if they had not been unlawfully fired. See Central Educatio11Associatio11 and Vilches v. Central School District 13/, Case No. UP-74-95, 17 PECBR 93, 94 (1997) (Order on Reconsideration), affd 155 Or App 92, 962 P2d 763 (1998).

We begin the back pay calculation with the amount the employee would have earned if the employer had not fired the employee. We then consider mitigation. An injured party is required to seek interim employment to mitigate back pay damages. AFSCME Local 189 v. City of P01tla11d, Bureau of Water Works, Case No. UP-1-05, 21 PECBR 542, 543 (2006) (Order on Reconsideration of Remedy); Lebanon Association of Classified Emplqyees v. Lebano11 Community School Dist1ict, Case No. UP-33-04, 21 PECBR 533, 535-36 (2006) (Supplemental Order).3 Back pay is the amount the employee would have earned if not for the unlawful firing, minus the amount the employee actually earned from interim employment. Central· Education Association, 17 PECBR at 800 n 8 (quoting NLRB Casehandling Manual, Section 10530 ( 1977)).

An employer can raise an affirmative defense that back pay should be reduced because the employee suffered a willful loss of earnings by failing to make reasonable efforts to obtain interim employment. Millennium Maint. & Blee. Contr., Inc., 344 NLRB 516, 517 (2005). An employer has the burden of proving the defense. Id.; OAR 115-035-0042 ( 6) (a respondent has the burden of proving an affirmative defense).

'The rule requiring a party injured by an unfair labor practice to seek interim employment has been accepted for at least 70 years. Phelps Dodge Co1p. v. NLRB, 313 US 177 (1941). The purpose of the rule is "not so much the minimization of damages as the healthy policy of promoting production and employment." Id. at 200.

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We apply those principles here. Phillips obtained interim employment with the City of Salem. Although the record is unclear on this point, Phillips apparently earned less with the City than she would have with the County.4 As a result, her back pay is the difference between what she would have earned with the County and what she actually earned with the City.

The County does not dispute that this calculation applies until July 2009. At that time, it offered to reinstate Phillips. Phillips rejected the County's offer. The County asserts that Phillips' back pay should end when she rejected the County's offer because Phillips willfully lost earnings-she chose to retain the lower-paying job with the City and thereby unnecessarily continued the accrual of damages. In some circumstances, rejection of a valid offer of interim employment may constitute a willful loss of earnings sufficient to toll the back pay period. Oil, Chem. & Atomic W01*ers Union v. NLRB, 547 F2d 598 (178 U.S. App. D.C. 301, 1976). The County has the burden to prove this affirmative defense.

The Association responds that Phillips acted reasonably under the circumstances. We agree. At the time it offered to reinstate Phillips, the County was still pursuing its objections before this Board. In those objections, the County asked us to overturn the arbitrator's reinstatement order and uphold its decision to fire Phillips. Under the County's theory, Phillips would be required to give up her regular employment with the City and accept reinstatement with the County, even though the County was fighting for the right to fire her again. In other words, if Phillips accepted the County's offer of reinstatement, she could again be without a job in the near future. 5

The Association also notes that on an earlier occasion, shortly after the arbitrator issued the award, the County offered to reinstate Phillips. Phillips quit her interim employment, but the County then changed its mind and rescinded its reinstatement offer. As a result, Phillips was without a job. The Association asserts that Phillips was not required to take such a chance again.

4If Phillips earned as much as or more with the City than she would have with the County, this proceeding would be unnecessary. Her City earnings would completely offset the County's back pay obligation. The only reason this dispute would be before us is if Phillips earned less with the City and there was a possibility that the County would need to make up the difference in salary.

'Although we ultimately upheld the arbitrator's award, we did not issue the Order until several months after the County offered to reinstate Phillips. We judge the reasonableness of Phillips' decision to turn down the reinstatement offer based on the circumstances that existed at the time she made the decision. At that time, the County was fighting for the right to fire her.

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A reinstatement offer must be unconditional in order to toll back pay. Midwestem Pers. Svcs., Inc. v. Chaujjers, Teamsters and Helpers Local Union No. 215, 346 NLRB 624 (2006), e11fd 508 F3d 314 (7'h Cir 2007). Only a "clearly unjustifiable refusal to take desirable new employment" will toll the back pay. Phelps Dodge C01p., 313 US at 199-200.

We conclude that Phillips acted reasonably and justifiably under the circumstances when she chose to reject the County's conditional offer of reinstatement and instead retain her interim employment with the City. As noted, the purpose of the mitigation requirement is to promote "production and employment." Phelps Dodge C01p. v. NLRB, 313 US at 200. Phillips has been industrious in finding interim employment. The purposes underlying the mitigation requirement are best furthered by allowing Phillips to remain with the City rather than requiring her to face immediate unemployment if the County again rescinded its reinstatement offer, or unemployment soon thereafter if the County prevailed in its arguments before this Board to overturn the arbitrator's award and uphold its dismissal of Phillips.

The County will provide Phillips with back pay and benefits, plus interest, for the period from July 2009 until April 2010 when it reinstated her. The back pay is calculated as the difference between what she would have earned if she had remained employed by the County and what she actually earned through her employment with the City.

2. The back pay award includes overtime hours Phillips would have worked if she had not been unlawfully fired, to be calculated based on the average amount of overtime Phillips worked in the 12 months prior to her discharge.

The parties agree that Phillips would have worked overtime hours if she had not been discharged, and that to make her whole, she is entitled to back pay for those lost overtime hours. The parties disagree, however, on the proper way to estimate the number of overtime hours Phillips would have worked.

The parties cite no statute or Board cases addressing this issue. In such circumstances, we often seek guidance from the NLRB Casehandling Manual. See Central Education Association, 17 PECBR at 800 n 8 (relying on NLRB Casehandling Manual); see generally, Elvin v. Oregon Public Employees Union, 313 Or 165, 175 and n 7, 832 P2d 36 ( 1992) (the National Labor Relations Act is similar in structure, language and purpose to the PECBA, and decisions of the NLRB offer guidance in interpreting the PECBA.)

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The NLRB Caseltandling Manual, Section 10540.1 6 provides three different methods to calculate how many hours an employee would have worked if the employee had not been unlawfully discharged, with instructions to choose the method that best fits the circumstances. We do not need to decide which method best fits here because the parties agree that the appropriate method is to look at the average amount of overtime Phillips worked in a representative period before the County unlawfully fired her.7 The dispute is over the length of the representative period we should consider.

The Association asserts we should use the monthly average over the 3 1h years before the termination. It argues that looking at this longer period gives less effect to temporary fluctuations in overtime hours and provides a truer picture.

The County asserts that we should look at the year prior to the discharge. It notes that the longer period sought by the Association is unrealistic because the amount of overtime has trended down in recent years, due in part to operational changes designed to reduce overtime. The County argues that looking at this shorter period gives a better indication of the overtime hours Phillips most likely would have worked. We agree.

The amount of overtime Phillips worked went down in each of the four years before she was fired, and there is nothing in this record to indicate it would go back up. The Association would have us go back as far as 2004 when Phillips worked 726 hours of overtime. This is at least 150 hours more overtime than Phillips worked in any subsequent year. In addition, Phillips was assigned to work in the jail in 2004, but she had been assigned to the work center for at least two years before she was fired. Nothing in this record indicates that the number of overtime hours Phillips worked in the jail in 2004 would help us predict the number of overtime hours she likely would have worked from 2007 to 2010 in the work center.

For these reasons, we conclude that looking back to the 12 months prior to Phillips' discharge provides a better estimate of the overtime hours Phillips would have worked than the formula suggested by the Association. For the period from

'Published at http://www.nlrb.gov/sites/default/documents/44/compliancemanual.pdf (last visited on July 29, 2011).

'In addition to the average hours the employee worked before the firing, the other two methods are based on the hours worked by comparable employees, or the hours worked by replacement employees. The County asserts that it chose the method which produced the most generous results for Phillips. According to the County's calculations, Phillips would receive less under either of the other two methods.

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September 27, 2007 until July 2009, the County has already provided Phillips back pay for lost overtime based on the appropriate formula. The County will provide Phillips back pay for lost overtime for the period from July 2009 until the date it reinstated her in April 2010.

ORDER

Within 30 days of the date of this Order, the County will provide Phillips with back pay and benefits that include the period from July 2009 to April 2010. Back pay is the difference between what Phillips would have earned with the County and what she actually earned from interim employment. Back pay for lost overtime vvill be based on the average amount of overtime Phillips worked during the 12 months before the County fired her. The County will pay interest at the rate of 9 percent per annum from the date the payments were due until they are paid.

DATED this J_ day of August 2011.

~~ Vickie Cowan, Board Member



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OF THE

STATE OF OREGON

Case No. UP-32-07


GRESHAM-BARLOW EDUCATION ) ASSOCIATION/OEA/NEA, )

Complainant,

v.

GRESHAM-BARLOW SCHOOL DISTRICT No. lOJ,

Respondent.

) ) ) ) ) ) ) ) )

~~~~~~~~~~~~~-)

FINDINGS AND ORDER ON COMPLAINANT'S PETITION FOR ATTORNEY FEES ON APPEAL

On June 4, 2009, this Board issued an Order which held that Gresham-Barlow School District (District) violated ORS 243.672(l)(a) when it involuntarily transferred two bargaining unit members to other schools. 23 PECBR 170. The Gresham-Barlow EducationAssociation (Association) petitioned for reconsideration, and on June 30, 2009, we issued an Order which adhered to our original decision but made a slight modification to the remedy. 23 PECBR 219. The District appealed. The Court of Appeals affirmed our decision without an opinion. 241 Or App 352. The court issued its Appellate Judgment on May 12, 2011.

On May 24, 2011, the Association filed this petition for attorney fees on appeal. The District did not object or otherwise respond to the petition. See OAR 115-035-0057(1) and 115-035-0055(3) (an opposing party has 21 days to object to a petition for attorney fees on appeal). 1

1The Association also petitioned separately for representation costs for work performed before this Board. ORS 243.676(2)(d); OAR 115-035-0055. We address that petition in a separate Order issued on this date.

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Pursuant to OAR 115-035-0057, this Board makes the following findings:

1. The Association filed a timely petition for attorney fees on appeal. The District did not object to the petition.

2. The Appellate Judgment names the Association as the prevailing party.

3. The Association incurred $8,134 in attorney fees on appeal. According to the affidavit of counsel, this amount is based on 55.3 hours of attorney time billed at rates ranging from $130 to $150 per hour.

The requested hourly rate is below average. See Dallas Police Empli[yees Association v. City of Dallas, Case No. UP-33-08, 23 PECBR 510 (2010) (Rep. Cost Order) (the average rate for representation costs is $165-170 per hour). The number of hours devoted to this appeal is above the average. We reviewed the 18 attorney fees awards we issued since 1997. The petitioning parties spent an average of 35 hours on an appeal. We will consider these factors in determining the Association's reasonable attorney fees.

4. The District involuntarily transferred two teachers to positions in other schools. Both teachers were active in the Association and were outspoken in challenging a school improvement plan. The Association alleged the teachers were transferred because of their protected Association activities. We concluded the District had a mixed motive for the transfers, that is, it transferred the teachers for both lawful reasons and for unlawful ones (i.e., their protected union activity). We determined that the unlawful considerations played a small role in the transfer and that the District ·would have transferred these teachers even if they had not engaged in protected activity. We therefore concluded the District did not violate the "because of" portion of ORS 243.672(l)(a).

We further concluded, however, that the District violated the "in the exercise" portion of subsection (l)(a). The transferred teachers, as well as other members of the bargaining unit, correctly perceived that the District considered protected union activities in its decision to transfer the teachers. The natural and probable effect of the District's actions would be to restrain employees from engaging in protected activities for fear of unwanted consequences. The District's appeal focused on our conclusion that it violated the "in the exercise" portion of subsection (l)(a). As noted, the Court of Appeals summarily rejected the appeal without an opinion.

5. When an employer violates subsection (l)(a), we typically make a larger than average award because the employer's conduct strikes at core PECBA rights. See Leba11011 Educatio11Associatio11 v. Leba11011 Commu11ity School District, Case No. UP-4-06, 22 PECBR 623, 625 (2008) (Rep. Cost Order). We vvill do so here.

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After considering the purposes and policies of the PECBA, our awards in prior cases, and the reasonable cost of services rendered, this Board awards the Association attorney fees on appeal in the amount of $2,500.

ORDER

The District will remit $2,500 to the Association within 30 days of the date of this Order.

DATED this ___S_ day of August 2011.

P ul B!

dtuiwfr~~ Vickie Cowan, Board Member



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OF THE

STATE OF OREGON

Case No. UP-32-07


GRESHAM-BARLOW EDUCATION ASSOCIATION/OEA/NEA,

Complainant,

v.

GRESHAM-BARLOW SCHOOL DISTRICT No. lOJ,

Respondent.

) ) ) ) ) ) ) ) ) ) )

~~~~~~~~~~~~~~-)

FINDINGS AND ORDER ON COMPLAINANT'S PETITION FOR REPRESENTATION COSTS

On June 4, 2009, this Board issued an Order which held that Gresham-Barlow School District (District) violated 0 RS 243. 6 72 ( l) (a) when it involuntarily transferred two bargaining unit members to other schools. 23 PECBR 170. The Gresham-Barlow Education Association (Association) petitioned for reconsideration, and on June 30, 2009, we issued an Order which adhered to our original decision but made a slight modification to the remedy. 23 PECBR 219. The Court of Appeals affirmed our decision without an opinion. 241 Or App 352.

On June 25, 2009, the Association filed this petition for representation costs. The District did not object or otherwise respond to the petition. See OAR 115-035-0055(3) (an opposing party has 21 days to object to a petition for representation costs). 1

'We followed our normal procedure and held this petition in abeyance until the appeal was complete. OAR 115-035-0055(5). The Court of Appeals issued its Appellate Judgment on May 12, 2011. The Association also petitioned separately for attorney fees on appeal. ORS 243.676(2)(e); OAR 115-035-0057. We address that petition in a separate Order issued on this date.

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Pursuant to OAR 115-035-0055, this Board makes the following findings:

1. The Association filed a timely petition for representation costs. The District did not object to the petition.

2. The Association is the prevailing party.

3. The Association incurred $22,730.50 in representation costs in pursuing this complaint. According to the affidavit of counsel, this consists of 161.05 hours of attorney time billed at $140 and $145 per hour.

The hearing took three days. The number of hours devoted to this case is slightly above the average in similar cases. See Blue Mountain Faculty Association v. Blue Mountain Community College, Case No. UP-22-05, 21 PECBR 853 (2007) (Rep. Cost Order) (cases typically take an average of 45-50 hours for each day of hearing). The hourly rate is somewhat below the average. See Dallas Police Emplqyees Association v. City of Dallas, Case No. UP-33-08, 23 PECBR 510 (2010) (Rep. Cost Order) (the average rate for representation costs is $165-170 per hour). We will consider these factors in determining the Association's reasonable representation costs.

4. The District involuntarily transferred two teachers to positions in other schools. Both teachers were active in the Association and were outspoken in challenging a school improvement plan. The Association alleged the teachers ·were transferred because of their protected Association activities. We concluded the District had a mixed motive for the transfers, that is, it transferred the teachers for both lawful reasons and for unlawful ones (i.e., their protected union activity). We determined that the unlawful considerations played a small role in the transfer and that the District would have transferred these teachers even if they had not engaged in protected activity. We therefore concluded the District did not violate the "because of" portion of ORS 243.672(l)(a).

We further concluded, however, that the District violated the "in the exercise" portion of subsection (l)(a). The transferred teachers, as well as other members of the bargaining unit, correctly perceived that the District considered protected union activities in its decision to transfer the teachers. The natural and probable effect of the District's actions would be to restrain employees from engaging in protected activities for fear of unwanted consequences.

5. An average award is approximately one-third of the prevailing party's reasonable representation costs, up to the $3,500 limit. OAR 115-035-0055(l)(a); Benton County Deputy Sheriff's Association v. Benton County, Case No. UP-24-06, 22 PECBR 46, 4 7 (2007) (Rep. Cost Order). We adjust that percentage up or down for

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policy reasons described in our rules and cases. We generally adjust the award upward when an employer violates subsection (1 )(a) because the employer's conduct strikes at core PECBA rights. SEIU International Union Local 503, OPEU v. State if Oregon, Judicial Depmtment, Case No. UP-3-04, 21 PECBR 810 (2005). We conclude that the Association is entitled to larger-than-average award. We note, however, that even an average award would exceed the $3,500 cap, so we will award the maximum amount permitted by Board rules.

After considering the purposes and policies of the PECBA, our awards in prior cases, and the reasonable cost of services rendered, this Board awards the Association representation costs in the amount of $3,500.

ORDER

The District will remit $3 ,500 to the Association within 30 days of the date of this Order.

DATED this 2_ day of August 2011.

~'




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OF THE STATE OF OREGON

Case No. UP-028-11

SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 503, OREGON PUBLIC EMPLOYEES UNION,

Complainant,

v.

STATE OF OREGON, DEPARTMENT OF HUMAN RESOURCES,

Respondent.

I. STATEMENT OF THE CASE

CONSENT ORDER

On May 4, 2011, Complainant Service Employees International Union Local 503,

Oregon Public Employees Union ("Union") filed an unfair labor practice against Respondent

State of Oregon ("State"), Depai1ment of Human Resources ("DHS") alleging violations of ORS

243.672(l)(a). The allegations arose out of an investigation involving a former DHS employee.

During the course of the investigation, a witness was informed not to talk about the investigation

with the Union.

The parties have agreed to settle this matter by entry of this consent order, subject to

Board approval. They also agree to waive all further proceedings in this matter, including the

filing of an answer, a hearing before the Board, and judicial review of the consent order. Finally,

the signatories warrant they are authorized by their respective principals to sign the stipulation,

waive reading of the Administrative Procedure Act rights (ORS 183.413), and represent that the

statements in the stipulation of fact are accurate and constitute all of the evidence that either

party wished to present to the Board.

II. STIPULATED FACTS

1. Service Employees International Union Local 503, Oregon Public Employees

Union is a labor organization as defined by ORS 243.650(13).

Page 1 - CONSENT ORDER DM2926055

2. State of Oregon, Department of Human Services is a public employer as defined

by ORS 243.650(20).

3. DHS investigated a former employee for theft of a plant. During the course of the

investigation, DHS management told another represented employee not to discuss

the investigation with anyone other than her manager and Human Resources, and

specifically told her not to discuss the matter with her union steward.

III. STIPULATED CONCLUSIONS OF LAW

1. The Board has jurisdiction over these parties and this subject matter.

2. DHS violated ORS 243.672(l)(a).

IV. STIPULATED ORDER

1. DHS shall cease and desist from informing employees under investigation not to

discuss the investigation with the Union or with other employees. DHS may

restrict such discussions to non-working hours, except where such restriction is

limited by Article 10, Section 10, of the collective bargaining agreement.

2. DHS Director of Human Resources will send a letter to the DHS stewards Ashley

Nicole Browning and Leela Coleman informing them that they can talk with

employees during the course of an investigation.

3. An email will be sent statewide to HR professionals reminding them that

informing employees not to talk with the Union or other employees during

investigations is an unfair labor practice. A copy of the email will be sent to

Union counsel.

4. The parties will pay their own representation costs.

FOR THE UNION FOR THE STATE .

Joe~li~~ Legal Counsel SEIU Loca~503, OPEU Date: f!:!.<-S~ '2..- / '2-6 I I

0 Page 2 - CONSENT ORDER

DM2926055

Page 3 - CONSENT ORDER DM2926055

Vicl<leOWan;Board Member



OF THE

STATE OF OREGON

Case No. AR-001-10

(PETITION FOR REVIEW OF ARBITRATION AWARD)

IN THE MATTER OF AN ARBITRATION ) DISPUTE BETWEEN STATE OF OREGON,) DEPARTMENT OF HUMAN SERVICES, )

) Petitioner, )

) v. )

) SEID LOCAL 503, OPEU, )

) Respondent. )

~~~~~~~~~~~~~~~~)


This matter was submitted directly to the Board on February 3, 2011. The record closed with the submission of the parties' closing briefs on December 29, 2010.

Francis J. Connell, Assistant Attorney General, Labor and Employment Section, Department of Justice, Salem, Oregon, represented Petitioner.

Joel Rosenblit, Legal Counsel, SEID Local 503, OPEU, Salem, Oregon, represented Respondent.

On June 17, 2010, the State of Oregon, Department of Human Services (DHS), filed a petition for review of a June 4, 2010 arbitration award in a grievance between DHS and SEID Local 503, OPED (SEIU). DHS alleges the award violates ORS 240.086(2)(d) and (e).

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The issue is: Did the June 4, 2010 arbitration award violate ORS 240.986(2)(d) or (f)?

RULINGS

The Board made no rulings.

FINDINGS OF FACT1

1. SEIU, a labor organization, and DHS, a public employer, ·were parties to a collective bargaining agreement effective from July 1, 2007 through June 20, 2009. The agreement included the following provisions:

"Article 20--INVESTIGATIONS. DISCIPLINE AND DISCHARGE

"Section 1. The principles of progressive discipline shall be used when appropriate. Discipline shall include, but not be limited to: written reprimands; denial of an annual performance pay increase; reduction in pay; demotion; suspension without pay; and dismissal. Discipline shall be imposed only for just cause.

"*****

"Article 21--GRIEVANCE AND ARBITRATION PROCEDURE [Described a grievance procedure that culminates in binding arbitration and included the following provisions:]

"Section 1. Grievances are defined as acts, omissions, applications, or interpretations alleged to be violations of the terms or conditions of this Agreement.

"* * * * *

"All grievances shall be processed in accordance with this Article and it shall be the sole and exclusive method of resolving grievances, except for the following Articles:

"* * * * *

'These Findings of Fact are based on the parties' stipulations and included exhibits.

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"Section 6. Arbitration Selection and Authority.

"* * * * *

"(f) * * * The arbitrator shall have no authority to rule contrary to, to amend, add to, subtract from, change or eliminate any of the terms of this Agreement.

"* * * * *

"Article 22--No Discrimination

"Section 1. It is the policy of the Employer and the Union not to engage in unlawful discrimination against any employee because of race, color, marital status, religion, sex, national origin, age, mental or physical disability, or any other protected class under State or Federal law.

"* * * * *

"Article 56--Sick Leave

"*****

"Section 3. Sick Leave Exhausted.

"(a) After earned sick leave has been exhausted, the Agency shall grant sick leave without p:;iy for any job-incurred injury or illness for a period which shall terminate upon demand by the employee for reinstatement accompanied by a certificate issued by the duly licensed attending physician that the employee is physically and/or mentally able to perform the duties of the position.

"(b) After earned sick leave has been exhausted, the Agency [DHS] may grant sick leave without pay for any non-job-incurred injury or illness of a continuous and extended nature to any employee upon request for a period up to one ( 1) year. Extensions of sick leave without pay for a non-job-incurred injury or illness beyond one (1) year may be approved by the Agency."

2. DHS employed Hector Lopez (Lopez) as a Human Services Specialist in its Hillsboro Self-Sufficiency office from November 2003 until February 27, 2009. During his employment, Lopez was a member of the SEIU bargaining unit.

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3. On May 7, 2008, Lopez sustained an on-the-job injury when a shelf and its contents fell on him. Lopez filed a workers' compensation claim regarding his physical injmy. On June 10, 2008, a physician cleared Lopez to return to work on a modified basis. On December 2, 2008, the State Accident Insurance Fund closed Lopez's claim. Lopez and his doctors were dissatisfied with the accommodations DHS provided Lopez for his injury, and were also unhappy with the pace at which these accommodations were provided.

Lopez never filed any workers' compensation claim regarding mental illness.

4. Lopez suffers from bipolar disorder; his symptoms include depression and anxiety. These symptoms compromise his ability to manage everyday life stresses.

5. In July 2008, Lopez exhausted his entitlement to authorized leave of absence under the Family Medical Leave Act (FMLA) and Oregon Family Leave Act (OFLA). From July 2008 through December 8, 2008, DHS accommodated Lopez's mental illness by authorizing numerous absences when they were supported by a doctor's note.

6. In a Memorandum of Expectation dated July 16, 2008, DHS manager Patty Carr reminded Lopez that he had taken over 14 hours of unauthorized leave without pay during the month of June 2008. Carr acknowledged that Lopez told her that the reasons for these absences were back problems, stress, or anxiety. Carr warned Lopez:

"Your unplanned absences cause a hardship for the branch and your coworkers. As discussed with you previously, any leave without pay that is not covered by a doctor's note or pre-approved by me, will be considered unauthorized leave without pay and will result in disciplinary action.

"Please note that your attendance is critical to the operational needs of this branch. It is my expectation that you will be at work on a consistent full time basis. It is also my expectation that you continue to follow the expectations set out in this memo."

7. By letter dated September 12, 2008, DHS reprimanded Lopez for his excessive use of unauthorized leave. The letter noted that Lopez had taken more than 21 hours of unauthorized leave during the period from July 18 through July 31, 2008, and summarized a meeting Carr held with Lopez to discuss his absences as follows:

"During the August 15, 2008 fact finding meeting you stated the majority of the time you were out of the office in July 2008 was due to stress and other factors. You also stated during the meeting that sometimes in the

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morning your back locks up and you struggle getting to work. Also there are times when your back locks up at the end of the day and you start feeling the pain."

The letter warned Lopez:

"You must immediately correct and maintain acceptable behaviors regarding your use of unauthorized leave without pay. Failure to do so will result in further discipline up to and including dismissal from state service."

8. In late October or early November 2008, Lopez was admitted to the hospital emergency room for a variety of symptoms. He followed up with a visit to his physician, Dr. Todd Gillingham. According to Dr. Gillingham, Lopez's symptoms were thought to be a reaction to a new medication he was taldng for his bipolar disorder.

9. By letter dated November 7, 2008, Dr. Lynn Alvarez, Lopez's psychiatrist, asked DHS to grant Lopez a one-year medical leave of absence without pay. DHS asked Dr. Alvarez for additional information, and granted Lopez authorized medical leave without pay until December 8, 2008.

10. By letter dated December 4, 2008, DHS Senior Human Resource Manager Ken McGee denied Lopez's request for a one-year unpaid medical leave and told Lopez that in the future, a doctor's note would not excuse Lopez's absences.

11. By letter dated January 9, 2009, DHS imposed a one step, three month salary reduction on Lopez. The reason given for the salary reduction was Lopez's continued use of unauthorized leave without pay during the period from August 11 through December 19, 2008. The letter noted that DHS Senior Human Resources Manager McGee held two "fact finding meetings" with Lopez to discuss these unauthorized absences, and summarized the results of these meetings and the reason for the disciplinary action as follows:

"During the two fact finding meetings, your responses to unauthorized leave without pay included: out due to 'employment environment stress,' could not remember, or out due to medical and disability issues.

"Your responses do not mitigate or provide justification for your absences. Issues regarding 'employment environment stress' were reported to DHS Office of Human Resources. The Office of Human Resources investigated the allegations and was unable to find evidence to substantiate your claim.

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"The Hillsboro Self Sufficiency Office protocol is to call the attendance line before the start of an employee's shift to report if they will be out all day or late arrival. On the days you are reported as no calVno show, the attendance records reflect no call received from you.

"You have received prior expectations and discipline with regard to your continued use of unauthorized leave without pay. This discipline is warranted in that you have not corrected or maintained acceptable behaviors regarding your use of unauthorized leave without pay.

"Your continued unplanned absences cause a hardship for the branch and coworkers. Regular attendance is critical to the operational needs of the Hillsboro Self Sufficiency branch."

12. Lopez never filed a grievance over the July 16 Memorandum of Expectations, the September 12 written reprimand, or the January 9 salary reduction.

13. For four days-from Januaiy 12 through 15, 2009-Lopez was absent from work without authorization. Lopez returned to work on January 16, but left work early on that day.

14. By letter dated January 13, 2009, Dr. Alvarez revised her request for medical leave for Lopez. She asked that DHS grant Lopez leave for the period from November 7, 2008 through February 28, 2009. Dr. Alvarez also asked that DHS allow Lopez to begin working 20 hours per week on February 28, 2009. DHS denied this request.

15. By letter dated February 26, 2009, DHS dismissed Lopez from his position because of his failure to report for work as scheduled between December 23, 2008, and January 23, 2009. The dismissal was effective February 27, 2009.

The letter cited, in addition to Lopez's post-January 9, 2009 absences, other absences or partial absences on December 23, 24, 26, 29, and 31, 2008, and January 2, 6, 7, 8, and 9, 2009. December 23, 24, and 26 were inclement weather days on which other Hillsboro DHS office employees failed to report for work and used accrued vacation, leave without pay, or other authorized leave. The Hillsboro DHS office was closed on December 22 and opened two hours late on December 23 and 24. Lopez worked partial days on December 23 and 24 and did not make it to work on December 26.2

2Article 123, Section 2 from the parties' 2007-2009 collective bargaining agreement provides that if weather conditions are hazardous or inclement, " [ e ]mployees who are required to report to work by the Employe11Agency [DHS) shall be in leave without pay status if absent, unless otherwise on authorized leave. * * *"

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16. On March 15, 2009, SEIU filed a grievance on behalf of Lopez. The grievance alleged that DBS dismissed Lopez without just cause. The parties were unable to resolve their grievance and proceeded to arbitration.

17. An arbitration hearing on Lopez's grievance was held on January 10, 11, and 22, 2010. The parties agreed that the issue submitted to the arbitrator was: "l. Was the Grievant [Lopez] dismissed for just cause? 2. If not, what is the appropriate remedy?" SEIU contested only Lopez's discharge at the arbitration hearing, and did not challenge any of DHS's prior disciplinary actions.

18. On June 4, 2010, the arbitrator issued his award. The arbitrator prefaced his analysis of the parties' contentions with a discussion of two preliminary issues. The first preliminary issue the arbitrator discussed was "Mental Illness and Progressive Discipline." In regard to this issue, the arbitrator stated, in pertinent part:

"The Arbitrator addresses the topic of progressive discipline in an effort to encourage the Parties to rethink how discipline is to be administered in the context of a mental disability. The Parties' Agreement provides that 'The principles of progressive discipline shall be used when appropriate' (Article 20 Section 1 emphasis added). * * *

"* * * The following are the Arbitrator's thoughts on the concept of 'appropriate' progressive discipline in the context of an employee's mental illness.

"The Arbitrator is not a psychiatrist. Rather, his observations are based on experiences with arbitration disputes involving individuals with mental disabilities. In the Arbitrator's observation, problematic behaviors associated with certain mental disabilities are exacerbated by the receipt of progressive discipline. The mental disabilities to which the Arbitrator is referring are those which commonly include symptoms such as depression, anxiety, or other debilitating incapacity for managing the stresses of everyday life and work. These symptoms, depending on their degree of severity, may compromise an individual's ability to perform the tasks required by his or her employer; most importantly may make it difficult to be in attendance.

"Progressive discipline for just cause is clearly required by the CB.A [collective bargaining agreement] * * *. In the event that progressive discipline is issued for misconduct, it is successful when it communicates

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to the employee the message that his or her misconduct is expected to be remedied. From the employee's perspective, being placed on notice of misconduct may be stressful; however, it may also constitute the only reason for changing the behavior in question.

"* * * * *

"In the event that progressive discipline is issued for an inability to perform due to certain kinds of mental illness, however, it is likely not to function in a remedial manner whatsoever. In the Arbitrator's observation, it is even likely to exacerbate the inability to perform because of the severity of the negative impact it may have on the employee's emotional well-being.

"Unfortunately, [Lopez's] situation is an illustration of the Arbitrator's above observations regarding the difficulties of administering progressive discipline appropriately as contemplated by the CBA.

"* * * * *

"Beginning in 2006, the Employer began to be concerned with [Lopez's] absences. According to [Lopez's] undisputed testimony, many of his absences were a direct manifestation of his inability to manage the stresses inherent in a workday. Thus, the problematic behavior of absenteeism was directly the result of [Lopez's] mental state or the state of his illness." (Citation to exhibit omitted.)

The arbitrator reviewed each of the disciplinary actions D HS took, explained how they exacerbated Lopez's mental illness, and also described the frustration Lopez's psychiatrist experienced in trying to arrange a medical leave of absence for Lopez. The arbitrator concluded his discussion of progressive discipline and mental illness as follows:

"The Arbitrator is convinced that the sum of the above factors placed [Lopez] under such difficult circumstances, that the only thing which would have helped him was the one year medical leave completely away from work, as recommended and requested by Dr. Alvarez. Because [Lopez] was no longer eligible for FMLNOFLA at the time that Dr. Alvarez made the request, it appears that [Lopez's] only hope at maintaining his job and improving his mental health would have been receiving a lengthy unpaid leave of absence, an option that the CBA places at the discretion of the Employer. (Citation to exhibits omitted.)

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19. The second preliminary issue the arbitrator addressed in his decision was "FMLA/Unpaid Medical Leave." The arbitrator began his discussion by noting that Lopez had used up his FMLAand OFLAleave by July 16, 2008. The arbitrator observed that after Lopez's FMLA and OFLA leave was exhausted, DHS "continued to extend a great deal of unpaid medical leave to [Lopez], authorizing numerous absences when they were supported by a doctor's note," but stopped authorizing additional leave on December 4. DHS also denied Lopez's request for a one year medical leave of absence. The arbitrator criticized DHS's actions:

"The unfortunate consequence for [Lopez] of the Employer's decision not to continue extending his unpaid medical leave of absence beyond that provided by FMLNOFLA is that he was left with only two possibilities: either to be at work or to face the reality of losing his employment due to his inability to work, even though this inability was the result of a bona fide medical condition."

20. After addressing the preliminary issues of mental illness and progressive discipline and FMLNOFLA leave, the arbitrator then considered the issue presented by the parties-whether DHS had just cause to discharge Lopez.

The arbitrator concluded that DHS did not have just cause to discharge Lopez. The arbitrator began his analysis by holding that DHS's attempts to use progressive discipline to correct Lopez's absentee problem were ineffective:

"Progressive discipline as it relates to a matter of misconduct assumes that the employee controls the undesired behavior. That is a highly questionable assumption when it comes to the problem of absenteeism cause [sic] by an illness, whether mental or physical. Telling an employee with cancer to be at work or he or she will lose his or her employment will not cure cancer. Telling [Lopez] to be at work or he will lose his employment will not cure bipolar and, as outlined above, will probably exacerbate the illness."

The arbitrator described Lopez's illness as a "hybrid; in part non work-related and in part work-related * * *." In support of this conclusion, the arbitrator determined that the following DHS actions contributed to Lopez' mental illness:

-DHS used "[l]anguage in disciplinary actions that appears to blame him for his illness and sanctions the behavior that is the result of the illness."

-DHS responded slowly and incompletely to Lopez's request for

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accommodation after the bookcase accident, which exacerbated Lopez' mental illness.

-DHS processed Lopez's request for medical leave in a slow and confusing manner. In particular, DHS created difficulties "with regard to the letter requesting additional information from his physician. * * * Had the Employer been clearer about why it was asking the questions it was asldng, much of the confusion might have been eliminated and the physician's response more timely. This all contributed, in the Arbitrator's view, to the level of stress being felt by [Lopez]."

-DHS ordered Lopez to return to work without a doctor's release on December 9, 2008. In so doing, DHS did not "do an adequate job of explaining the fact that a legitimate and well documented illness does not provide job protection once all of the appropriate leaves are exhausted. * * * It is the Arbitrator's conclusion that a lot of the angst and therefore the stress could have been avoided ·with a more thoughtful and sympathetic explanation of the Employer's right to discharge even when an employee's medical condition does not allow the employee to work."

-DHS penalized Lopez for his absences during the bad weather days in December 2008. "The issue with [Lopez] was his absences cause [sic] by his medical condition. The fact that he and most of the office were absent because of a heavy snowstorm has no relationship to the primary problem. * * * The point is that the snow days illustrate an overall pattern of response on the part of the Employer which heightened stress and tension thereby exacerbating [Lopez's] mental illness problem. Again, This [sic] is part of the reason why the Arbitrator concludes that the grievance [sic] continuing problem with mental illness is partly work related; a hybrid."

21. The arbitrator disagreed with DHS's contention that Article 56, Section (3)(a) did not apply to Lopez's leave request because it did not result from a "job-incurred illness or injury." The arbitrator held:

"* * *the Employer should have granted the request for a one year plus unpaid medical leave of absence and that Article 56, Section (3)(a) does, at least to a limited extent, apply. In part his reasoning is, as set forth above, that his mental illness was exacerbated by a unique set of workplace stressors. This fact is coupled with the requirement of Article 20, Section 1 to apply progressive discipline 'as appropriate.' While the Employer went through the steps of progressive discipline, there was never any hope that

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they would have any positive results. As previously discussed, imposing a one day unpaid suspension does not cure cancer and, likewise, imposing a three month salary reduction does not cure bipolar. Dr. Alvarez made it clear that the only reasonable hope for [Lopez] to get on top of his mental health problem was a leave of absence. * * *

u * * * *

"Based on all the somewhat unique facts surrounding this case, the Arbitrator concludes that the Employer would not have had just cause for a discharge until it had tried what the physician was requesting. The Employer needed to make a good faith effort to use something that had a chance of working as opposed to a process that clearly was going to have little if any positive results."

22. The arbitrator ordered DHS to reinstate Lopez within 30 days of the date of his decision, provided that Lopez could provide a statement from his physician that he was ready to resume full-time work at DHS. The arbitrator also stated that

"* * *it needs to be made clear that [Lopez] has exhausted his right to remedial activity and thus if he is not able to maintain regular attendance he can once again be subject to discharge. It may very well be that the nature of [Lopez's] illness and his job duties are not compatible, but the Arbitrator finds that he is entitled to be given the opportunity to show otherwise."

23. The arbitrator restored Lopez's seniority rights but awarded him no back pay or benefits.

CONCLUSIONS OF LAW


or (e). 2. The June 4, 2010 arbitration award does not violate ORS 240.086(2)(d)

ORS 240.086(2), in pertinent part, requires this Board to:

"(2) Review and enforce arbitration awards involving employees in certified or recognized appropriate collective bargaining units. The awards shall be enforced unless the party against whom the award is made files

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written exceptions thereto for any of the following causes:

"* * * * *

"(d) The arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.

"*****

"(f) The arbitrators awarded on a matter not submitted to them, unless it was a matter not affecting the merits of the decision upon the matters submitted."

We use the same deferential standards to review arbitration awards challenged under ORS 240.086(2) as we do under the Public Employee Collective Bargaining Act (PECBA). In the Matter of the Arbitratio11 of a Dispute Between State of Orego11, Department of Human Services, Oregon State Hospital v. American Federation of State, County and Municipal Employees, Local 3295, Case No. AR-01-08, 23 PECBR 712, 720 (2010).

Public policy strongly favors arbitration as a fast, economical, and efficient way for parties to resolve their disputes and avoid labor unrest. 1\llarion County Law E1iforcement Association v. Mario11 County, Case No. UP-24-08, 23 PECBR 671, 685 (2010). For this reason, we "subject [arbitration awards] only to sparing review, in the interest of promoting the efficiency and finality of arbitration as a decision-maldng process for parties who contract to use it." Federation of the Oregon Adult Parole Officers v. Co1nctions Div., 67 Or App 559, 563, 679 P2d 868, rev den, 297 Or 458 (1984). When parties agree to a grievance process that culminates in arbitration, they agree to accept the arbitrator's interpretation of their contract. Clackamas County Employees Association v. Clackamas County, Case No. UP-4-08, 22 PECBR 404, 411 (2008), AWOP, 228 Or App 368, 208 P3d 1057 (2009). Our role is to make sure the parties get what they bargained for, that is, a binding decision by the arbitrator. Clatsop Community College Faculty Association v. Clatsop Community College, Case No. UP-139-85, 9 PECBR 8746, 8761-62 (1986).

As long as a decision is based on the arbitrator's interpretation oflanguage in the parties' collective bargaining agreement, "the arbitrator is within his [or her] contractual authority and the parties are bound by the decision." Clatsop Community College, 22 PECBRat 411. We will enforce an arbitrator's award even if we believe the arbitrator was wrong. "Neither a mistake of fact or law vitiates an [arbitration] award." Brewer v. Allstate Insurance Co., 248 Or 558, 562, 436 P2d 547 (1968); Portland Association of Teachers and Jim Hanna v. Portland School District lf, Case No. UP-64-99, 18 PECBR816,

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836-37(2000), ruling 011 motion to stay, 19 PECBR 25 (2001),AWOP, 178 Or App 634, 39 P3d 292, 293, rev den, 334 Or 121, 47 P3d 484 (2002) (it is not this Board's role to correct an arbitrator's decision even if we are convinced it is erroneous); EastemAssociated Coal C01p. v. Mine Workers, 531 US 57, 62 (2000) (the fact that a court may be convinced that a labor arbitrator "committed serious error does not suffice to overturn his [sic] decision.").

We apply these standards to the arbitrator's award that DHS challenges here. DHS acknowledges that our review of an arbitrator's award is extremely limited. It contends, however, that the arbitrator "exceeded his powers" in violation of ORS 240.086(2)( d) by adding terms to the parties' collective bargaining agreement, and violated ORS 240.086(2)(£) by ruling on issues not submitted to him.

We begin by considering D HS' s allegation that the arbitrator exceeded his powers by adding language to the contract. The parties' contract expressly states that "[t]he arbitrator shall have no authority to * * * add to * * * the terms of this Agreement." DHS asserts that the arbitrator added two new requirements to the contract. First, DHS contends that the arbitrator created a "mental illness exception" to the language concerning progressive discipline in Article 20 of the parties' collective bargaining agreement. It argues that the arbitrator's conclusion that DHS inappropriately used progressive discipline in Lopez's case creates a new restriction: DHS is now barred from using progressive discipline with mentally ill employees. Second, DHS asserts that the arbitrator added a new contract term by characterizing Lopez's illness as a "hybrid"-an illness partly non-work related and partly work-related. DHS argues that this conclusion adds a new requirement to Article 56, Section 3: DHS must now consider and grant unpaid medical leave to employees with "hybrid" illnesses or injuries.

We disagree. We conclude that the arbitrator merely interpreted existing contract language and did not add new requirements to the parties' collective bargaining agreement. The arbitrator analyzed the language in Article 20 of the contract that requires DHS to use progressive discipline "when appropriate." The arbitrator concluded that, in these circumstances, DHS's use of progressive discipline was not "appropriate" because of Lopez's mental illness. The arbitrator's conclusion was clearly based on his interpretation of the "when appropriate" contract language. DHS's real disagreement is with the arbitrator's interpretation. As discussed above, this is not a basis for overturning an arbitrator's award. The parties agreed to submit their contract interpretation dispute to the arbitrator. Our role is to make sure the parties get what they bargained for, i.e., an arbitrator's interpretation of their contract. Here, the arbitrator interpreted the contractual just cause and progressive discipline provisions, and we will enforce that award without reviewing whether it is right or wrong.

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Inregard to the arbitrator's conclusions about the hybrid nature of Lopez's illness, the arbitrator was similarly interpreting the contract. The contract requires DHS to grant requests for unpaid leave from employees with job-incurred illness or injuries; it pennits, but does not require, DHS to grant unpaid leave requests from employees with injuries or illnesses not incurred on the job.

Thus, the obligations that DHS claims the arbitrator added to the contract-a restriction on the use of progressive discipline with mentally ill employees and a requirement that DHS grant unpaid medical leave to employees with certain types of mental illness-resulted from the arbitrator's interpretation of language in the parties' collective bargaining agreement as applied to the unique facts of this case. The arbitrator did not add to the parties' contract, and therefore did not exceed his authority in violation of ORS 240.086(2)(d).

DHS's reliance on Che1101vith Ed. Assn. v. Chenowith School Dist. 9, 141 Or App 422, 918 P2d 854 (1996) is misplaced. In Cltenowith, the court refused to enforce an arbitrator's award that ordered a school district to put new language into the collective bargaining agreement based on a proposal that the union made to a preparation time committee. The contract language at issue specified that any decisions made by the committee would be incorporated into the collective bargaining agreement. The court held that the arbitrator exceeded his authority by requiring that a proposal, to which the committee had not agreed, be put in the agreement:

"The arbitrator found that the parties did not agree to the language proposed by the Association. Nevertheless, he ordered the proposal incorporated into the agreement, thereby in effect adding a new, unagreed-to provision to the agreement. For that reason, his order exceeds the authority granted to him by the agreement. He was not authorized to make a new agreement for the parties under the guise of interpreting an existing agreement." Id. at 428.

Here, the arbitrator interpreted and applied contract language to which the parties had agreed-a requirement for appropriate use of progressive discipline inArticle 20 and provisions for granting unpaid sick leave inArticle 56, Section 3(a) and (b). In so doing, the arbitrator clarified existing provisions in the parties' collective bargaining agreement and did not add new or unbargained contract language.

DHS also contends that the arbitrator's decision must be vacated because the arbitrator "awarded on a matter not submitted to him" in violation of ORS 240.086(2)(e). DHS notes that the Union never grieved Lopez's September 12

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reprimand, his January 9 salary reduction, or the denial of his request for unpaid leave. According to DHS, the arbitrator exceeded his authority by niling on the propriety of these actions in his award. We disagree.

The arbitrator did not overturn the actions DHS took prior to discharging Lopez. Instead, the arbitrator analyzed the issue the parties' presented to him-whether Lopez's discharge violated the just cause provision in the parties' contract. The arbitrator found that the attempts DHS made to correct Lopez's attendance problem-reprimanding him and reducing his salary-had little chance of success because of Lopez's mental illness. In addition, the arbitrator held that by refusing to grant Lopez leave, DHS denied him the only possible opportunity to improve his work performance. The arbitrator concluded that DHS's pre-discharge actions were insufficient to provide just cause for DHS's imposition of the most severe form of discipline-discharge.

The arbitrator's award is based on his interpretation of the issue the parties asked him to decide (Lopez's discharge) and the contract language they asked him to consider (the just cause provision in Article 20). The arbitrator did not rule on issues not submitted to him in violation of ORS 240.986(2)(£). 3

II

II

II

3DHS also contends that the arbitrator exceeded the power granted to him by the contract because his "[a]ward is based in part on the Arbitrator's opinion that [DHS] discriminated against Mr. Lopez because of his disability and/or failed reasonably to accommodate that disability." According to DHS, the arbitrator found that DHS discriminated against Lopez on account of his mental illness or physical injury in a number of ways-by denying Lopez's request for sick leave, by using language in written disciplinary actions that appears to blame Lopez for his problems, and by failing to accommodate adequately Lopez's May 2008 physical injury. DHS argues that by concluding that DHS discriminated against Lopez, the arbitrator exceeded the authority granted him under Article 2, Section 1. That contractual provision excludes grievances filed under Article 22, No Discrimination, from arbitration.

Contrary to DHS's assertion, the Union did not file a grievance under Article 22. The Union's grievance alleges that DHS violated the just cause requirement of Article 20. In interpreting this contract provision, the arbitrator held that just cause required DHS to consider the special circumstances of Lopez's mental illness. Thus, any conclusions the arbitrator reached regarding DHS's treatment of Lopez's mental health issues were based on his interpretation of the contract language the parties agreed was at issue. Nowhere in his award did the arbitrator implicitly (or explicitly) find that DHS unlawfully discriminated against Lopez in violation of Article 22.

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ORDER


DATED thi< Ll_ day of Aug'm 201 I. ' /1 ~ ~' Paul B. Gamson, Chair

JiL-fll/-~ ' Vickie Cowan, Board Member



16


OF THE

STATE OF OREGON

Case No. UP-26-06


AFSCME COUNCIL 75, LOCAL 3694, ) )

Complainant, ) )

v. ) )

JOSEPHINE COUNTY, ) )

Respondent. ) ~~~~~~~~~~~~~-)

COMPLIANCE ORDER

On October 30, 2007, this Board issued an Order holding that Josephine County (County) violated ORS 243.672(l)(a) and (b) when it transferred mental health programs from the County to other organizations. 22 PECBR 61. As a result of the unlawful transfer, a number of employees represented by AFSCME Council 75, Local 3694 (AFSCME) lost their jobs with the County. Most of the employees followed the work to the other organizations, but often at reduced wages and benefits. As pertinent here, we ordered the County to make the contracted-out employees whole for lost wages and benefits from the date of the transfer until 30 days after the date of the Order, with interest, but minus interim earnings.

The County appealed. While the appeal was pending, we withdrew our October 30, 2007 Order to address remedial issues raised and discussed in an interim order from the Court of Appeals, dated January 13, 2009, concerning a stay pending appeal. 23 PECBR 33. On March 12, 2009, we issued an Order on Reconsideration under ORS 183.482(6). We adhered to our October 2007 Order, but modified it to specify that the County was required to provide make-whole relief to former AFSCME bargaining unit members for the period beginning on the date the former County employees ceased being AFSCME bargaining unit members and ending on the date the County reinstates them to their former positions. 23 PECBR 37.

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On March 31, 2010, the Court of Appeals affirmed our Order. 234 Or App 553, 228 P3d 673 (2010).

By letter dated August 24, 2010, AFSCME notified this Board that it believed the County had failed to comply with some portions of the remedy this Board ordered, and it asked that we take further action to enforce our Orders. We asked the County to tell us the steps it had taken to comply with our Orders, and the County did so by letter dated October 28, 2010. 1

On January 18, 2011, AFSCME filed a Motion to Compel Enforcement of our Orders. In its motion, AFSCME alleges that the County made a number of errors in calculating the back pay and benefits owed to former employees of the County's Early Intervention (EI) program who now work for the Southern Oregon Education Service District (ESD), and to former employees of the County's mental health programs who now work for Options of Southern Oregon (Options). At our request, the parties provided additional information concerning their dispute.

The issues are:

1. Did the County erroneously calculate the wages former County EI employees would have earned had they continued working for the County?

2. Did the County erroneously calculate interim wages earned by former County El employees who now work at the ESD?

3. Did the County erroneously fail to compensate former County EI employees for vacation time they lost when they began working for the ESD?

4. Did the County fail to adequately compensate former County employees who now work for Options for retirement benefits they would have earned had they continued worldng for the County?

5. Did the County erroneously calculate interim wages earned by former County employees who now work at Options?

'In its October 28, 2010 letter, the County included a copy of an agreement it reached with AFSCME on a number of remedy issues. Among the issues this agreement resolved was reinstatement; the parties agreed that the County was required to reinstate only three former employees of the mental health department, and the rest of the transferred employees would remain with their new employers.

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FINDINGS OF FACT

The following facts are undisputed by the parties:

Employees Transferred to the ESD

1. When EI employees worked for the County, they worked 12 months per year. These employees are now employed by the ESD and work 10 months per year-a total of 190 work days. Pay for this 190-day work year is spread over 12 months so that employees receive a paycheck every month.

2. During the 2005-2006 fiscal year (FY), EI employees took a four-week voluntary unpaid furlough to avoid layoffs. EI employees also went on strike for three days in 2006. They received no pay for the days they were on strike.

3. During FY 2008-2009, County employees took 13 unpaid furlough days. During FY 2009-2010, County employees took 10 unpaid furlough days.

4. The County used the following formula to calculate the monthly wages each EI employee would have earned had the employee continued working for the County:

a. For each employee, the County added together all regular hours worked,2 all holiday hours taken, and all sick leave or personal leave hours taken for FY 2005-2006 (from July 1, 2005 through June 30, 2006). The County excluded leave bank balances paid to each employee on June 30, 2006, the date each employee stopped working for the County.

b. The County converted the total hours paid during the year to the standard ratio used in Oregon Budget Law to express employee full time equivalency (FTE).

c. The County multiplied the actual FTE for FY 2005-2006 by the average of 173.333 full-time monthly hours to calculate hours the employee would have

'In computing hours these employees worked during FY 2005-2006, the County did not include the four-week voluntary furlough, three-day strike, or any unpaid time off an individual employee took.

'The County calculated average full-time monthly hours by multiplying 40 hours per week by 52 weeks per year and dividing it by 12 months as follows: 40 x 52 = 2080 + 12 = 173.33.

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worked per month for the entire remedy period, the period from July 2007 through June 2010.4 For example, the FTE for a half-time employee is .50 FTE; .50 x 173.33 hours per month = 86.67 hours worked per month.

d. The County multiplied the employee's hourly wage by the hours worked per month (as calculated in part c) to compute the monthly salary the employee would have earned had the employee continued working for the County.

5. To determine the back wages owed to each former EI employee, the County calculated the difference between the monthly County wages the employee would have earned and the monthly ESD wages the employee actually earned during the remedy period. The County reduced County monthly wages for furlough days other County employees took in FYs 2008-2009 and 2009-2010, and increased it for step and cost-ofliving increases the employees would have received. The County considered each of the 12 paychecks an ESD employee received as the employee's monthly wages. The County reimbursed each employee for the difference between the monthly Countywages and the monthly ESD wages.

6. For each former EI employee, the County compared the monthly amount the employee would have paid out-of-pocket for health insurance premiums at the County with the monthly amount the employee actually paid out-of-pocket for ESD health insurance premiums. If the employee paid more out-of-pocket for County health insurance premiums than for ESD premiums, the County considered the difference between the County and ESD payments to be an increase in the employees' monthly wages. The County then added the amount of this difference to each employee's monthly ESD wages. In effect, the County used the reduced out-of-pocket premium cost as an offset to the back wages it owed the transferred employees.

7. For each County employee, the County contributed an amount equal to sL'< percent of the employee's monthly wages to the employee's Oregon Public Employees Retirement System (PERS) account. Each County employee was required to pay an additional six percent of the employee's wages into the employee's PERS account.

For EI employees who were transferred to the ESD, the ESD "picked up" (paid) the six percent employee contribution employees would otherwise have been required to pay into their PERS account. When the County computed the wages that each former EI employee earned during the remedy period, it considered this six percent PERS

4The parties agreed that the appropriate remedy period for calculating back wages and benefits is July 2006 through June 2010.

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pickup to be an increase in the wages the employee earned with the ESD. In effect, the County used the PERS pickup as an offset to the back wages it owed the transferred employees.

8. Fonner County employees who now work at the ESD have many more days off than when they worked for the County because of school breaks and holidays. ESD employees receive no pay for these days off. The County did not reimburse ESD employees for any paid vacation time they would have received had they continued working for the County.

Employees Transferred to Options

9. Former County employees who worked at Options during the remedy period could make voluntary contributions to a 403b deferred compensation plan. Options matched the amount of each employee's contribution, up to six percent of the employee's monthly salary.

The Options 403b plan has a number of features that are different from PERS. Participants in the 403b plan can determine the amount they wish to contribute and can change that amount if they wish. They can also withdraw their contributions under certain circumstances.

10. The County has not made former County employees who now work at Options whole for the contributions the County would have made to each employee's PERS account had the employee worked for the County during the remedy period.

11. Options gave former County employees the following gift cards:

• In December of 2006, 2007, 2008, and 2009, employees received holiday gift cards with a face value of $100 per FTE.

• During the period from January 2008 through March 2010, employees received gift cards to reward them for years of service to the people of Josephine County. The value of each gift card varied, depending in part on the number of years the employee had worked for the County.

• During the period from April 2010 through June 2010, one employee received a gift card in the amount of $171.38; one employee received a gift card in the amount of $128.53; and two employees received gift cards in the amount of $42.84.

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12. Former County employees working at Options received the following bonuses:

• In September 2007, employees received a discretionary bonus of $1,000 per FTE.

• Between January 2008 and March 2010, Scott Willi received a longevity bonus of $342.76, and Melody Beckvvith received a longevity bonus of $555.50; other Options employees received discretionary bonuses in amounts ranging from $85.69 to $1,371.03.

13. In calculating the interim wages former County employees earned at Options, the County treated the cash value of gift cards and the bonuses as wages the employees received from Options.

DISCUSSION

l. The County erroneously calculated the wages former EI employees would have earned had they continued to work for the County during the remedy period.

ORS 243.676(2)(c) authorizes this Board to award back pay to individuals injured by an unfair labor practice. Our objective in making a back pay award is to restore "the circumstances existing before the offending party's unlawful conduct." Central Education Association and Vilches v. Central School District 13/, Case No. UP-7 4-95, 17 PECBR 93, 94 (Order on Reconsideration), ajfd, 155 Or App 92, 962 P2d 763 (I 998). To achieve this goal, we ordered the County to use the following formula to calculate back pay owed to former EI employees:

"The County must compute the loss of pay for each separate month or part of a month during the remedy period. The County must compare EI employees' interim wages for each month with the wages the employees would have earned for that same month had they continued to work for the County, and pay employees any difference." 22 PECBR at 661.

This formula has two components: the amount the employee would have earned with the County, and the amount the employee actually earned through interim employment. This portion of the dispute concerns the amount the EI employees would have earned had they remained with the County.5

'Back pay disputes fall into a general pattern. Employers seek to reduce their back pay liability (i.e., reduce the difference between what the employees would have earned if they

( ... continued)

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We recently reviewed the appropriate methods for calculating how much employees would have earned had they continued working for the employer. In Mmion County Law E1iforce111e11tAssociation v. Mmion County, Case No. UP-24-08, 24 PECBR_ (2011) (Compliance Order), we observed that neither the Public Employee Collective Bargaining Act (PECBA) nor this Board's cases provide guidance. We therefore looked to the National Labor Relations Board's NLRB Casehandling Manual (Manual). See also Lebanon Association of Classified Employees v. Lebanon Community School District, Case No. UP-33-04, 21 PECBR 533, 536-37 (2006) (consulting the Manual to resolve back pay issues); Central School District, 17 PECBRat 800 n 8 (1998) (Compliance Order) (same); Woodbum Education Association and Bradford v. Woodburn School District No. 103C, Case No. C-126-83, 8 PECBR 8362, 8366 (1986) (Enforcement Order) (same).

Section 10540.1 6 of the Manual identifies three possible formulas to calculate how much an employee would have earned, with directions to adopt the formula that best fits the circumstances. Here, the parties agree that the appropriate formula is to compute the average salary the employee actually earned in a representative period before the unlawful transfer. 7 The parties also agree that the appropriate representative period is FY 2005-2006, just before the County unlawfully transferred the employees. The dispute is over application of this formula.

The County applied this formula by computing the monthly average salary for each former EI employee based on the hours each employee worked during FY 2005-2006. The sticking point is that the County excluded hours for the four-week furlough and the three-day strike in FY 2005-2006. Stated differently, the County

( ... continued) remained with the employer and what they actually earned through interim employment). They therefore typically make arguments that seek to maximize what the employee actually earned and minimize what the employee would have earned. Unions argue the opposite. They want to increase the back pay award, so they make arguments that seek to maximize what the employees would have earned and minimize the offset for what they actually earned. All of the disputes in this compliance proceeding follow this familiar pattern.

6Published at https://www.nlrb.gov/sites/default/files/documents/44/compliancemanual.pdf (last visited on September 1, 2011).

'The other two methods are based on the average hours worked by comparable employees, or the hours worked by the person who replaced the discharged employee. Neither of these formulas would work here. The County contracted out the entire department, so there were no comparable or replacement employees with the County during the back pay period.

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assumed that since the employees did not work during the furlough and strike in 2005-2006, they similarly would not have worked those hours in subsequent years during the back-pay period. This assumption reduces the average monthly salary the employees would have earned with the County and thus reduces the amount of back pay the County would owe the transferred employees.

AFSCME contends that the County should not have included the 2005-2006 furlough and strike days in its coniputation of the employees' monthly average salary. We agree 'With AFSCME. An appropriate period is one which is representative of the employee's normal work schedule, and it excludes any periods in which there were unusual fluctuations in work hours or wages. Manual, Section 10540.28 (the calculation of the average wage should exclude any "extraordinary variations" in employees' work schedules).

Here, the County selected an appropriate period-FY 2005-2006-to calculate former EI employees' monthly average salary.9 The County erred, however, by including in this computation those months in which the EI employees experienced drastic fluctuations in their work hours and wages due to a four-week furlough and three-day strike. Our goal is to determine, as accurately as we can, the wages the employees would have earned if the County had not unlawfully transferred them. As described, we ;viii use a formula based on the average monthly wage the employees earned during the FY just prior to the transfers. The County may not reduce that average by including extraordinary variations such as furlough days or a strike. 10

Accordingly, we order the County to exclude from its calculation of the average monthly wage in FY 2005-2006 those months in which former EI employees were on strike or furloughed. The follmving example illustrates what the County must do. If former EI employees' wages were reduced for two months in FY 2005-2006 because of

'Published at https://www.nlrb.gov/sites/default/files/documents/44/compliancemanual.pdf (last visited on September 1, 2011).

9We differ from the NLRB in that we compute loss of pay on a monthly, rather than a quarterly, basis. Oregon School Employees Association v. Klamath County School District, Case No. C-127-84, 9 PECBR 8832, 8853 n 28 (1986).

'°The County imposed a smaller number of County-wide furlough days in two different years during the back pay period. The County need not pay back wages to the transferred employees for those furlough days because the employees would not have worked on those days even if they had remained with the County. But furlough days during the back pay period are different from furlough days during the representative period prior to the transfers. The County may not include furlough days served prior to the back pay period to reduce the employees' average monthly salary for the entire back pay period.

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the strike and furlough, the County will not include these months in its computations. Thus, the County would calculate an employee's average monthly wage by adding the remaining 10 months of wages and dividing this amount by 10.

2. The County will base its calculations of each former EI employee's interim earnings from the ESD on a 10-month wage.

We again begin with the formula that back pay equals the amount the employees would have earned with the County minus the amount they actually earned from interim employment. The County must make this calculation for each month of the back pay period. This dispute concerns the proper method for determining the monthly income employees earned from interim employment with the ESD. At the ESD, the employees work for only 10 months, but as a convenience to its employees, the ESD divides each employee's annual salary into 12 parts so the employee gets a paycheck every month. In effect, employees defer a portion of their monthly earnings so they can receive a paycheck even in the two months when they do not work.

The issue is how much the employees earned for purposes of the back pay calculation during the two months when they did not work but received a paycheck for deferred compensation. The County treated the pay for those two months as an offset against the amount the employees would have earned with the County during those two months.

We disagree. The employees performed no work for pay during those two months, so there is no income to act as an offset against what they would have earned with the County. !I The net result, however, may be a wash because the checks the employees received for those two months are properly attributable to the other ten months when they did work and when the money was earned. The paychecks for those two months should be equally allocated to the other ten months. This increases the interim earnings for those ten months and thereby decreases the County's back pay obligation for those months.

The former EI employees would have worked 12 months if they had remained with the County. To make these employees whole for the work they lost when they began working for the ESD, the County must calculate back pay based on the employees' 10-month interim wages. Lincoln County Education Association v. Lincoln County SclwolDistrict, Case No. UP-14-04, 21PECBR300,305 (2006) (Compliance Order). To determine former EI employees' interim earnings, the County will divide each employee's annual salary by 10 to determine the employee's monthly interim earnings

11This applies only to the deferred pay the employees received from the ESD. If individual employees engaged in other interim work during those two months, the amount they earned may be offset against the amount of back pay the County otherwise owes them for those months.

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for 10 months. The County will credit the employee with no earnings for the remaining two months in which they perform no work for the ESD. As a result of these calculations, ESD employees' monthly wage will be higher for 10 months of the year and the amount of back pay the County owes them will be less for these months. For two months of the year, however, these employees had no interim earnings and the County's back pay liability will be greater for these months.

3. The County will not consider the following as interim wages for former EI employees: (1) any difference in the amount employees paid out-of-pocket for County health insurance premiums and the amount employees paid out-of-pocket for ESD health insurance premiums; and (2) the six percent PERS contribution that the ESD picked up for these employees.

This dispute concerns the components of interim earnings that qualify as an offset against the vvages the employees would have earned with the County. Specifically, the County asserts that the EI employees received more generous contributions to their health insurance premimns12 and retirement plan from their interim employment with the ESD than they would have received if they remained with the County. The County asserts that the excess should be treated as interim wages and used to offset the back pay it owes the employees. The effect would be to reduce the amount the County owes the transferred employees.

The County made the calculation as follows: If a former EI employee paid less out-of-pocket for health insurance premiums at the ESD than at the County, the County considered the difference between the County and ESD payments to be an increase in the employee's wages. The County then added the amount of this difference to the interim ESD wages. The County performed a similar computation with the six percent PERS contribution the ESD picked up for each former EI employee that would not have been picked up if the employee had remained with the County. The County added the amount of this PERS pickup to each employee's interim wages. The County contends that these two items are appropriate additions to interim wages because former EI employees received automatic pay increases when they began paying less to PERS and less for their health insurance benefits. We disagree.

"To be clear, the current discussion applies only to the cost of health insurance premiums. In an earlier order, we dealt with the disparity in health insurance benefits. We held that the County must reimburse employees for out-of-pocket medical expenses they incurred under the interim employer's health insurance plan that they would not have incurred if they had remained under the County's health insurance plan. 22 PECBR 651, 664 (2008) (Supplemental Order), adh'd to 011 recons, 22 PECBR 904 (2009).

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The NLRB does not normally treat payments for a medical insurance plan or contributions to a retirement fund as interim earnings that offset back wages. Manual, Section 10552.4. See also John T. Jones Co11strnctio11 Co., 352 NLRB 1063, 1067 (2009) (inappropriate to add monetary value of fringe benefits to employees' interim earnings, despite employer's argument that failure to do so results in a "windfall" for employees). We agree with this principle and apply it here. The County cannot use the PERS pickup the ESD now pays, or any difference in the employees' out-of-pocket payments for health insurance premiums, as an offset to the back wages the County owes the former EI employees. 13

4. The County will compensate former EI employees for vacation time they lost when they began working for the ESD.

The County contends that former EI employees who now work at the ESD have much more time off than they did at the County because they do not work during school holidays and breaks. According to the County, it is unnecessary to pay these employees for any vacation time they would have received had they continued working for the County. The County has incorrectly interpreted and applied the provisions of our earlier Supplemental Order, 22 PECBR 661. In that Order, we explained the County's obligation to make former employees whole for lost vacation time:

"If an employee earned more vacation time working for the County than the employee does worldng for a new employer, the employee will not be made whole unless compensated for this difference." 22 PECBR at 665.

Former EI employees earn 110 paid vacation time at the ESD. They work 190 days per year and are not paid for time off due to school holidays and breaks. Accordingly, the County must compensate these employees for the paid vacation time they would have received at the County. The appropriate calculation is to reduce the amount of interim earnings the employees received from the ESD by the amount of paid vacation time the employees would have received if they had remained at the County. Manual, Section 10544.5.

13This does not mean we ignore the benefits the employees received from the ESD. An employee injured by an unfair labor practice should be made whole for both lost wages and lost benefits. If an employee receives health insurance or retirement benefits through interim employment, they offset the amount the employer would otherwise owe for these benefits. Manual, Section 10552.4. But, as discussed in the text, the monetary value of the benefits does not offset the back wages the employer owes. In other words, interim benefits can offset payment for equivalent lost benefits, but they do not offset back wages.

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5. The County must compensate former County employees who worked at Options for payments to their retirement accounts they would have received had they worked at the County during the remedy period.

Wrongfully discharged employees should be made whole for lost employer contributions to pension funds or retirement plans. Manual, Section 10544.3. All of the unlawfully transferred employees participated in PERS while they worked for the County. AB required by the system, the County paid an amount equal to six percent of each employee's salary into the employee's PERS account; the employee paid an additional six percent of salary into the employee's PERS account. Former County employees who now work for Options are no longer public employees and can no longer participate in PERS. The County has not compensated former County employees for the PERS contributions the County would have made into these individuals' accounts had these individuals continued working at the County.

AFSCME argues that the County must make PERS contributions to make employees completely whole for the loss of their County employment. The County, however, contends that former County employees lost nothing. Options offers employees a 403b deferred compensation plan to which the employee may choose to contribute a percentage of salary. 14 Options then matches the employee contribution, up to six percent. According to the County, these employees actually benefitted from the change-because they were no longer required to pay six percent of their salary to their PERS account, their take-home pay increased.

We reject the County's argument because it is based on the premise that interim wages and contributions to a retirement plan are equivalent. As discussed above, retirement benefits and wages are separate elements in any back pay calculation. Manual, Section 10544.3 ("Retirement benefits are not offset by interim wages."). Accordingly, the County must compensate former employees for contributions to their retirement plans it would have made; increases in these individuals' interim earnings cannot be used to offset this liability.

The County also contends it is unnecessary to compensate former employees for any loss in retirement benefits because the Options 403b plan has a number of advantages over the PERS program. The County notes the advantages of this plan-an individual can choose the contribution amount and can change this amount if desired, and an individual can withdraw the amount contributed under certain circumstances.

14A 403b retirement plan is available to employees of nonprofit organizations and has many features similar to the more familiar 40 lk plan.

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Equivalent retirement benefits an individual earns through interim employment may be used as an offset against the employer's liability for payment of retirement benefits the individual would have earned had there been no unlawful action. Manual, Section 10544.3. The employer has the burden of proving this affirmative defense. Che111. Fab. Co1p., 275 NLRB 21, 21 (1985) e1ifd 111e111, 775 F2d 1169 (8th Cir 1985); 1Vlilleniu111 Maint. &Elec. Con tr., Inc., 344 NLRB 516, 517 (2000); OAR 115-035-0042( 6). See also Central School District, 17 PECBR at 800 (in compliance disputes, the complainant has the burden of proving the gross amount of back pay due; the respondent has the responsibility to prove facts that mitigate its liability).

Accordingly, the County has the burden of showing that the retirement benefit offered to Options employees is an appropriate offset to the PERS benefit the County would have provided to these employees. To demonstrate that such an offset is appropriate, the County must prove that the Options 403b plan is equivalent to PERS. The County has failed to do so.

To determine if the 403b plan is equivalent to PERS, we take guidance from Section 10544.3 of the Manual. The Manual defines equivalence by example. It begins with the example of an unlawfully discharged employee whose former employer contributed to the Teamsters pension fund. In the first hypothetical, the employee obtains interim employment with a company that provides a profit-sharing plan. Contributions to the profit-sharing plan do not offset the liability for contributions to the Teamsters pension fund.

In the second hypothetical, the discharged employee obtains interim employment that pays into a different union's pension fund. These contributions do not offset liability for payments to the Teamsters pension fund.

In the third hypothetical, the employee obtains interim employment with a different company that also contributes to the Teamsters pension fund. These contributions are offset against the liability the original employer owes for lost pension and benefits.

These examples demonstrate that receiving some sort of pension or retirement benefit from interim employment does not guarantee an offset. An offset is appropriate only when there is substantial equivalence between the two plans. The County's PERS and Options' 403b plans are not equivalent. PERS is a defined benefit program whereas the 403b plan is a defined contribution program. The County also points out several other differences between the plans. If, as in the example from the Manual, contributions to one union's pension fund are not equivalent for offset purposes to contributions owed

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to a different union's pension fund, then contributions to a 403b plan are not equivalent to contributions to PERS. Even if a 403b plan could theoretically be equivalent to PERS in some circumstances, the County has failed to offer sufficient proof of such equivalence here. The 403b contributions do not offset the contributions the County owes to PERS.

6. The County properly included the value of gift cards and bonuses as part of the interim wages former County employees earned at Options during the remedy period.

When the County calculated interim earnings of former County employees who worked at Options during the remedy period, the County included the value of gift cards and bonuses employees received from Options. In effect, the County used the value of the cards and bonuses to offset its liability for back pay. AFSCME contends that the County erred in doing so. We disagree.

In calculating interim earnings, the NLRB includes additions to base wages such as premiums, tips, and bonus payments. Manual, Section 10552.1. Consistent with current NLRB practice, the County correctly calculated bonuses as part of Options employees' interim wages. We also conclude it is appropriate to consider gift cards, which have a monetary value, as an addition to base wages. Consequently, the County did not err when it included the value of these gift cards in computing former County employees' interim earnings.

ORDER

1. To calculate the monthly wages that former EI employees would have earned had they continued working for the County, the County will determine each employee's average monthly wage for FY 2005-2006. In calculating average monthly wages, however, the County will not include those months in which employees' wages were reduced because of the four-week unpaid furlough or three-day strike.

For example, if former EI employees' wages were reduced for two months in FY 2005-2006 because of the strike and furlough, the County will determine each employee's average wage by adding the remaining 10 months of wages and dividing this amount by 10.

2. The County will not include as interim wages any difference between the amount former EI employees paid for health insurance premiums at the County and the amount these employees paid for health insurance premiums at the ESD during the remedy period.

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3. The County will not include as interim wages the 6 percent contribution to PERS that the ESD picked up for former EI employees during the remedy period.

4. The County ·will compensate former EI employees for vacation time they would have received had they continued working for the County during the remedy period, from July 2007 through June 2010. 15

5. For each month of the remedy period, from June 2007 through July 2010, the County will make County employees who worked at Options whole for the contributions the County would have made to that employee's PERS account had the employee continued to work for the County.

6. The County ·will promptly pay each former employee the difference between back pay and benefits it already paid each former County employee and back pay and benefits as computed in accordance with this Order. The County will pay interest at 9 percent per annum on any such payments from the date each payment was due until it is paid.

DATED this __ day of September 2011.




15We explained the method for calculating lost vacation time in our first Supplemental Order, 23 PECBRat 667.

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OF THE

STATE OF OREGON

Case No. UP-016-11


AMALGAMATED TRANSIT UNION, DIVISION 757,

Complainant,

v.

TRI-COUNTY METROPOLITAN TRANSPORTATION DISTRICT OF OREGON,

Respondent.

) ) ) ) ) ) ) ) ) ) ) )

~~~~~~~~~~~~~~-)


On May 18, 2011, this Board conducted an expedited hearing. The record closed on June l, 2011, upon receipt of the parties' post-hearing briefs.

Michael Tedesco, Attorney at Law, Lake Oswego, Oregon, represented the Complainant.

Adam S. Collier, Attorney at Law, Bullard Law, Portland, Oregon, represented the Respondent.

OnAugust 11, 2010, theAmalgamated Transit Union, Division 757 (Union) filed an unfair labor practice complaint (UP-039-10) against the Tri-County Metropolitan Transportation District of Oregon (TriMet). As amended, the complaint alleged violations of ORS 243.672(l)(a),(b), and (e). TriMet filed a timely answer to the amended complaint.

On March 24, 2011, the parties agreed to bifurcate the claims in UP-039-10. One claim, that TriMet violated ORS 243.672(l)(e) by including new issues in its final offer, became a separate case, UP-016-11. At the parties' request, the Board granted expedited

1

consideration to UP-016-11. The other claims in UP-39-10 are being separately processed according to the regular procedures for hearing an unfair labor practice complaint.

The issue is: did TriMet violate ORS 243.672(l){e) by submitting new issues in its final offer that were not reasonably comprehended within, or logically evolved from, its last written proposal?

RULINGS

All n1lings were reviewed and are correct.

FINDINGS OF FACT

1. TriMet, a public employer and transportation district, and the Union, a labor organization, were parties to a collective bargaining agreement in effect from December 1, 2003 through November 30, 2009.

2. In 2007, the Oregon legislature amended the Public Employee Collective Bargaining Act (PECBA) to prohibit employees of mass transit districts, transportation districts, and municipal bus systems from striking. ORS 243.738(1).

3. Union officers and representatives include the following disclaimer in all e-mails sent to TriMet managers:

"OFFICIAL NOTICE: Because of cyber attacksATU 757 does not accept official notice via email from employers on matters involving collective bargaining, grievance timelines, member discipline or policy changes. If you intend to rely on the fact notice was sent, please mail that official notice or send your notice via facsimile machine. (503) 230-2589. Thank you." (Emphasis in the original.)

4. By letter dated September 14, 2009, TriMet General Manager Fred Hansen gave Union President Jon Hunt notice that TriMet wished to open negotiations for a successor collective bargaining agreement. By letter dated September 30, 2009, Hunt also notified Hansen that the Union wanted to open negotiations on a successor contract.

5. Some time during the first two weeks of September 2009, Hansen and Ronald Heintzman spoke about the upcoming Union contract negotiations. Heintzman is a former Union President and Business Representative. In 2002, he was elected Vice President of the International Amalgamated Transit Union (International). In

2

August 2009, he began serving as Executive Vice President of the International, a position he held until August 2010. Heintzman and Hansen had been involved in two previous Union contract negotiations-in 1998 and 2003. In these prior negotiations, Heintzman and Hansen met separately, and discussed and reached agreement on the major bargaining issues. They then brought their agreements to their bargaining teams, and the bargaining teams tentatively agreed to the terms that Heintzman and Hansen had reached.

Heintzman worked out of the International's Washington, D.C. office; he and Hansen met on September 22, 2009 when Hansen was in the D.C. area. At their meeting, Heintzman and Hansen discussed health insurance benefits; both knew that this would be the most important and most contentious issue in the upcoming negotiations. Hansen told Heintzman that because of the financial difficulties TriMet faced, TriMet needed to reduce the cost of health care benefits. Heintzman explained that the Union was strongly opposed to any reduction in current benefit levels.

6. On October 22, 2009, the parties met for their first formal negotiation session. Hansen did not attend this meeting, so TriMet Executive Director of Operations Steve Banta served as TriMet's spokesperson. Although Hansen planned to involve himself in negotiations, he and Banta thought it best if Hansen maintained some distance from the-table bargaining sessions. Accordingly, Banta and Hansen agreed that Hansen would not attend the first two bargaining sessions.

On October 22, the parties discussed ground rules and made no contract proposals. The ground rules to which they agreed included the following provisions:

"1. All proposals shall be in writing, or promptly reduced to writing if initially made verbally at the bargaining table.

"2. The parties agree to structure the negotiation to provide for major issues to be negotiated by the parties' respective principals at the 'Big Table' and all other negotiations to be dealt with by negotiating teams \vith subject matter experts at 'Small Tables.TJ

1 In the past, bargaining issues that involved a high degree of technical expertise to understand and resolve were referred to these "Small Tables." At the "Small Tables," representatives from each party, who had specialized knowledge of the issues under consideration, met and attempted to reach agreement. Any agreements made at a "Small Table" were then presented to the parties' bargaining teams. The parties did not use any 'Small Tables' during their 2009-2010 negotiations, however.

3

"3. The respective negotiating teams possess authority to bargain to a tentative agreement which each party will be willing to recommend to their respective principals at the 'Big Table'. All tentative agreements will be subject to final approval by the respective principals of the negotiating teams. Tentative agreements will remain tentative pending ratification of an overall agreement. Tentative agreements must be reduced to writing and initialed by the parties' authorized representatives.

"4. The District andATU each have authority to bargain to a tentative agreement which each is willing to recommend to the TriMet Board and to the membership of the ATU respectively. Any such tentative agreement is subject to review and approval, or rejection, by the TriMet Board and the membership of the Union.

"* * * * *

"6. The parties agree that bargaining is most effective when conducted at the bargaining table. Thus, each party agrees to not involve the press in bargaining matters. This agreement shall expire in the event the parties proceed to mediation. During mediation, each party reserves the right to issue press statements or to otherwise communicate with the press in a truthful manner independent of review or approval by the other party.

"*****

"9. The parties agree that the statutory 150-day bargaining period commenced on October 22, 2009. Proposals or counter proposals by either party shall be reduced to writing. No new proposals will be submitted by either party after the fourth bargaining session, except that each side reserves the right to modify any proposal or submit counter proposals during the course of bargaining on items already opened for discussion. Wholly new items may be allowed subsequent to the fourth negotiation session by written mutual agreement between the spokespersons."

7. On October 31, 2009, TriMet notified Union bargaining unit members that beginning January 1, 2010, bus or train operators caught texting or talking on their cell phones would immediately be discharged. This was a change in TriMet's disciplinary policy; prior to October 31, Union operators were not disciplined for cell phone use until

4

they received more than three complaints. A reporter for 171e Orego11ia11 newspaper interviewed Hansen and published an article about the policy on November 13, 2009. The reporter quoted Hansen several times in the article.

8. Union President Hunt and the other members of the Union bargaining team were angered by the November 13 newspaper article. They believed that by speaking to the reporter, Hansen violated the parties' ground rule that specified that neither party would "involve the press in bargaining matters." When the parties met to negotiate on November 20, 2009, Hunt accused Hansen of violating the parties' ground rules. Hunt and the other members of the Union team then ripped up copies of the ground rules to demonstrate that the Union believed they were no longer valid.

Hansen was not present at this meeting, and Hunt asked Banta if Hansen planned to attend. Banta replied that given the purpose of the meeting-to exchange proposals and ask questions to clarify the proposals-he had recommended that Hansen not attend. Hunt was unhappy about Hansen's absence, and questioned Banta's authority, since Hansen had served as TriMet's chief spokesperson in past negotiations. Banta explained that he had authority to negotiate for TriMet. At Hunt's request, Banta agreed to send Hunt proof of his (Banta's) authority to bargain.

The parties discussed TriMet's change in policy regarding cell phone use, and Hunt said that because of a lack of trust and a failure to communicate, relations between the two parties had broken down. The parties then talked about how to exchange proposals, and ultimately agreed to a mutual exchange.

9. On November 20, 2009, the Union proposed that the parties extend their current collective bargaining agreement for two years.

Also on November 20, TriMet made the follovving proposal:

"CONFIDENTIAL

"TRl-COUNTYMETROPOLITANTRANSPORTATIONDIS[T]RICT OF OREGON

"This is TriMet's initial contract proposal for provisions to be included in the New Working and Wage Agreement ('new WWA') [collective bargaining agreement] that ;vill replace the current WWA expiring on November 30, 2009.

"TriMet reserves the right to amend or modify its Proposal during negotiations and ;vill negotiate its Proposal and the terms and conditions of a new WW A in good faith. The citations to the provisions of the WW A

5

in this initial proposal are for ease of reference only to help facilitate negotiations and are not intended to limit discussion of the issues raised to only those cited provisions. TriMet is committed to striving for a fair and equitable outcome for both parties. We recognize that the negotiation for a new WW A is a process that will take a concentrated, continuous, and focused effort on the part of both TriMet and the ATU to reach mutual agreement on the issues. The negotiations will be governed by the applicable provisions of ORS Chapter 243 and other state law that may apply.

"Both parties must approach the negotiation in an open, respectful and transparent manner. TriMet believes that Labor negotiations involve frank, open, and oftentimes sensitive discussion, on a wide variety of issues, between representatives from TriMet and the ATU. The provisions of 2009 Negotiations Ground Rules mutually agreed to on October 22, 2009 shall also apply to our negotiations.

"Proposal # 1 [2]

"Article I. Section 3 - Adjustment of Grievances and Arbitration (Pages 5-9) REVISE

"Par. 1: ATU vvill become responsible for paying union officers to attend grievance hearings at all levels of the grievance process.

CHANGE "Par. 2-3: Revise grievance procedure to fewer steps:[3

]

"1. Eliminate the prefiling conference as Step 1 from the grievance procedure. DELETE

2The parenthetical page numbers in each proposal refer to the corresponding page in the parties' expired contract.

3The parties' 2003-2009 contract provides for a multi-step grievance procedure. These steps are: Step I-an informal meeting of the grievant, Union representative and supervisor; Step II-submission of the grievance to the "appropriate Department Director"; Step III-submission of the grievance to a Union-TriMet Grievance Committee; and Step IV-submission of the grievance to an arbitrator. In addition, the expired contract established a Joint Labor Relations Committee (JLRC); one of the duties of the JLRC was "[t]o attempt to resolve/settle grievances that have been considered by the grievance committee and have been moved to and are pending arbitration."

6

"2. Increase the District's time to provide a written answer to the Association from 7 days to 15 days after the date the grievance was first heard by management. CHANGE

"Par.4: Keep expedited arbitration as an option instead of formal arbitration. RETAIN "Par. 5: Use regional arbitrators instead of Federal Mediation and Conciliation Service (FMCS). CHANGE

"Proposal #2 "Article I. Section 9 - Health and Welfare Benefits (Page 17) DELETE "(See also, Retiree Benefits Summary) (Page 138) ALSO DELETE

"The provisions relating to health and welfare benefits need to be rewritten. TriMet will provide to all active union employees health coverage that is consistent with plan design and coverages provided to all other active TriMet employees. TriMet agrees to advise and discuss with the ATU prior to implementing any plan changes.

"Proposal #3 "TriMet Direct Pays to ATU "Article I, Section 7, Par. 2 - Benefits Coordinator (Page 19) DELETE "Article I, Section 19. Par. 12 - Child Care/Elder Assistance Program

(Page 33) DELETE "Article I, Section 19. Par. 13-PortlandActivities Bus (Page 34) DELETE "Article I, Section 19, Par. 14 - Transit Exchange Program

(Page 34) DELETE

"Proposal #4 "Article I, Section 12, Par. 2, b.(5) - Continuous Service Definition

(Page 26) REVISE

"Proposal #5 "Article I Section 13 - Seniority Provisions (See Par. 1) (Page 27)

CHANGE/CLARIFY

"Any union employee promoted to a non-union position will retain seniority as a union employee for a period not to exceed two (2) years from the effective date of the promotion. After a period of two years, the employee no longer retains any union seniority or the right to return to their former union position.

7

"Proposal #6 "Retirement and Permanent Disability Plan ADD

"All employees hired on or after January l, 2010 are only eligible for the TriMet Defined Contribution Plan for Union Employees. Vesting Period for the Defined Contribution Plan for Union Employees: Five (5) years of continuous service with the District. Those employees that leave TriMet before they vest in the DC Plan will have all of their employee contributions returned.

"The parties also need to discuss the qualifications for full retirement benefits.

"Proposal #7 "Article II, Section 3 - Station Agents/Clerks (Pages 57-58) REVISE

"Par. 5 - Change contract language to make the Chief Station Agent an appointed position through a competitive selection process.

"Proposal #8 "Article III, Sections 11. 12, 15 - Rail Maintenance Apprentice Programs (Pages 86 and 90) REVISE

"Combine light rail apprentice and training programs LRV and MOW into one section.

"Eliminate Section 15, obsolete language in Par. 7, a. 1, 2 regarding passed up mechanics. All passed up mechanics have received a chance to enter an apprenticeship program. DELETE

"Keep language that says journey mechanics lose longevity pay when they bid into a new apprenticeship and must establish seniority as a new journey worker before being eligible for longevity pay. RETAIN

"Revise Article III as specified by the February 10, 2009 TriMet and ATU Memorandum of Agreement for consolidation of light rail Fare Technician and Communications Technician. ADD

"Employees who have left an apprenticeship for any reason prior to earning journey level status forfeit the right to re-enter apprentice programs for 5 years. In individual cases where the facts and circumstances surrounding

8

the employee's voluntary separation from the program mitigate the separation, the General Manager may grant an employee re-entry into apprenticeship program waving the 5-year requirement. CHANGE

"Proposal #9 "Article III. Section 9 and 14: Article IV. Section 1; and Supple1nental WWA relating to Contracting Out

(Pages 83, 87, 103, and 125-129) REVISE

"Consolidate Bus Maintenance, Rail Maintenance, and Facilities Maintenance contracting out provisions into a single section of the WW A.

CHANGE

"Proposal # 10 "Article III, Section 17 - Bus Maintenance Overtime (Pages 95-98)

REVISE

"Develop new overtime and call-out language to include all maintenance operations: Bus Maintenance, Rail Equipment Maintenance, Maintenance of Way and Facilities Management.

"Proposal # 11 "Article V. Section 2 - General (Page 106) CHANGE

"The District has the option to contracting-out the money room function.

"Proposal #12 "Article VI. Section 1 Par. 6 - Overtime (Page 108) REVISE

"Clarify how overtime is assigned in Customer Service: TIO and Holladay Street facilities, etc.

"Proposal #13 "Article VII. - Options Planning and Scheduling Department

(Page 111) REVISE

"Incorporate language from 9/7 /2004Agreement between Fred Hansen and Al Zullo that the Computer Technology Specialist will become a non-represented position when either of the current incumbents retires or leave TriMet employment.

9

"Proposal # 14 "Article VIII- Pay Schedule (Operations Division) (Page 121) DELETE

"The COLA should be deleted. In its place, agreement on periodic and agreed upon pay adjustments will be added.

"SEE ALSO Retirement Benefits Summary Pensions (Page 138) CHANGE Retiree pay shall be adjusted only on the basis of 90% of CPI.

"Proposal #15 "Memorandum of Agreement - Emergency Operations

(Page 142) REVISE

"Emergency operations - further clarify this language.

"Proposal # 16

"Memorandum of Agreement Supplemental Working and Wage Agreement by and Between Tri-County Metropolitan Transportation District of Oregon and Division 757, Amalgamated Transit Union Related to Portland Streetcar Special Project (Pages 143-150) REVISE

"Incorporate Supplemental WWA Related to Portland Streetcar, as an Article of the WW A. REVISE

"Streetcar classifications: Earning Streetcar seniority is conditional on completing Streetcar training. ADD

"Transfers from Streetcar are at next regular signup following initial commitment (this is established practice). ADD

"Increase initial commitment for Streetcar vehicle mechanics from 1 year to 2 years. REVISE

"Transfers to or from Streetcar are not permitted when on time loss or other discipline status. ADD

"Incorporate 8/22/08 side letter regarding fill-in Operators. ADD

"Incorporate 6/11/04 side letter regarding Streetcar Training Maintenance Technician. ADD

10

"The District also has a number of other issues that will be addressed in the small groups such as obsolete/redundant language along with review of the viability of existing side letters (Article I, Section 19, Par. 10, Page 33)."

10. The parties scheduled a bargaining session for December 3, 2009. By letter dated November 30, Hunt cancelled the meeting. Hunt explained that the Union would not be ready to meet in December because it needed more time to analyze TriMet's health benefits proposal. Hunt also asked TriMet to provide him with information and a number of documents regarding health benefits and premium costs.

11. On December 1, 2009, Hunt wrote all bargaining unit members and retirees about the negotiations process. In his letter, Hunt criticized TriMet's proposals and its treatment of employees, and asked that members sign an attached letter to the Governor expressing "no confidence" in Hansen.

12. By letter to Hunt dated December 1, 2009, Banta urged Hunt "to keep the previously scheduled December 3 bargaining session." Banta told Hunt that Hansen would attend the December 3 session.

13. By letter to Banta dated December 2, 2009, Hunt expressed the following concerns about Banta's role:

"[Y]ou will recall that given your likelihood of leaving TriMet[4]

employment in the very near future, we expressed concern that you were serving as TriMet's chief negotiator. You indicated that Fred Hansen would be addressing our concern in writing. His response was not received. You also state that Fred Hansen will be at the bargaining table on the 3'd but it is our understanding that he is scheduled to be deposed on the 3'd."

14. On December 4, 2009, Hansen talked with Hunt about scheduling another bargaining session. Hansen reminded Hunt that the ground rules specified that no new proposals could be introduced after the fourth bargaining session, and Hunt indicated that he understood and would comply with the ground rules. When Hansen pressed Hunt to schedule a bargaining session in January, Hunt was unwilling to do so. Hunt said that the next step should be for him, Hansen, and International Vice-President Heintzman to meet and discuss bargaining issues.

4Banta left TriMet in January 2010.

11

Hunt did not consider Heintzman to be the Union's official representative at this stage of the negotiations process. Hunt understood that if he wanted Heintzman's official assistance with bargaining, he must make a written request to the International for Heintzman's help. Hunt believed, however, that if Heintzman and Hansen reached agreement on the most important issues, the TriMet and Union bargaining teams would (as they had in the past two negotiations) tentatively agree to their agreements.

Heintzman, Hunt, and Hansen scheduled a meeting for January 14, 2010.

15. In a December 31, 2009 e-mail, Heintzman asked Hansen for information about pension benefits and current and proposed health insurance premium costs for active or retired employees based on a number of different plan designs. Heintzman cautioned that "[a]lthough I am requesting this information, it does not point to any clear idea or position the union may have regarding insurance and pension * * *."

16. On January 14, 2010, Heintzman, Hunt, and Hansen met. They discussed various approaches to health insurance in an attempt to find plans and benefit levels that would be acceptable to both the Union and TriMet.

17. Some time in January 2010, Heintzman and Hansen talked about the possibility of providing Union bargaining unit members with the same health insurance plans as those that the Lane Transit District (LTD) provided to employees.

18. On February 11, 2010, Hansen sent Heintzman an e-mail, which he copied to Hunt. In his e-mail, Hansen provided Heintzman with the health insurance information he had requested. Hansen attached spreadsheets from the current insurance providers for Union bargaining unit members, Regence and Kaiser, that showed

"the percent change in monthly premiums if certain plan design Options are selected. I have also enclosed the latest numbers that outline the cost for union retirees in each health care plan and a spreadsheet on [sic] that shows how the cost of union retirees has changed from 2005 through 2010. Lastly, enclosed is a chart shuwing utilization of Rx drugs by categories and a spreadsheet that has cost comparison data for the union and management plans at TriMet and LTD [Lane Transit District)."

Hansen also raised the following "other issue" in his e-mail:

"We are just launching another round of budget reductions for FYI 1 (July l, 2010- June 30, 2011). The reductions are about $27 million (this is on top of the $31 million we reduced in the current fiscal year). We have

12

reduced the amount of cuts we need to make by about $7 million by applying ARRA funding to offset preventative maintenance costs. By taking additional reductions on the administrative side (about 10% since the beginning of the recession in management head count compared to about 4% for the union ranks). The additional $20 million ($27 million minus $7 million ARRA) translates to needing $8. 7 million reductions in direct service on the street (something that is always the last place we want to reduce). It is hard to imagine that we can achieve this level of service reductions without layoffs. An alternative would be for ATU to agree to a freeze on the salary increase due June 1, 2010. As you know, inflation was essentially at 0% if not negative meaning members would not be giving up any buying power. This would reduce the necessary service reductions by about half. Is this possible?"

19. In an e-mail dated February 11, 2010, which was copied to Hunt, Heintzman responded to Hansen:

"Thanks Fred. We will analy[z]e the iinformatioin [sic] you provided. Preliminarily, though, we would not be interested in the LTD plan design. Any changes, if agreed to, would be based on existing plans currently in place for TriMet employees. Any wage freeze would have to be approved by the membership, and and [sic] such, would most likely be part of a total agreement. That would be a local decision."

20. In a February 25, 2011 e-mail to Heintzman, which was copied to Hunt, Hansen explained TriMet's position as follows:

"To help ensure that we move forward on a new WW A, our goal, as indicated in our Initial Proposal, is that the health care plan design, including medical, hospital, prescription drugs, optical, and other health care benefits, be consistent for both union and management employees. We recognize that it is essential that our workforce receive quality benefits. For our total compensation program to remain sustainable, we need to have a benefit program that reflects a partnership ·between TriMet, employees and future retirees where each party shares in the responsibility for the cost of health benefits.

"TriMet is not proposing that health benefits for retirees currently on Medicare be changed. Rather, on a going forward basis, we are proposing a health care plan design for active union employees and retired union employees under the age of 65 that is the same as the management plan

13

design, and that changes to union plan design remain consistent with the changes in the management plan design. This means that the proposed union and management health plan design would have annual deductibles, co-payments, and co-insurance for both medical, hospital, RX, and other health care benefits, with the same annual limit on out of pocket expenses. (The specifics of the management plan in these regards are detailed in the spreadsheet contained in the background information I provided on February 11, 2010). For future management and union retirees that reach the age of 65 and become eligible for Medicare, we propose a fL'Ced monthly payment in lieu of TriMet provided insurance. For union employees, we clearly understand that the fixed monthly payment is a matter that we would bargain with you.

"I am also not proposing that all of the agreed upon plan design changes occur immediately. Within the new WW A [collective bargaining agreement], we are willing to negotiate a phased approach over time that gives current employees a clear outline of any changes in health care benefits and the effective dates of these changes. This phased approach would be part of the WWA and would not change during its term." (Emphasis in original.)

21. Heintzman responded to Hansen on February 25, 2010, with the following e-mail:

"My view of a proposal that members would accept in lieu of arbitration, unfortunately, falls significantly short of the expectations you put forward. I will forward in a few days, an outline of what I 'think' might be acceptable from the union's standpoint. I am afraid that it won't come close to what your [sic] after, and I at this point believe that the contract will have to be settled by arbitration."

22. On March 8, 2010, Heintzman sent Hansen the following e-mail, which he copied to Hunt:

"Sorry for the delay. In consultation with the local union leadership, the following would be in the framework for an agreement to avoid arbitration. It is made with the understanding that the membership would have to approve it, in lieu of moving the contract dispute to arbitration. Based on where the parties are at this point, the local is interested in shaping an agreement with only the changes outlined below, and because of the magnitude of these changes, feel that including any other items would hinder their chance of winning membership approval.

14

"1. Put a $100 single and $300 family deductible, or a $200 single and $500 deductible in both medical plans offered. This would require an amount equal to the deductible deposited annually by the employer, into a VEBA(5

) account for each employee. "2. Increase prescription co-payments by $5.00 over current co-pay

requirements. "3. For all future retirees (a date to be established by mutual

agreement of the parties) would receive the same health care plan benefits as received by active employees. In other words, what ever the level of benefits are for active employees at the time an employee retires, would be what that retired member would receive, and would change whenever there was a change to the active employee plans.

"4. Increase the retiree sick leave conversion to pension to $0.35 for each unused hour, increased by as [sic] additional $0.05 each year of the contract thereafter. (6

)

"5. Union would agree to a one to six year agreement, employer's choice.

"All other contract items remain unchanged, including uninterrupted continuation of sbc month wage increases/adjustments."

23. Although Hansen and Heintzman planned to meet on March 19, 2010, they were unable to do so because Hansen had urgent and unexpected business to which he needed to attend.

24. In a March 22, 2010 e-mail, in which he identified the subject as "Proposal" and which he copied to Hunt, Hansen responded to Heintzman as follows:

"As a starting point, I do not think that the specific changes that you made accomplish the goals that I outlined in my February 25 e-mail. I recognize

5VEBA (Voluntary Employees Beneficia1y Association) is a voluntary employees' association under Internal Revenue Code 50l(c)(9) that pays life, sick, accident, and similar benefits to members or their dependents, or designated beneficiaries.

6Article I, Section 9, Health and Welfare Benefits, paragraph 5(d) in the parties' 2003-2009 contract specified that employees with at least 10 years of continuous service who retired or suffered a permanent disability would have unused sick leave converted to provide additional monthly pension benefits at the rate of $0.25 per each hour of unused, accrued sick leave.

15

that your proposed changes expanded the discussion to other WW A provisions and I want to be responsive to these other changes. Without repeating everything in our Initial Proposal, I'll highlight the key provisions of TriMet's Initial Proposal we need to discuss:

"1. We need to address health care costs in a meaningful way. TriMet will provide to all active union employees health coverage with plan design and coverages provided to all other active TriMet employees and that is consistent ;vith the health plan design for active management employees. As for TriMet employees that retire in the future, we need to discuss how we are going to handle this issue on a going forward basis. For employees over 65, we are proposing they would, as they are now, be required to have Medicare A and B and would have a choice to add Medicare D coverage. TriMet's supplemental insurance for employees over 65 would be replaced by a fixed monthly sum. For employees under 65, we propose providing these employees the same health plans as active employees. For anyone retiring before 65 we are proposing that the District pay up to three years of healthcare coverage. If they want more they would need to pay the District's rate. I have said before, we are not proposing to change the retirement benefits for current retirees and would be very amenable to a phased approach for the group of employees approaching and eligible for retirement.

"2. As is the case with management employees, all new union employees, hired after a certain date, to be agreed upon, will be eligible for a TriMet Defined Contribution Plan. The current Defined Benefit plan for union employees would be closed, as is the Defined Benefit Plan to management employees.

"3. With respect to the current COLA, we propose periodic pay adjustments during the term of the new WWA in lieu of any COLA's.

"4. It would also be very beneficial to agree upon other proposals and issues such as how long a union employee promoted to a nonunion position will retain seniority as a union employee, how we can streamline and make more efficient and deliberative the grievance process and how the apprenticeship and training programs can be made better for all those that participate.

16

"5. By way of specific comment on one element of your proposal; increasing the retire [sic] sick leave conversion. On a present value (PV) basis, assuming the pension plan's assumed earning rate of 8%, this would cost over $34 million dollars. I am not sure that you have calculated the cost of your proposal but I would be pleased to review your analysis."

25. Heintzman and Hansen decided that they needed the assistance of a mediator. By letter dated April 28, 2010, Hunt wrote Heintzman and requested his assistance for upcoming mediation sessions.

The parties agreed to employ a private mediator in addition to the state-appointed mediator, and obtained the consent of the State Conciliator to do so. By letter dated May 4, 2010, to the State Conciliator, TriMet General Counsel M. Brian Playfair requested mediation and confirmed that the parties understood "it is acceptable for the parties to use Paul Stuckenschneider as a mediator while also utilizing the ERB conciliation process."

26. The parties participated in a total of five mediation sessions in June and July 2010; two of these five sessions were conducted by telephone. Heintzman participated in all but one of these sessions. The parties reached impasse at their July 12 meeting. By letter to the State Conciliator dated July 13, 2010, TriMet General Manager Neil McFarlane7 declared impasse.

27. By letter dated July 21, 2010, TriMet submitted its final offer and cost summary to the State Conciliator. The final offer proposed the following changes in the 2003-2009 collective bargaining agreement:

Cover Page & Term of Agreement (Article I, Section l, Par. 1) Change effective dates of the contract to December 1, 2009 through November 30, 2012.

Joint Labor Relations Committee [JLRC] (Article I, Section 1, Par. 6) Schedule meetings of this committee "frequently as mutually agreed." Under the expired contract, the committee met monthly. Make the Union responsible for paying the cost of its members' attendance at the meetings; under the expired contract, TriMet paid the cost of two members' attendance.

70n July 1, 2010, Mcfarlane replaced Hansen as TriMet General Manager.

17

Adjustment of Grievances & Arbitration (Article I, Section 3, Par. I) Make the Union responsible for paying its representatives who participate "in any step of the grievance procedure." Under the expired contract, TriMet paid the salary of one Union representative participating in Steps 1 through III of the grievance procedure.

Health and Welfare Benefits (Article I, Section 9, Par. 1-3 and 5) Specify that during the term of the agreement, benefits for active employees and retirees will be provided in accordance with the provisions of the "Active Employee Health Benefits Summary," below.

Provide retirees who retire on or after February 1, 1992 and before April l, 2012, with the same health benefits as active employees. The expired contract provided all post-1992 retirees with these benefits.

Provide retirees who retire on or after April 1, 2012 vvith the same coverage as active employees for three years or until Medicare eligible, whichever first occurs. After that date, pay each retiree $500 per month toward the cost of health benefits for the retiree and dependents. For retirees hired by TriMet after April 1, 2011, the monthly payment will be four percent of the fixed monthly amount paid to post-April l, 2012 retirees multiplied by the retiree's years of service.

Eliminate reimbursement to retirees for the cost of monthly Medicare premiums. Under the expired contract, TriMet reimbursed retirees for the cost of these premiums.

Require that TriMet pay the Union $500 per month for the position of Benefits Coordinator; under the expired contract, the monthly amount TriMet paid for this position increased each year of the contract-to $1,400 in 2007. Funds for the position will be held in a dedicated account and subjected to periodic TriMet audits. If the Union uses the funds for anything other than the Benefits Coordinator position, TriMet's contributions will end. The expired contract imposed no conditions on payments for the Benefits Coordinator position.

Require that TriMet contribute $65,000 to the Union-operated Employee Assistance Program. Under the expired contract, TriMet increased the amount of its contribution by $2,000 each year-up to $65,000 in 2008.

Add domestic partners to retiree benefits coverage, and add domestic partner to the list of relatives for whom an employee may use sick leave.

18

Seniority Provisions (Article I, Section 13, Par. 1) Allow a Union employee promoted to a non-Union position to retain seniority acquired in the employee's last Union position for five years from the date of promotion. Under the expired contract, an employee never lost Union seniority after a promotion.

Recreation Trust Fund and Child Care/Elder Assistance Program (Article I, Section 15, Par. 4 and 12) Require TriMet to make a $55,000 annual contribution to the Recreation Tnist Fund and the Childcare/Elder Assistance program. Under the expired contract, TriMet's contributions to these funds increased annually-up to $55,000 to the Recreation Trust Fund in 2008 and $65,000 to the Childcare/Elder Assistance program in 2008.

Transit Exchange Program (Article I, Section 15, Par. 14) Eliminate TriMet's monthly payment to the Union for a program that provided for exchange of information and ideas between national and international transportation association executive officers.

Pay Schedules (Article VIII) Delete a minimum progression pay schedule for new hires.8

Beginning December 1, 2009, increase wages every six months by the same percentage amount as the Portland CPI-W, with a minimum increase of one percent and a maximum increase of five percent. The expired contract provided the wage increases every six months based on the Portland CPI-W, but specified minimum increases of three percent and maximum increases of five percent.

Pension Plan and Permanent Disability Agreement (Section 1, Par. 2-17) Delete all references to "full" retirement benefits throughout the article.

Require that an employee must be 55 with 30 years of service to retire. The expired contract allowed an employee to retire at any age as long as the employee had 30 years of service, and specified that this contract provision expired vvith the contract and must be renewed in successive agreements.

8Article 1, Section 19 of the expired contract contained an identical minimum progression pay schedule for new hires.

19

Require that a mini-nm operator have a minimum of two years service as a full-time regular operator before becoming eligible for full-time retirement benefits.

Annually increase retirement pay for existing retirees by an amount equal to the percentage increase in the CPI-W for the preceding year, with a maximum increase of seven percent. The expired contract increased retirees' pay by the same amount as active employees' wages were increased for the preceding year.

Annually increase retirement pay for employees who retire on or after April 1, 2011, by an amount equal to 90 percent of the increase in the CPI-W for the preceding year, with a nuudmum increase of seven percent.

Require that only employees hired before April 1, 2012, would receive retirement pay computed in accordance with the provisions of the expired contract, i.e., calculated by multiplying $42 per month by each year of the employee's service.

Require that employees hired after April 1, 2012, participate in the same Defined Contribution Plan in which all non-union TriMet employees participate. Under the expired contract, all employees participated in a Defined Benefit Plan.

Active Employee Health Benefits Summary Incorporate into the agreement by reference specific plan designs and coverages provided by Regence and Kaiser; these plan designs and coverages are the same as those provided to non-Union TriMet employees.

Require employees enrolled in Regence plans to contribute the following amounts toward the cost of their monthly insurance premiums:

Employee only Employee & Spouse Employee & Children Employee & Family

-$0 -$30 -$25 -$50

Provide that TriMet pay 100 percent of the premium costs for employees enrolled in Kaiser plans. Under the expired contract, no bargaining unit employees paid any portion of their monthly insurance premiums.

20

Eliminate payment for continued medical coverage to widows, widowers, and orphans of retirees. The expired contract obligated TriMet to pay medical coverage after a retiree's death to the retiree's spouse and dependents; length of the coverage varied, depending on the date of the retiree's death.

CONCLUSIONS OF LAW


2. TriMet violated ORS 243.672(l)(e) by introducing proposals in its final offer concerning new issues.

Introduction

This case arose from the failure ofTriMet and the Union to reach agreement on a successor to their 2003-2009 collective bargaining agreement. The parties began their negotiations with two relatively unproductive table bargaining sessions in October and November 2009. At the suggestion of Union President Hunt, International Vice President Heintzman involved himself in the parties' bargaining. From December 2009 through March 2010, Heintzman and TriMet General Manger Hansen met and exchanged e-mails in an attempt to resolve major contract issues. Their efforts did not produce an agreement, and the parties proceeded to mediation. Mediation was unsuccessful and the parties declared impasse. As required by law, the parties submitted their final offers to the mediator within seven days of their declaration of impasse. ORS 243.650(11) and 243.712(2)(b). The Union alleges that TriMet breached its good-faith bargaining duty by including several proposals on new issues in its final offer.

A public employer violates its duty to bargain in good faith under ORS 243.672( 1 )(e) if it presents proposals on new issues in its final offer. Amalgamated Transit Union, Division 757 v. Rogue Vallry Transportation District, Case No. UP-80-95, 16 PECBR 559, 581-82 (1996). An issue is a "general subject matter of bargaining. "A proposal presents new issues if the proposal was not "reasonably comprehended within" or did not "logically evolve" from the party's prior position. Roseburg Educatio11Associatio11 v. Roseburg School District No. 4, Case No. UP-26-85, 8 PECBR 7938, 7957 n 8 (1985).

Our approach to determining whether a final offer contains new issues is usually straightforward. We compare a party's final offer with the party's prior proposals and decide whether the proposals in the final offer logically evolved from or were reasonably

21

comprehended ·within these prior proposals. Here, our analysis is more problematic because the parties do not agree what proposals TriMet made before submitting its final offer to the mediator.

The Union contends that the only proposals TriMet made before its final offer were presented on November 20, 2009, at the parties' last table bargaining session. TriMet, however, asserts that the parties' bargaining did not end on November 20. According to TriMet, Heintzman and Hansen continued the parties' negotiations from December 2009 through March 2010. TriMet contends that the proposals in its final offer logically evolve from or are reasonably comprehended within proposals that Hansen made to Heintzman during these December-March discussions.

The Union disagrees with this description of Hansen and Heintzman's discussions. The Union contends that Heintzman and Hansen never "bargained"; instead, the Union claims that they engaged in "interim discussions." The Union asserts that the parties' ground rules restricted bargaining to table bargaining sessions at which the parties' authorized representatives met and exchanged written proposals. The Union contends that " [ n] one of the communications between Mr. Heintzman and Mr. Hansen" fulfill these requirements: Heintzman and Hansen did not participate in table bargaining sessions, did not have authority to negotiate for their respective parties, and did not make written proposals.

So, before we consider whether any of the proposals in TriMet's final offer are new, we must first answer two questions: (1) did Heintzman and Hansen "bargain" during their December 2009-March 2010 discussions? and (2) did Hansen make proposals for TriMet during these discussions? We begin our analysis by addressing the first of these questions-did Hansen and Heintzman bargain?

Heintzman and Hansen's December 2009 to March 2010 Discussions

In support of its argument that Hansen and Heintzman did not bargain, the Union cites the following ground rule to which the parties agreed on October 22, 2009:

"The parties agree to structure the negotiation to provide for major issues to be negotiated by the parties' respective principals at the 'Big Table' and all other negotiations to be dealt with by negotiating teams ·with subject matter experts at the 'Small Tables."'

According to the Union, this rule restricts negotiations to "Big Table" bargaining sessions. The Union's interpretation of this ground rule is mistaken, however.

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Written and executed ground rule agreements are enforceable contracts. City of Salem JJ. Intemational Association of Fire Fighters, Local 314, Case No. C-152-80, 5 PECBR 4237, 4242 (1980). As a result, we apply well-established rules of contract interpretation to determine the meaning of a ground rule. We use a three-step process to interpret contract language; our goal is to determine the parties' intent. We begin by analyzing the text of the language at issue in the context of the entire contract; if the provision is unambiguous, our analysis ends and we enforce the contract language according to its terms. Eugene Police EmplifYees' Association v. City of Eugme, Case Nos. UP-038/41-08, 23 PECBR 972, 996-997 (2010) (citing Yogman 11. Parrott, 325 Or 358, 937 P2d 1019 (1997)). If the language at issue is ambiguous, we proceed to the second step and examine extrinsic evidence of the parties' intent such as past practice and bargaining history. If the language remains unclear after this second step, we apply appropriate maxims of contract construction. Id.

We start by analyzing the language at issue, the statement that "[t]he parties agree to structure the negotiation to provide for major issues to be negotiated by the parties' respective principals at the 'Big Table."' Unless the contract defines a term, we give words their ordinary meaning. Federation of Oregon Parole and Probation Officers, Washington County Chapter v. Washington County, Case No. UP-29-08, 23 PECBR 627, 634 (2010). Courts often rely on dictionary definitions to provide the possible meanings of words in their common usage. State v. Moore, 174 Or App 94, 98, 25 P3d 398 (2001). The dictionary definition of "provide" applicable here is: "to take precautionary measures: make provision - used with against or for * * *." Webster's 17iird New International Dictionaiy 1827 (unabridged ed 2002) (emphasis in original). Relevant definitions of "provision" are: "the act or process of providing for** *the quality or state of being prepared beforehand * * * a measure taken beforehand: preparation * * *."Id.

Using these definitions, we find no ambiguity in the language under consideration. We read this ground rule as an agreement by the parties to structure their negotiations "to provide for," i.e., make provision for, negotiation of important issues at table bargaining sessions. "Make provision for" means the parties will take "measure[s] beforehand" or make preparations for these sessions. Rather than limiting negotiations to table bargaining sessions, the language specifies that the parties vvill take measures to prepare for these sessions.

The parties complied with their ground rules when they referred major issues to Heintzman and Hansen to resolve in private discussions away from the bargaining table. In so doing, they made "provision for," i.e., preparations for, table bargaining. Had Heintzman and Hansen reached agreement, their agreement would have been referred

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to their bargaining teams for tentative agreement at the "Big Table." This process was similar to the one used in two prior contract negotiations in which the parties' bargaining teams tentatively agreed to terms Hansen and Heintzman had reached in private discussions. The only difference between 2009-2010 negotiations and previous negotiations was the result-Heintzman and Hunt did not reach agreement in 2010.

Thus, the parties' ground ntles did not restrict negotiations only to discussions at the parties' table bargaining sessions. 9

We turn next to the Union's contention that Hansen and Heintzman lacked authority to negotiate for their respective parties. To determine whether an individual has actual or apparent authority to represent a party in collective bargaining matters, we apply common law agency principles. Tri-County Metropolitan Transportation District of Oregon (Tril"Vfet) v. Amalgamated Transit U11io11, Divisio11 757, Case No. UP-55-05, 22 PECBR 506, 546 (2008). Actual authority is created when a principal expressly confers it on an agent. Apparent authority is created by conduct of the principal which, when reasonably interpreted, causes a third party to believe that the principal consented to have the apparent agent act for the principal. Id. (citing cases).

Here, the evidence shows that Heintzman had no actual authority to represent the Union during his December 2009-March 2010 discussions ·with Hansen. The Union did not confer actual authority on Heintzman until April 26, 2010, when Hunt wrote Heintzman and requested his assistance in mediation. There is no evidence, however, that TriMet was aware of Union and International rules that required a formal request for Heintzman's involvement in bargaining. To the contrary, a review of Union President and chief negotiator Hunt's conduct demonstrates that he led Hansen to reasonably believe that Heintzman had authority to negotiate for the Union.

9The Union also argues that another of the parties' ground rules restricted negotiations to formal table bargaining sessions. That ground rule states, in pertinent part:

"The parties agree that bargaining is most effective when conducted at the bargaining table. Thus, each party agrees to not involve the press in bargaining matters. This agreement shall expire in the event the parties proceed to mediation."

We do not read this ground rule as restricting negotiations to table bargaining sessions. The rule states that bargaining is "most effective" when conducted at the bargaining table, not that it is ou{y conducted at the bargaining table. In addition, the second sentence makes it clear that the rule is meant to prohibit either party from discussing "bargaining matters" with the press until mediation. The Union acknowledged this understanding of the rule when, at the parties' November 20 bargaining session, Hunt accused Hansen of violating the ground rule by discussing a change in disciplinary policy with a reporter.

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After the parties' second (and last) table bargaining session on November 20, 2009, Hunt cancelled a planned December 3 session and refused to schedule another one. Hunt talked with Hansen and told him the next step in negotiations should be Heintzman's involvement. Hunt participated in a January 14, 2010 meeting with Hansen and Heintzman. Hunt received copies of Heintzman's e-mails to Hansen in which Heintzman requested information about health insurance plans, responded to Hansen's offers, presented a "framework for an agreement" for the successor contract, and agreed that the parties should proceed to mediation.

Hansen reasonably inferred from Hunt's actions-cancelling a table bargaining session and refusing to schedule another one, and calling for Heintzman's involvement in negotiations-that Hunt wanted to suspend table bargaining and allow Heintzman to negotiate for the Union. The parties' past practice supported such an inference. As discussed above, at least two previous contract settlements were achieved after Heintzman and Hanson resolved major issues and referred these terms to the bargaining teams for tentative agreement.

In addition, Hunt was fully aware ofHeintzman's discussions with Hansen. Hunt knew that Heintzman took significant steps in negotiations-asking for and receiving information about health benefits, accepting and responding to Hansen's offers, and moving the negotiations dispute to mediation. Hunt never objected to anything Heintzman did, and never told Hansen that Heintzman's authority in bargaining was in any way limited. Based on what Hunt did (and did not do), Hansen reasonably concluded that Heintzman had authority to negotiate for the Union.

Regarding Hansen's authority to bargain, which the Union also challenges, the record is devoid of evidence that TriMet ever explicitly gave Hansen actual or exclusive authority to negotiate on its behalf. Hunt reasonably interpreted the conduct of TriMet's representatives as indicating that Hansen was TriMet's authorized negotiator, however. At the November 20 bargaining session, in which Banta served as spokesperson, Hunt questioned Banta's role in bargaining and asked why Hansen was not present. In response, Banta agreed to Hunt's demand for written proof that he (Banta) had authority to negotiate for TriMet. Banta never gave Hunt the requested proof. Instead, Banta assured him that Hansen would attend the December 3 bargaining session. Based on Banta's statements and actions, Hunt reasonably concluded that Hansen had authority to negotiate for TriMet.

Contrary to the Union's assertion, then, Hansen and Heintzman bargained when they met and exchanged e-mails during the period from December 2009 through March 2010. The parties' ground rules permitted their negotiations away from the bargaining

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table, and Hansen and Heintzman had apparent authority to represent their respective parties. We next consider what proposals, if any, Hansen made on behalf of TriMet during these discussions.

TriMet's Pre-Impasse Proposals

The Union asserts that Heintzman and Hansen never presented proposals to one another. According to the Union, Heintzman and Hunt's "interim discussions" involved offers of "approaches" to settling the contract dispute that the Union characterizes as "what ifs" or "walks in the park." The Union argues that these "what ifs" were non-binding offers to settle contract issues; if not accepted, they disappeared from the process as if they had never been made and the parties reverted to previously held positions. Contrary to the Union's assertion, however, we conclude that Hansen offered proposals in the course of his discussions with Heintzman.

We begin our analysis by considering the definition of a proposal, a word with both legal significance and a well-accepted meaning in labor relations. Southern Oregon Bargaining Council/Rogue RiJJer Educatio11Associatio11/0EAJNEA JJ. Rogue RiFer School District 35, Case No. UP-62-09, 23 PECBR 878, 879 (2010) (Order on Reconsideration). It is used in the PECBA to describe what the parties exchange to begin their bargaining; under ORS 243. 712(1), the 150-day period of good-faith negotiations begins "when the parties meet for their first bargaining session and each party has received the other party's initial proposal." According to Robert's Dictionmy of Industrial Relations 626 (Fourth ed 1994), a proposal

"[g]enerally applies to the specific offer made by either management or labor during collective bargaining. The proposal may be on the record or off the record, it may be the basis for discussion, or it may be submitted as the only offer one side is willing to accept."

Under the PECBA, a proposal is an offer oflanguage to be included in a collective bargaining agreement. See Portland Firefighters Association, Local No. 43, IAFF JJ. City of Portland, Case No. UP-45-90, 12 PECBR 532, 545 (1990) (a union representative's demand that the city retract a general order is not a proposal, since the demand included "no mention of any proposal for inclusion in a new agreement.") (footnote omitted). Consistent with general contract principles of offer and acceptance, an enforceable contract is typically formed when a party proposes language to be included in a collective bargaining agreement and the other party accepts it. Rogue RiJ1C1~ 23 PECBR at 879.

The Union charges that TriMet unlawfully made new proposals in its final offer. So, to determine the validity of the Union's claims, we must decide if Hansen and

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Heintzman exchanged proposals during their discussions. We conclude that they did: they proposed language to be included in the successor contract, and they explicitly identified or referred to their offers as proposals.

In his February 25, 2010 e-mail to Heintzman, Hansen explained that for the successor contract, TriMet is "proposing" that active employees and retirees under 65 receive the same health care plans as TriMet management employees. Hansen also stated that TriMet "propose[ s]" that retirees on Medicare receive a fL'<:ed monthly payment in lieu of TriMet provided insurance.

Hansen labeled his March 22, 2010 e-mail to Heintzman a "Proposal." Hansen listed specific changes in health care and retirement benefits that TriMet sought to include in the successor contract, and emphasized his desire "to agree upon other proposals and issues." Hansen also characterized Heintzman's March 8 offer as a "proposal,'' and indicated his willingness to meet with Heintzman to "discuss the issues and our proposals regarding the new WW A [collective bargaining agreement]."

Heintzman also used language to indicate that he and Hansen were making proposals; in a February 25 e-mail, Heintzman referred to his "view of a proposal that members would accept in lieu of arbitration." Heintzman has extensive experience in labor relations and negotiations. Consequently, it is probable he understood both the legal significance and the commonly-accepted meaning of "proposal" when he and Hansen used that term. We also note that Heintzman never objected to or expressed any reservations about Hansen's repeated use of the word "proposal."10

10The Union argues that Hansen and Heintzman's e-mails did not contain proposals because its own policy prohibits e-mail submission of proposals. The Union contends that this policy is established by the disclaimer included in all e-mails Union representatives send to T riMet managers; the disclaimer states that "ATU 7 5 7 does not accept official notice via email from employers on matters involving collective bargaining, grievance timelines, member discipline or policy changes."

Even if this disclaimer demonstrates a Union policy of refusing to accept bargaining proposals submitted by e-mail, the Union failed to prove that Hansen knew about it. Hansen testified that he was unaware of the policy, and none of the e-mails Heintzman sent to Hansen contained the disclaimer. In addition, the parties' October 22, 2009 ground rules include no prohibition against sending proposals by e-mail. Accordingly, we hold that the Union's policy of refusing to accept e-mails as official notice in "collective bargaining matters" does not apply to the offers Hansen submitted to Heintzman in February or March 2010.

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Even if we agree with the Union's contention that Heintzman and Hansen exchanged "what ifs," we still conclude that these "what ifs" were proposals. A "what if'' is, after all, an offer of language to be included in a collective bargaining agreement. The only difference between a "what if' and a more conventional proposal are the conditions attached to the "what if." These conditions are typically: the "what if'' proposal establishes no precedent; if not accepted, the "what if'' proposal disappears and the party making it reverts to a previously held position. Thus, whatever we choose to call the offers Heintzman and Hansen exchanged-"what ifs," "approaches," or "walks in the park"-they were proposals put forth to settle the successor contract. See Rogue River School District, 23 PECBR at 880 (an e-mail, which the school district identified as a proposal, is just that; contrary to the union's argument, the e-mail was not a "sneak preview" of a proposal that was actually made at a later date). 11

Because Hansen's February and March 2010 offers are proposals, we will compare them and TriMet's November 20 initial proposal with TriMet's final offer to determine if any proposals in the final offer are new. We begin our analysis by reviewing the standards by which we decide whether an issue is new.

Standards for Decision: Identifying a New Issue

We restrict the introduction of new issues late in the bargaining process to further the PECBA policy that requires parties to bargain about their labor disputes. City of Portland v. Portland Police Commanding Officers Association, Case Nos. UP-19/26-90, 12 PECBR 424, 465, recons 12 PECBR 646 (1990). We have explained the application of this principle to strike-permitted bargaining units as follows:

"The PECBA bargaining process is a series of carefully structured steps designed to help the parties identify and narrow their disputes. It begins

110ur conclusion should not be interpreted as an attempt to restrict parties from making "what if" proposals. "What if" proposals are commonly made in table bargaining and mediation, and are often a useful tool to explore potential settlements and reach agreement.

In order to use "what if" proposals effectively, however, both parties must acknowledge what they are: proposals with conditions. In addition, both parties must clearly understand and accept these conditions.

Here, there was no evidence that Heintzman and Hansen placed mry conditions on the offers they made. To the contraiy and as discussed above, Hansen and Heintzman's February-March 20 l 0 e-mails contain numerous references to "proposals" and contain no restrictions, conditions, or qualifications on the offers they made.

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with table bargaining and then moves to mediation, final offers, cooling off, and self help. The goal is a negotiated agreement. A new issue injected late in the bargaining process fmstrates the statutory purpose. It skips one or more of the statutory steps on the new issue, and it expands rather than narrows the scope of the parties' bargaining dispute, thereby maldng agreements less likely." Blue Mountain Faculty Association/Oregon Education Association/OEA/NEA and Lamiman JJ. Blue Mountain Community College, Case No. UP-22-05, 21PECBR673, 754 (2007).

Good-faith bargaining requires that issues be subjected to the "crucible" of the PECBA dispute resolution procedure. Roseburg School District, 12 PECBR at 464.

A bargaining proposal presents a new issue if the proposal did not logically evolve from or was not reasonably comprehended within an earlier proposal. Id. To decide if a proposal is new, we look at the substance, and not just the wording, of the proposal. Blue 1'1ountain Community College, 21 PECBR at 762.

Prior cases provide examples of how we apply these standards. In Blue Mountain Co111111u11ity College, we compared a final offer proposal to prohibit part-time employees from acquiring regular status to the college's earlier proposal to prohibit part-time employees from acquiring regular status for layoff purposes. The two proposals were identical except for three words. We looked to the substance of the final offer proposal rather than its form. We held that the final offer proposal raised an issue-part-time employees' entitlement to all contract rights-that was not reasonably comprehended within and did not logically evolve from the prior proposal, which only addressed part-time employees' lqyeff rights. Blue 1\1ountain Community College, 21 PECBR at 761-762. Similarly, we held that a final offer proposal to exclude part-time employees from the contract recall provisions did not logically evolve from a table bargaining proposal to exclude part-time employees from the contract layoff provisions. We reasoned that

"[l]ayoff and recall, although related, involve separate issues. In a layoff, the workforce gets smaller and the question is who should leave. In a recall, the workforce stays the same size (as when someone is replaced) or gets larger and the question is who gets hired." Id. at 758.

An important consideration in determining whether a proposal presents new issues is notice. A proposal made late in bargaining is new if a party could not reasonably have anticipated the terms of the proposal, based on positions previously taken in negotiations. In lvlarion County Law E1iforce111ent Association JJ. 1\1ario11 County and Marion County Sheriffs Office, Case No. UP-65-92, 14 PECBR 25 (1992), the county proposed, throughout table bargaining and mediation, to continue existing health and dental insurance plans; under this proposal, benefit levels and costs of the plans would be

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determined by a committee. At interest arbitration, the county proposed, for the first time, to contribute specific dollar amounts toward the cost of employees' health and dental insurance premiums, and to require that employees pay a portion of their premium costs. We held that the county's arbitration proposal was new; it contained specific dollar amounts the employer was willing to offer and, therefore, "differed in substance" from earlier proposals. As a result, the union "could not have reasonably anticipated the nature" of the interest arbitration proposal. Id. at 31. See also Blue Mountain Community College, 21 PECBR at 760 (a mediation proposal requiring faculty advisors to attend training was new; based on an earlier proposal requiring faculty to advise students, the union "could not have reasonably anticipated that the College intended to further increase the instructors' workload by mandating training for the advisor duties.").

Our cases also explain how we determine that a later proposal is not new because it logically evolves from or is reasonably comprehended within an earlier proposal. In Blue Mountain, we compared an early proposal that specified that layoff did not apply to part-time employees to a final offer proposal that excluded part-time employees from notice of layoff. We held that the final offer proposal was reasonably comprehended within the earlier proposal, which removed part-time employees from all contract layoff procedures, including notice of layoff. The final offer proposal simply made "the notice exclusion explicit." 21 PECBR at 762. In Rogue Rive1~ we considered a school district's mediation proposal that required the parties to use PECBA expedited bargaining procedures to negotiate the use of state funds for educational programs. We noted that the school district's proposal was "directly responsive" to the union's mediation proposal that the parties bargain about the use of these state funds. Accordingly, we concluded that the school district's proposal "was reasonably comprehended ·within and logically evolved from the parties' prior discussions." 23 PECBR at 793.

With these principles in mind, we consider TriMet's November 20, 2009 initial proposal, the proposals Hansen made in February and March 2010, and the proposals in TriMet's final offer to determine if any final offer proposals are new.

TriMet's Final Offer

Contract Duration

The parties' expired contract was in effect for six years, from 2003-2009.

TriMet made no proposals regarding contract duration, either in its November 20 initial proposal or in the February-March proposals Hansen made.

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In its final offer, TriMet proposes a three year contract, effective from December 1, 2009 through November 30, 2012.

The Union made proposals concerning contract duration: in its November 20, 2009 offer, the Union proposed continuing the current contract for two years. In a March 8, 2010 e-mail to Hansen, Heintzman proposed a "one to six year agreement-employer's choice.

TriMet's final offer proposal for a two year contract was thus directly responsive to an issue raised by the Union in negotiations. As a result, this final offer proposal was reasonably comprehended within and logically evolved from the parties' prior bargaining, and did not introduce a new issue.

Grievance Procedure

The parties' expired contract required meetings of the JLRC to be held monthly. It also required that TriMet pay the cost of two Union representatives' attendance at these JLRC meetings. In addition, the expired contract required TriMet pay the cost of one Union representative to participate in Steps I through III of the grievance procedure.

TriMet's November 20 initial proposal required that the Union pay the cost of its representatives' attendance at hearings at all steps of the grievance procedure.

Heintzman and Hansen never discussed the grievance procedure, and Hansen made no proposals concerning the JLRC or the grievance procedure.

In its final offer, TriMet proposes the following changes in the parties' grievance procedure:

• Require that JLRC meetings be held "frequently as mutually agreed."

• Require that the Union pay its representatives who attend the JLRC meetings.

• Require that the Union pay its representatives who participate in any steps of the grievance procedure.

TriMet's final offer proposal that the Union pay the cost of its representatives' attendance at all steps of the grievance procedure is virtually identical to its initial proposal and is, therefore, not new. Its final offer proposal that the Union pay the cost

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of its representatives' attendance at JLRC meetings logically evolves from its initial proposal requiring that the Union pay the cost of its representatives' attendance at all steps of the grievance procedure. Under the terms of the expired contract, the JLRC is a step in the grievance procedure: one of the JLRC's duties is to review and attempt to resolve grievances that "have been moved to and are pending arbitration."

TriMet's final offer proposal concerning the scheduling of JLRC meetings is new, however. This proposal was not included in TriMet's initial offer and Hansen and Heintzman never discussed it.

Payments for Special Programs

Under the expired contract, TriMet paid the Union $1,400 per month for a Benefits Coordinator position, $1,500 a month for a Transit Exchange program, and $65,000 per year for a Child Care/Elder Assistance program.

In its November 20 initial offer, TriMet proposed eliminating all payments for the Benefits Coordinator position and the Child Care/Elder Assistance and Transit Exchange programs.

Hansen and Heintzman never discussed the Transit Exchange or Child Care/Elder Assistance programs or the Benefits Coordinator position.

In its final offer, TriMet proposes paying the Union $500 per month for the Benefits Coordinator position, $55,000 annually for the Child Care/Elder Assistance program, and ending all payments for the Transit Exchange program. In addition, TriMet proposes that payments for the Benefits Coordinator position be kept in a separate fund and subjected to periodic TriMet audits. TriMet will end the payments if it finds the payments are not being used for the Benefits Coordinator position.

TriMet's final offer proposal concerning the Transit Exchange program is the same as its initial offer and is not new.

The final offer proposals reducing payments for the Benefits Coordinator and to the Child Care/Elder Assistance program also are not new. TriMet's initial offer specified the amounts it was willing to pay for these programs-zero. Based on this initial proposal, the Union could reasonably have anticipated TriMet's final offer proposal concerning the amounts it would pay for these programs. Accordingly, TriMet's final offer proposals concerning payments for the Benefits Coordinator and Child Care/Elder Assistance program logically evolve from and are reasonably comprehended within TriMet's initial proposal.

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The other elements of TriMet's final offer proposal concerning the Benefits Coordinator position are new. After TriMet made its initial proposal, the Union knew that TriMet was concerned about the amount it had to pay for the position. The Union could not have understood that TriMet was also concerned how its money was spent, i.e., whether the money it contributed for the position was properly used. As a result, the Union could not reasonably have anticipated TriMet's final offer proposal to impose conditions on payments made for the Benefits Coordinator position. For this reason, TriMet's final offer proposal concerning these conditions is new: it does not logically evolve from and is not reasonably comprehended within its prior proposal.

Senioriry

The expired contract specified that a Union bargaining unit employee promoted to a non-bargaining unit position would retain Union seniority in the last position worked prior to the promotion.

TriMet's initial November 20 proposal allowed a promoted Union bargaining unit member to retain Union seniority for two years.

Hansen and Heintzman never discussed retention of Union seniority.

In its final offer, TriMet proposes that a Union bargaining unit member promoted to a non-Union position retain Union seniority for five years.

TriMet's final offer proposal on seniority addresses the same issue raised by its initial proposal-the amount of Union seniority a bargaining unit member can keep after a promotion. TriMet's final offer proposal on seniority logically evolves from and is reasonably comprehended within its initial proposal and is not new.

Cost-of-Living Wage Increases

In the expired contract, Union bargaining unit members' wages were increased every six months by an amount equal to the Portland CPI-W, with a minimum increase of three percent and a maximum increase of five percent.

In its November 20 initial proposal, TriMet stated that it wanted to delete cost-of-living increases and replace them vvith "periodic and agreed upon pay adjustments."

On March 22, 2010, Hansen proposed replacing cost-of-living increases in the expired contract vvith "periodic pay adjustments."

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In its final offer, TriMet proposes to increase bargaining unit members' wages every six months by an amount equal to the Portland CPI-W, with a minimum increase of one percent and a maximum increase of five percent.

The circumstances here are like those in lvfarion Counry, 14 PECBR at 25, where the county waited until interest arbitration to make its first proposal regarding the specific amount it would contribute toward employee health benefits. We characterized the county's initial offer-to maintain current medical and dental plans and allow a committee to determine benefit levels and costs-as a "general promise." Similarly, TriMet's initial offer-to periodically increase wages by an amount to be negotiated-contained no specific offer of a wage increase and was only a "general promise." As the employer did in Marion Counry, TriMet waited until late in the bargaining process to tell the Union how much of a wage increase it was willing to offer. Based on the "general promise" TriMet made in its initial offer, the Union could not reasonably have anticipated the specific wage increase proposed in TriMet's final offer. Consequently, the cost-of-living wage proposal in TriMet' s final offer is new: it does not logically evolve from and is not reasonably comprehended within TriMet's prior proposal.

TriMet argues, however, that it made a specific cost-of-living wage proposal: in a Febniary 11, 2010 e-mail to Heintzman, Hansen asked if the Union would agree to give up a June 2010 cost-of-living increase. TriMet claims that its final offer proposal for periodic cost-of-living increases logically evolved from this wage freeze proposal.

Contrary to TriMet's assertion, Hansen's February 11 wage proposal was not an offer oflanguage to be included in the successor collective bargaining agreement. Instead, it was offered to the Union as a means to avoid layoffs. In his e-mail, Hansen explained that budgetary problems would probably force TriMet to reduce service levels and stated:

"It is hard to imagine that we can achieve this level of service reductions without layoffs. An alternative would be for ATU to agree to a freeze on the salary increase due June 1, 2010. As you know, inflation was essentially at 0% if not negative meaning members would not be giving up any buying power."

Heintzman understood that Hansen's proposal was made outside of successor contract negotiations: when Heintzman rejected the proposal, he told Hansen that any proposal for a wage freeze would "likely have to be part of a total agreement" and voted on by the Union bargaining unit membership.

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Based on TriMet's February offer that the Union forgo a single cost-of-living increase to avoid layoffs, the Union could not reasonably have anticipated TriMet's final offer proposal for periodic cost-of-living increases based on the Portland CPI-W. Therefore, TriMet's cost-of-living proposal is new.

Retirement Pay

Under the expired contract, all retirees participated in a defined benefit plan. Retirees' pay increased annually by the same percentage as active employees' wages.

In its initial November 20 offer, TriMet proposed that all retiree pay "be adjusted on the basis of 90% of the CPI." It also proposed that employees hired on or after January 1, 2010, participate in a defined contribution plan for Union employees.

In his March 22, 2010 e-mail to Heintzman, Hansen proposed that "[a]s is the case with management employees, all new union employees, hired after a certain date, to be agreed upon, will be eligible for a TriMet Defined Contribution Plan. The current Defined Benefit plan for union employees would be closed, as is the Defined Benefit Plan to management employees."

In its final offer, TriMet proposes the following changes in retirement pay:

• Increase retirement pay for existing retirees by an amount equal to the CPI-W for the previous year, up to 7 percent. Increase retirement pay for employees who retire after April 1, 2011 by an amount equal to 90 percent of the CPI-W for the previous year, up to 7 percent.

• Employees hired by TriMet before Aprill, 2012 will participate in the defined benefit plan under the terms of the expired contract. Employees hired on or after April 1, 2012 will participate in a defined contribution plan identical to the plan offered to all non-Union TriMet employees.

TriMet's final offer proposal regarding retirement pay addresses the same issues raised in its initial and March 22 proposals-linldng increases in retirement pay to the CPI and requiring that new employees participate in a defined contribution plan. Consequently, these final offer proposals are not new: they logically evolve from and are reasonably comprehended within TriMet's prior proposal.

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Health Care Benefits-Active Employees

Under the expired contract, Union bargaining unit members chose either a Kaiser or Regence health benefit plan to cover the employee and the employee's dependents; employees paid nothing out-of-pocket for the cost of their monthly insurance premiums.

In its initial November 20 proposal, TriMet stated that "[t]he provisions relating to health and welfare benefits need to be rewritten" and proposed that it provide Union active employees ~with "health coverage that is consistent with plan design and coverages provided to all other active TriMet employees."

In a February 11, 2010 e-mail, Hansen gave Heintzman a spread sheet with specific information about a number of health care plans, including plans offered to TriMet management employees. In his February 25 and March 22, 2010 e-mails to Heintzman, Hansen proposed offering Union bargaining unit members the same health benefit plans as TriMet management employees.

TriMet's final offer proposes the following changes in active employees' health care benefits:

• Offer active employees the same health care plans as TriMet management employees.

• Require that employees who select certain levels of coverage pay part of their monthly premium costs. Employees who select a Kaiser plan or an employee-only Regence plan would pay nothing. Employees who select other Regence Plans would pay monthly amounts ranging from $30 to $50.

TriMet's final offer proposal regarding health benefit plans is the same as the proposal it made throughout negotiations: to provide Union employees with the same health care plans as management employees. Consequently, this final offer proposal is not new.

TriMet's final offer proposal to require that employees who select certain levels of coverage pay a portion of their monthly premium costs is new, however. TriMet never raised the issue of employee payment for insurance premiums in its initial proposal, and Hansen and Heintzman never discussed it.

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Health Care Benefits-Retirees

Under the expired contract, all post-February 1992 retirees received the same health care benefits as active employees. Retirees were also reimbursed for the cost of their Medicare monthly premiums.

TriMet's initial November 20 proposal did not address retirees' health benefits. In a February 25, 2010 e-mail to Heintzman, Hansen stated that TriMet proposed no change in health benefits for retirees currently on Medicare, but proposed that future retirees who are not eligible for Medicare receive the same health care benefits as management employees.

In a March 22, 2010 e-mail to Heintzman, Hansen explains TriMet's position regarding retirees' health benefits:

"[F]or TriMet employees that retire in the future, we need to discuss how we are going to handle this issue on a going forward basis. For employees over 65, we are proposing they would, as they are now, be required to have Medicare A and B and would have a choice to add Medicare D coverage. TriMet's supplemental insurance for employees over 65 would be replaced by a fixed monthly sum. For employees under 65, we propose providing these employees the same health plans as active employees. For anyone retiring before 65, we are proposing that the District pay up to three years of healthcare coverage. If they want more they ·would need to pay the District's rate."

TriMet's final offer proposes the following changes in retirees' health care benefits:

• Provide employees who retire after February l, 1992, and before April 1, 2012, vvith the same health care benefits as regular employees.

• End TriMet reimbursement to retirees for the cost of Medicare monthly premium.

• Provide employees who retire after April 1, 2012 with the same health care benefits as active employees for three years; after three years, TriMet would pay these retirees $500 per month toward the cost of insurance benefits. For retirees hired after April l, 2011, the amount of the monthly contribution would vary, depending on the retirees' length of service.

37

The only proposals TriMet made regarding retiree health benefits are contained in Hansen's February 25 and March 22 e-mails. When we compare these proposals with TriMet's final offer proposals, we conclude that the final offer proposals present new issues.

In his February 25 and March 22 e-mails, Hansen provides no clear or complete explanation of specific changes TriMet wants to make in retiree health benefits. Hansen indicates that he wants to end TriMet's payment of supplemental insurance for over-65 retirees and replace it with a monthly contribution; he does not state how much TriMet is willing to contribute. He tells Heintzman that he wants to change health benefits only for future retirees, but never defines who is a future retiree.

In contrast to Hansen's earlier proposals, TriMet's final offer proposals for retiree health benefits are extremely detailed. These proposals limit a retiree's eligibility for certain health benefits based on the individual's specific date of retirement or date of hire, and also specify how much TriMet will contribute toward particular retirees' health benefit costs.

Based on TriMet's earlier proposals, the Union could not reasonably have anticipated the substance ofTriMet's final offer proposals for retiree health care benefits. Accordingly, TriMet's final offer proposals for retiree health benefits present new issues: they do not logically evolve from and are not reasonably comprehended within prior proposals.

Other Proposals

The expired contract included the following provisions:

• Extended medical coverage for retirees' spouses and dependents. The length of the coverage varied, depending on the date of retirement.

• The requirement that TriMet annually increase its payments to the Union for the Employee Assistance Program (EAP) by $2,000; in 2008, this payment was $65,000.

• References to "full" retirement benefits throughout the contract.

• Retirement after 30 years of service, regardless of age; the contract also specified that this provision expired with the contract.

38

• The requirement that TriMet annually increase its payments for the Recreation Trust fund by $2,000; in 2008, this payment was $55,000.

The expired contract included no references to "domestic partners" and contained no restrictions on retirement by mini-run operators.

None of the above provisions in the expired contract were addressed in TriMet's November 20 initial proposal, or in any of the proposals Hansen made in February and March 2010.

TriMet's final offer includes the following proposals:

• Eliminate extended medical coverage for retirees' widows, widowers, and orphans.

• Cap the annual payment to the EAP at $65,000; this amount will not increase during the life of the contract.

• Require that a mini-nm operator must work two years as a full-time regular employee before becoming eligible for full-time retirement.

• Require that an employee must be at least 55 and have 30 years of service to retire.

• Cap the annual payment to the Recreation Trust Fund at $55,000; this amount will not increase during the life of the contract.

• Add domestic partners to retiree health benefits coverage and to the list of relatives for whom an employee may take sick leave.

We consider each of these final offer proposals in turn.

In its post-hearing brief, TriMet presents no argument or explanation how its final offer proposals to eliminate annual increases in payments to the EAP and to eliminate extended medical coverage for retirees' dependents logically evolve from or are reasonably comprehended within prior proposals. We conclude, without difficulty, that these final offer proposals present new issues.

In regard to the proposals specifying a minimum retirement age of 55, deleting references to "full" retirement benefits, and restricting mini-run operators' eligibility for retirement benefits, TriMet contends that these proposals are not new. TriMet notes that in its initial proposal, it stated that "the parties need to discuss the qualifications

39

for full time retirement benefits." TriMet argues that its final offer proposals concerning retirement logically evolve from and are reasonably comprehended within this language in its November 20 proposal. We disagree.

Based on TriMet's November 20 offer, the Union could have expected that TriMet wanted to discuss changes in retirement benefits. It could not, however, reasonably have anticipated the specific changes TriMet proposed in its final offer regarding the minimum retirement age, eligibility of mini-run operators, and elimination of references to "full" retirement benefits. Consequently, these proposals do not logically evolve from TriMet's prior proposal and are new.

Regarding the final offer proposal that caps TriMet's payments to the Recreation Trust Fund and eliminates the $2,000 annual increase in this amount, and the proposal to add domestic partners to certain contract provisions, TriMet contends that these proposals benefit employees. According to TriMet, the Union should welcome new proposals that are advantageous for Union bargaining unit members.

A party commits a per se violation of its good faith bargaining duty if it makes a proposal late in the negotiations process. Blue Mountain Community College, 21 PECBR at 760 (citing cases). For this reason, the party's motive or intentions in maldng the proposal are irrelevant. Id. The purported goal of TriMet's proposals-to provide employees with additional benefits-does not justify the introduction of new proposals in its final offer. 12

Remedy

For the reasons stated above, TriMet violated its duty to bargain in good faith under ORS 243.672(l)(e) by including proposals that present new issues in its final offer. We now consider the question of an appropriate remedy. Under ORS 243.676(2)(b), we must issue a cease and desist order against a party that commits an unfair labor practice. We will order TriMet to cease and desist from including new proposals in its final offer.

12The Union also contends that TriMet's final offer proposal to delete a progression pay schedule for new employees raises an issue that was never addressed in a prior proposal. TriMet, however, contends that the only reason it proposes this change is to eliminate a redundancy in the expired contract. TriMet correctly observes that the progression pay schedule is listed in two separate places in the 2003-2009 contract; it asserts that its final offer proposal eliminates one of these schedules and retains the other.

We view the language in TriMet' s final offer concerning the progression pay schedule as an editorial revision rather than a proposal. Consequently, we do not hold that the elimination of duplicate contract language is a new proposal.

40

In addition, we must "[t]ake such affirmative action * * * as necessary to effectuate the purposes of' the PECBA. ORS 243.676(2)(c). When a party unlawfully introduces new issues in the later stages of the bargaining process, we normally order the parties to resume bargaining at the step where the earliest violation occurred. Blue Nlountain Community College, 2 l PECBR at 781. Here, the earliest violation occurred after the parties completed table bargaining and mediation and when TriMet submitted its final offer. We will order TriMet to submit a revised final offer which does not include proposals that present new issues. Both parties agree that this remedy is appropriate if we hold that all or portions of TriMet's final offer violates ORS 243.672(1)(e).

We will not order TriMet to post a notice of its wrongdoing. We generally order such a posting if we determine a party's violation of the PECBA was: ( 1) "calculated or flagrant"; (2) part of a "continuing course of illegal conduct"; (3) committed by a significant number of the respondent's personnel; ( 4) affected a significant number of bargaining unit members; (5) significantly (or potentially) impacted the designated bargaining representative's functioning; or ( 6) involved a strike, lockout, or discharge. Oregon School Emplf!Yees Association, Chapter 35 v. Fem Ridge School Dist1ict 28], Case No. C-19-82, 6 PECBR 5590, 5601,AWOP 65 Or App 568, 671 P2d 1210 (1983), rev dm 296 Or 536, 678 P2d 738 ( 1984). Not all of these criteria need be satisfied to warrant posting a notice. Oregon Nurses Association v. Oregon Health & Science University, Case No. UP-3-02, 19 PECBR 684, 685 (2002).

Here, there is no proof that TriMet's actions were either calculated or flagrant, or part of a" continuing course of illegal conduct." TriMet's unlawful acts did not involve a significant number of its personnel, and did not involve a strike, lockout, or discharge. TriMet's new final offer proposals-which reduced bargaining unit members' benefits and required some bargaining unit members to pay out-of-pocket for their health insurance premiums-had the potential to adversely affect a significant number of bargaining unit members. In addition, TriMet's unlawful introduction of new proposals in its final offer could have adversely affected the Union's ability to effectively represent its members in interest arbitration. These harms have been averted, however, by our order that TriMet submit a revised final offer that does not include the unlawful new proposals. TriMet's violation of the law does not meet the criteria for posting a notice of its wrongdoing, and we will not order such a remedy.

ORDER

1. TriMet ·will cease and desist from violating ORS 243.672(l)(e).

2. TriMet will submit a revised final offer to the mediator that is the same as its July 21, 2010, final offer with the exclusion of the following proposals:

41

• The provision that the JLRC will meet "as frequently as mutually agreed upon."

• The requirement that the Union place TriMet payments for the Benefits Coordinator position in a separate fund and allow the fund to be subjected to periodic TriMet audits, and the specification that TriMet will end payments to the fund if TriMet decides these payments are not being used for the Benefits Coordinator position.

• The provision that wages will be increased every six months by an amount equal to the most recent Portland CPI-W, with a minimum increase of one percent and a maximum increase of five percent.

• The requirement that employees who select Regence health insurance plans pay the following monthly amounts for the cost of their premiums: $30 for employee and spouse coverage; $25 for employee and child(ren) coverage; and $50 for employee and family coverage.

• The elimination of reimbursement to retirees for the cost of Medicare premiums.

• The provision that employees retiring on or after April l, 2012 will receive the same health care benefits as active employees for three years; after that, these retirees will receive $500 per month for the cost of health care benefits.

• The provision that employees hired after April 1, 2011 will receive a monthly contribution for health care benefits equal to four percent of the fixed contribution amount multiplied by the employee's years of service.

• The elimination of extended medical coverage for retirees' widows, widowers, and orphans.

• The requirement that employees must be 55 to retire .

• The elimination of the $2,000 annual increases in TriMet payments to the Union for the Employee Assistance Program and Recreation Trust Fund.

• The deletion of all references to "full" retirement benefits in the contract provisions regarding retirement pay and benefits.

42

• The requirement that a mini-run operator must work two years as a full-time regular employee before the mini-run operator is eligible for full-time retirement.

• The addition of domestic partners to retiree health benefits coverage and to the list of relatives for whom an employee may take sick leave.

DATED this ~day of September 2011.

~· ~IL,~




43


OF THE

STATE OF OREGON

Case No. UC-018-11

(REVOCATION OF CERTIFICATION)

ROGUE COMMUNITY COLLEGE ) DISTRICT, )

) Petitioner, )

) v. )

) TEAMSTERS LOCAL UNION 962, )

) Respondent. )

~~~~~~~~~~~~~-)

ORDER REVOKING CERTIFICATION

On August 13, 2001, this Board certified Teamsters Local Union 962 (Teamsters) as the exclusive representative of a bargaining unit of employees described as:

"All employees of Rogue Community College who are Commercial Truck Driving Instructors, currently at the Rogue Community College Commercial Truck Driving Department, excluding supervisory and confidential employees." Teamsters Local Union #962 v. Rogue Community College, Case No. RC-23-01 (2001). (Emphasis in original.)

On July 21, 2011, Rogue Community College District (College) filed a petition pursuant to OAR 115-025-0009 seeking to revoke the Teamsters' certification. OAR 115-025-0009 states:

"A petition to revoke an existing Board certification or employer recognition of an exclusive representative may be filed at any time by an employer or exclusive representative. The Board will order revocation only upon a showing that:

"(l) No collective bargaining agreement is in effect; and

"(2) The labor organization disclaims further interest in representing the bargaining unit or the labor organization is defunct."

The petition meets both conditions for revocation identified in the rule. First, it states that the current contract between the parties expired on June 30, 2011, and it attaches copies of portions of the contract which confirm the expiration date. Second, the petition states that the Teamsters no longer wish to represent the bargaining unit. It attaches a letter dated June 24, 2011 from the Teamsters' Secretary!freasurer to this Board's Elections Coordinator stating that the Teamsters are "withdrawing our interest in representing the instructors at Rogue Community College Truck Driving School."

The petition meets all of the requirements of OAR 115-025-0009. We will revoke the Teamsters' certification.

Based on the foregoing, this Board issues the following order:

ORDER

1. Petitioner Rogue Community College District's petition for revocation is granted.

2. The certification of Teamsters Local Union 962 as exclusive representative for the bargaining unit of Commercial Truck Driving Instructors at Rogue Community College is revoked.

DATED this J!i day of September 2011.

~ Vickie Cowan, Board Member


This Order may be appealed pursuant to ORS 183 .482.

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OF THE

STATE OF OREGON

Case No UP-43-09


MICHAEL BARKLEY and AFSCME ) LOCAL 2451, )

) Complainants, )

) v. )

) CITY OF KLAMATH FALLS, )

) Respondent. )

~~~~~~~~~~~~-)


Neither party objected to a Recommended Order issued on May 3, 2011 by Administrative Law Judge (ALJ) Peter A. Rader, following a hearing held before ALJ B. Carlton Grew on May 11, 2010, in Salem, Oregon. The record closed on July 6, 2010, on receipt of the parties' post-hearing briefs.

Allison Hassler, Attorney at Law, Oregon AFSCME, Council 75, Eugene, Oregon, represented Complainants.

Adam S. Collier, Attorney at Law, Bullard Smith Jernstedt Wilson, Portland, Oregon, represented Respondent.

On September 14, 2009, Michael Barkley (Barkley) and AFSCME Local 2451 (Union) filed this complaint alleging that the City of Klamath Falls (City) violated ORS 243.672(l)(a), (b), (c), (d), (e), and (f) in its dealings with Barkley, the President of Local 2451. The Union also alleged the City violated ORS 243.672( 1 )(e) and (f) by refusing to implement the terms of a settlement agreement regarding City employee Dan Aspera (Aspera).

At the ALJ's request, the Union amended its complaint on November 17, 2009, to add a claim under ORS 243.672(l)(g) on Aspera's behalf. In a letter ruling dated December 11, 2009, which is addressed more fully below in the Rulings section, the ALJ dismissed all of Barkley's claims and the ORS 243.672(l)(e) and (f) claims filed on Aspera's behalf. The ALJ permitted Aspera's claim under ORS 243.672(l)(g) to go forward. The City filed a timely answer on April 18, 2010.

The issues in this case are:

1. Did the City of Klamath Falls reinstate DanAspera without his seniority in violation of a reinstatement agreement? If so, did the City violate ORS 243.672(l)(g)?

RULINGS

1. Dismissal of Claims Prior to Hearing

In a letter dated October 30, 2009, the ALJ offered Barkley the opportunity to show cause why his claims should not be dismissed as untimely under ORS 243 .672(3 ). The letter also advised thatAspera's claims under ORS 243.672(l)(e) and (f) were either inapplicable or untimely and also subject to dismissal. The Union filed an amended complaint on November 17, 2009, but it did not cure the timeliness issues for Barkley's claims. The amended complaint properly added a claim under ORS 243.672(l)(g) alleging that the City breached the Aspera settlement agreement, but it did not cure the timeliness problem for Aspera's ORS 243.672(l)(e) claim. On December 11, 2009, the ALJ notified complainants that he would not accept evidence at hearing regarding any of Barkley's claims or Asp era's 0 RS 243. 6 72(1) ( e) claim and would recommend that the Board dismiss them. The complainants did not challenge the exclusion of evidence or the recommended dismissal of the claims in its post-hearing brief, by way of objections to the Recommended Order, or in any other way. We adopt the ALJ's rulings and dismiss the claims. Accordingly, the case properly proceeded to hearing solely on the issue of whether the City violated the terms of Aspera's settlement agreement in violation of ORS 243.672(l)(g).

2. Admissibility of Offers of Compromise

At hearing, the ALJ permitted, but reserved ruling on the admissibility of, testimony regarding the City's offer of compromise. The City presented evidence that the Union rejected an offer of compromise that would have theoretically disposed of the claim. The Union objected to the testimony on the grounds that Rule 408( 1 )(a) of the Oregon Rules of Evidence (ORE), as codified in ORS 40.190, generally precludes evidence of compromise or offers to compromise "to prove liability for or invalidity of

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the claim or its amount." Subsection (l)(b) of that rule also precludes "[e]vidence of conduct or statements made in compromise negotiations * * *." Subsection (2)(b), however, does not require exclusion when the evidence is offered for another purpose. The City argues that the evidence is not offered to disprove liability, but to prove the Union's bad faith by refusing an offer that provided the remedy being sought in the complaint. We disagree. For reasons discussed below, we conclude the evidence is properly excluded ..

The evidentiary standard in administrative proceedings is more expansive than in the ORE, but this Board frequently defers to the ORE regarding the admissibility of certain kinds of evidence. OAR 115-010-0050( 1) allows "[ e ]vidence of a type commonly relied upon by reasonably prudent persons in conduct of their serious affairs * * *." Subsection (2) excludes "[i]rrelevant, immaterial or unduly repetitious evidence * * *." Offers of compromise may be admissible depending on the nature of the evidence offered, its relevance to the claims being litigated, and the timing of the offer. In a case involving surface bargaining, evidence of proposals rejected in mediation was relevant to show the parties' bargaining process and was therefore admissible. Ciry of Portland v. Portland Police Commanding Officers Association and Portland Police Commanding Officers Association v. Ciry ef Portland, Case Nos. UP-19/26-90, 12 PECBR 424, 428 ( 1990). In another case, correspondence that allegedly contained offers of compromise was admitted because the nature of the statements and their context indicate that the Union was clarifying its own position and attempting to clarify the City's position regarding arbitration. Intemational Union of Operating Engineers, Local 701 v. Ciry ef Portland, Case No. UP-50-96, 17 PECBR 385, 386 ( 1997). Similarly, we concluded that an exchange of correspondence between counsel for the parties was relevant as evidence of the City's willingness to engage in bargaining. Intemational Association ef Fire Fighters, Local 1489 v. Ciry ef Roseburg, Case No. UP-9-87, 10 PECBR 504, 505 (1998).

The offer of compromise in this case, however, differs markedly from the foregoing examples. The offer was made long after the events which gave rise to the unfair labor practice, making its relevance and probative value dubious. It did not help clarify the factual basis of the claim, and it did not tend to prove any fact relevant to this case. The City's argument that the Union rejected the offer in bad faith was unsupported by any evidence in the record, and in any event, the admissibility of this evidence has no impact on the outcome of this case. Accordingly, we conclude that the evidence is inadmissible.


FINDINGS OF FACT

1. The Union is a labor organization and the exclusive representative of a bargaining unit of employees who work for the City, a public employer.

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The Parties' Contract

2. The Union and the City were parties to a Collective BargainingAgreement .r (Contract) in effect from July I, 2009 to June 30, 2011.

Article 6 of the Contract contains a four-step grievance process that culminates in binding arbitration.

Article 9.1 of the parties' Contract defines seniority as "a regular employee's length of continuous service dating from his/her last date of hire with the City in any Bargaining Unit position."

Article 9.3 of the Contract explains the effect on an employee's seniority in the event of voluntary or involuntary termination:

"(a) An employee shall lose all seniority credit in the event of voluntary or involuntary termination, provided the involuntary termination is not overturned by the grievance procedure."

Article 13.3 of the Contract addresses the payment of accumulated vacation in the event of termination:

"In the event of the termination or death of an employee who has completed his/her probationary period, all accumulated vacation, up to the cap amounts, shall be paid either to the employee or to his/her heirs * * *."

Facts Giving Rise to Aspera's Termination

3. At the time of the relevant events, Joel Kuhl was· the City's Director of Human Resources and Jeff Ball was the City Manager. Daniel Burdis was the Oregon AFSCME Council 7 5 Representative and Larry Hayes was a Union Steward and a Union Executive Board Member. Aspera was an Equipment Operator II who had worked for the City for six years in the Union bargaining unit.

4. On December 29, 2008, Aspera was involved in an off-duty physical altercation with his live-in girlfriend, who was a temporary employee of the City. She received a "fat bloody lip" as a result of the incident. Shortly thereafter, Aspera telephoned another City employee and made obscene and threatening statements to him. Aspera was subsequently arrested and jailed on charges of "Assault IV/Simple Assault and Harassment/Obscene Phone Calls." He was released from jail and ordered by the court to have no contact with his girlfriend.

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5. The City commenced termination proceedings againstAspera for violating the City's Workplace Violence Policy. The Union and the City negotiated a last chance agreement that was to take effect on January 7, 2009 that would allow Aspera to continue his employment with the City. The Union and City representatives signed the agreement, but Aspera requested additional time to review its terms.

6. On January 11, 2009, beforeAsperahad signed the last chance agreement, he was arrested for violating the court's no-contact order vvith his girlfriend. The City placed him on administrative leave effective January 14, 2009.

7. On February 9, 2009, following a meeting with Aspera, Union Steward Larry Hayes, and HR Director Joel Kuhl, the CityterminatedAspera's employment. The City sent him a check for his accrued wages, vacation, and leave time as required by Article 13.3 of the parties' Contract. 1

8. On February 11, 2009, the Union filed a grievance onAspera's behalf. At a Step 3 grievance hearing on February 25, 2009, the Union, the City, andAspera agreed that Aspera could be reinstated if he met certain conditions, including treatment for anger management and alcohol abuse.

Negotiations for the Reinstatement Letter and Last Chance Agreement

9. On February 26, 2009 ,2 the City sentAspera a draft of a revised last chance agreement setting out certain conditions he needed to fulfill before being allowed to return to work. The draft agreement refers to Aspera's "unpaid leave of absence" while seeking counseling/treatment.

1The Union agrees that the City issued Aspera a check for his accrued leave balances. In its closing brief, the Union argues that the City never terminated Aspera because it paid his health insurance premiums while Aspera underwent treatment. The Union offered no credible evidence to establish that Aspera returned the check, re-purchased his leave upon his return to work, or that this arrangement arose out of the negotiations for the last chance agreement. In any case, the City terminated Aspera and issued him a check for his accrued leave in accordance with the Contract.

2The letter marked as Exhibit C-2 is dated January 26, 2009, but HR Manager Kuhl testified that the actual date of the letter was February 26, 2009. In light of the factual context in which the letter was written, we conclude that the accurate date was February 26, 2009.

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10. Between February 27 and March 5, 2009, negotiations regarding the last chance agreement continued via telephone, in-person, and through e-mail, primarily between HR Director Kuhl and Field Representative Daniel Burdis. Numerous issues, proposals, conditions, and stipulations were raised, discussed, agreed to, or rejected during the negotiations, including Aspera's demotion, leave accrual, seniority, leave of absence, voluntary termination, and the length and type of counseling/treatment.

11. Seniority became an issue because it determines the order employees are laid off, their priority in shift bidding, and the order of preference in scheduling vacation and extra days off.

12. On February 27, 2009, Burdis and Kuhl exchanged the following e-mails:

Burdis wrote:

"We discussed in the meeting yesterday that he [ Aspera] would not accrue sick and vacation leave, but that he would accrue seniority. This section now states that not only does he not accrue seniority, but that he loses all other rights and benefits that he has. What is the rationale for changing this from where we were at yesterday and adding the additional stipulations?"

Kuhl wrote:

"This section was written to say he would not accrue any leave (sick, vacation, etc.) or holiday time. It was then written to say he could not take advantage of sick leave donation, 3 months leave of absence (article 12.6) etc. That was the City's intention. I do not read it to say he would not accrue seniority, lose other benefits (what other benefits are you referring to?), nor did I mean to add other stipulations. Is there other language you would suggest to address your concerns?"

Burdis wrote:

"Correct on the 3 months leave of absence component, as that was what we agreed to in the meeting. It was our intent that he be allowed donations should people be willing to give them. Othenvise he is better off being unemployed, collecting unemployment, and us worldng out some kind of COBRA arrangement. Also, to waive all CEA and/or Personnel Rules is concerning. We think it should read to only note what is excluded. As for the donations, we'll discuss it from our end and I'll get back to you. I think we can agree vvith the City on the point of donations."

- 6 -

Kuhl wrote:

"It is the City's pos1t10n that Dan deal with this issue on his own merits - aka, he cannot rely on others to cover him financially .... aka, he can use his own accruals, etc .... but he cannot use donations from other City employee's, [sic] or take advantage of other provisions of the personnel rules or union contract as noted above."

Kuhl wrote:

"If Dan returns the check he has, everything will go back to what it was before his termination. (In essence, Finance will just void the check.) They would then turn around and issue another check to Dan only for wages through his date of dismissal as of the 9th."

13. On March 5, 2009, an excerpt from an exchange between Burdis and Kuhl indicates that at that point the parties were still talldng about an unpaid suspension or leave of absence for Aspera while he underwent counseling/treatment. Burdis wrote:

"He has already received enough economic sanctions by the City. He will be paying treatment copays, and will have had a lengthy unpaid suspension * * * "

14. Before the last chance agreement was finalized, Aspera, Kuhl, and Union Steward Hayes met to discuss whether Aspera would use accrued or unpaid leave during his counseling/treatment period or whether he would voluntarily terminate his employment. On the Union's advice, Aspera chose voluntary termination because he believed it would help him obtain unemployment benefits while undergoing counselingltreatment.3 Over the City's objections, Aspera ultimately received more than $8,600 of unemployment benefits.

3Aspera did not recall having the option presented to him at that meeting, but Kuhl testified that it was discussed and that Aspera agreed to it. We credit Kuhl's testimony on this issue because it is consistent with prior e-mail communications between Burdis and Kuhl in which Burdis suggested that Aspera might be better off being unemployed. Furthermore, a voluntary termination under Article 9 .3 of the parties' Contract automatically triggers a loss of seniority, an important issue that increases the likelihood that it was discussed with Aspera at that meeting.

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15. On March 9, 2009,Aspera, Kuhl, Hayes, City Manager Jeff Ball, and City Attorney Rick Whitlock signed a reinstatement letter which references Aspera's termination. The letter sets out the conditions under which Asp era could return to work but omits any reference to his seniority. The letter states:

" . ".

".

".

".

".

"•

You [Aspera] will be reinstated as an employe only upon successful completion of a FFDE [Fitness for Duty Evaluation] with Dr. Ross. Your reinstatement with the City will include a demotion to an Equipment Operator I. This demotion will last for a minimum of one year from the date these documents are signed, and you will not be eligible for promotion to Equipment Operator II until that time period has lapsed and an Equipment Operator II position is open/available. You will remain terminated by the City for the purpose of seeking counseling/treatment for anger management and alcohol abuse related issues through Solutions EAP [Employee Assistance Program]. You shall have no more than 12 weeks for this purpose. Upon approvaVrecommendation in the sole discretion of Solutions EAP, within the 12 week period, you will be referred to a Fitness for Duty Evaluation (FFDE) with Dr. Ross. A tentative appointment shall be scheduled toward the end of the 12 week period; however, you can only attend this appointment if Solutions EAP refers you for the FFDE. If you are not referred to the FFDE, or you do not pass, you will remain terminated and will not be reinstated as an employee. You will be placed on a 'Last Chance Agreement' (attached) for a period of two years starting upon the date it is signed and failure to strictly adhere to all terms and conditions of this agreement will result in your not being reinstated to employment, or, if reinstated, your termination from City employment. During the period that you are not employed by the City, but for no more than 12 weeks, the City will continue to pay your health insurance premium. If you are unsuccessful in passing a FFDE, you will be responsible, at your option, for your continuing insurance premium under the City's COBRA program. Upon the City's previous decision to terminate you as of February 9, 2009, you were mailed a check that cashed out all your accrued leave balances per Union contract and City Personnel Policies. At your option, you may keep said funds, or you may purchase back your leave accruals at the following rates:

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"VACATION $2,561.76 "FLOATING HOLIDAY$ 188.37 "SICK LEAVE $1.167.86 " $3,971.99

136 hours vacation time 10 hours floating holiday time 248 hours sick time 3 94 hours total accrued time

"You will be required to sign both this letter and the attached Last Chance Agreement. If you have any questions about either document, or the expectations outlined therein, please feel free to contact, [sic] myself, either of your Union representatives, or City Manager Jeff Ball.

"This agreement and the terms therein shall be non-precedent setting between the parties." (Emphasis in original.)

16. On March 9, 2009, the same parties, plus Burdis, signed a last chance agreement. The agreement establishes conditions Aspera must meet to get "a final opportunity for continuing employment." That agreement, which lasts for two years, does not refer to Aspera's seniority but does state that "[e]mployee will remain terminated for up to 12 weeks for the purpose of seeking counseling/treatment through Solutions EAP." The agreement also includes the following integration clause:

"I fully understand the terms and conditions of this Agreement and acknowledge that there are no other agreements with the City, expressed or implied, that vary these terms. I also understand that, except as expressly stated in this Agreement, any other terms and conditions of my employment will be determined by the City's Policies, and the Collective Bargaining Contract between the City and the Union."

17. On May 29, 2009, Kuhl wrote to Aspera confirming his termination and acknowledging his successful completion of counseling/treatment ·with Solutions EAP. The letter reminded Aspera that he was still required to pass the FFDE scheduled with Dr. Amy Ross before being reinstated.

"Per your agreement with the City, you were terminated 'with the City and were given a period of no more that 12 weeks for the purpose of seeking counseling/treatment for anger management and alcohol abuse related issues. According to Wendy Strode from Solutions EAP, you have been participating in said counseling/treatment to the point that she has recommended/referred you for a Fitness For Duty Evaluation (FFDE).

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"A FFDE has been scheduled for you with Dr. Amy Ross. Your appointment is scheduled for 1 :00 PM, Monday, June 1, 2009 * * *.Please keep in mind, as per the 'Decision following Step 3 grievance hearing' sent to you March 9, 2009, if you fail to attend or pass this FFDE, you will remain terminated and will not be reinstated as a City employee."

18. On June 19, 2009, five weeks after the reinstatement letter and last chance agreement were signed, Kuhl and Burdis had the following e-mail exchange:

Burdis wrote:

"Also, I checked my notes, and my recollection was correct. We did discuss seniority, and those discussions were that Dan would be retaining it. We did not discuss details, so we'd need to figure out whether the time he was out of work would count toward his seniority or not. Since he was receiving treatment for a FMLA [Family Medical Leave Act] covered illness it would make sense to treat it the same as unpaid sick leave in Article 12.6. Let us know."

Kuhl wrote:

"None of the City's notes say anything about Dan retaining seniority. I do not know if Rick or Jeff's recollection would be the same or not, and I will defer to them. Otherwise, my position remains unaltered, Dan voluntarily terminated and therefore, under the contract forfeits all seniority rights.

"If Jeff or Rick remember differently, my position would be that Dan's seniority needs to be adjusted by the amount of time he was out. I have difficulty to your reference to again [sic] as it was Dan's decision to terminate, therefore, as he was no longer considered an employee at that time, there is no FMLA protection."

19. Aspera passed his FFDE and returned to work on June 22, 2009. He was directed to report to the Human Resources office to undergo the process for all new hires.

20. On July 2, 2009, the Union filed a grievance challenging the loss of Aspera's seniority but, following City Manager Jeff Ball's denial at Step 3 of the grievance process, the Union declined to pursue binding arbitration under the grievance procedure.

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21. On September l, 2009, Ball wrote to Aspera informing him of his reasons for denying the grievance:

"Of greatest concern was the suggestion that Joel Kuhl, former HR Manager, may have suggested that seniority would be restricted during the prior Step 3 proceedings. City Attorney Rick Whitlock did contact Mr. Kuhl and Larry Hayes and determined that the only discussions about seniority restoration involved Mr. Aspera's option to remain a City employee under suspended status, an option he did not choose.

"Under these circumstances, I agree ·with the prior Step 1 and Step 2 Decisions of Mr. Cox and Mr. Willrett for the reasons they stated. The bottom line is that the language of the CBA is clear and ignoring it in this instance would be to the detriment of at least two other Streets employees.

"I do appreciate your position that the prior disciplinary action may not have survived an arbitration. Challenging the termination beyond Step 3 certainly was an option for Mr. Aspera. However, it was an option not taken and I do not see its relevance now."

CONCLUSIONS OF LAW


2. The City did not violate ORS 243.672(l)(g) whenitreinstatedDanAspera without restoring his seniority.

DISCUSSION

This is a dispute about seniority. Aspera, a member of the Union bargaining unit, worked for the City for 6 years. He was involved in an off-duty domestic dispute with his live-in girlfriend and was jailed on charges of assault and harassment. The City began proceedings to dismiss him. The City and the Union negotiated a last chance agreement that would allow Aspera to continue working, but before the parties signed it, Aspera was arrested for violating a court-ordered condition of his release.

The City fired Aspera and the Union filed a grievance. The parties continued negotiations and agreed to reinstate Aspera if he met specified conditions, including anger management counseling and treatment for alcohol abuse. Early in the negotiations, the parties discussed Aspera' s working conditions if he were to be reinstated, including

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his right to "accrue seniority." Before the parties signed the agreement, the City offered Aspera the option to use either unpaid leave during the period of his counseling and treatment, or instead to voluntarily terminate his employment. Aspera chose to voluntarily terminate his employment with the City to enhance his chances to receive unemployment benefits while he was in treatment.

The parties agreed to and signed both a reinstatement letter and a last chance agreement. The documents contain conditions for Aspera's reinstatement and his continuing employment. Neither mentions seniority. Aspera met the conditions and was reinstated. The City refuses to restore the seniority Aspera accrued before he chose to voluntarily terminate his employment. Article 9.3 of the parties' collective bargaining agreement provides that an employee who voluntarily terminates employment loses all accumulated seniority.

The Union asserts that the City's refusal to restoreAspera's seniority violates both the reinstatement letter and the last chance agreement. According to the Union, the City's actions violate ORS 243.672(l)(g), which makes it an unfair labor practice for a public employer to breach the terms of a written contract. The Union challenges the loss of Aspera's seniority based on representations the City made during negotiations for the reinstatement letter and last chance agreement. It contends those negotiations clearly reflect the City's promise to restore Aspera's seniority. The Union also argues that the automatic loss of seniority, which occurs as a result of termination under Article 9 .3 of the parties' Contract, does not apply to terminations that are overturned through the grievance process. Finally, the Union contends that if Aspera were tntly terminated, he would not have been given the option of repurchasing his leave balances or have his health care premiums paid while undergoing counseling/treatment.

The City argues that 1) the negotiated last chance agreement makes no reference to preservingAspera's seniority; 2) the last chance agreement states that any terms and conditions of employment not covered by the agreement will be determined by the parties' Contract, which provides for the loss of seniority in the event of voluntary termination; 3) Aspera made an informed decision to voluntarily terminate his employment, rather than use accrued or unpaid leave, in order to increase his chances of obtaining unemployment benefits; and 4) the City processed Aspera's termination as it would for any other terminated employee.

The City also raised, for the first time in its closing brief, the affirmative defense that the Union failed to exhaust its administrative remedies by not pursuing the grievance to binding arbitration under Article 6 of the Collective Bargaining Agreement. That affirmative defense was not pled in the City's Answer. It is therefore untimely and we will not consider it. OAR 115-035-0035(1 ); Lebanon Education Association/DEA v. Lebanon C01111iiunity School District, UP-4-06, 22 PECBR 323, 325 (2008).

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The Union asserts the City violated ORS 243.672(1) (g). Subsection (1) (g) makes it an unfair labor practice for a public employer or its designated representative to "[v]iolate the provisions of any written contract with respect to employment relations * * *." A written grievance settlement is a "contract with respect to employment relations" within the meaning of subsection ( 1) (g). Oregon Public Employees Union, SEIU Local503 v. Wallowa Counry, Case No. UP-77-96, 17 PECBR451, 462 (1997). Contracts arising out of the collective bargaining process are interpreted in the same manner as other contracts. Portland Fire Fighters' Assn. v. Ciry of Portland, 181 Or App 85, 91, 45 P3d 162, rev den, 334 Or 491 (2002) (citing OSEA v. Rainier School Dist. No. 13, 311Or188, 194, 808 P2d 83 (1991)).

To interpret a contract, we follow the three-part analysis we described in Lincoln Counry Education Association v. Lincol11 Counry School Dist1ict, Case No. UP-14-04, 21 PECBR 20, 29 (2005). We first examine the text of the disputed contract language in the context of the document as a whole and, if the provision is clear, the analysis ends. Unambiguous contracts must be enforced according to their terms. P01tland Fire Fighters' Assn. at 91. Contract language is ambiguous if it can be given more than one plausible interpretation. Id. If the provision is ambiguous, we proceed to the second step and examine extrinsic evidence of the parties' intent. "[W]e vvill examine the parties' prior actions or practice as an aid to contract interpretation on[y if the contract language is ambiguous." Oregon AFS0\1E Council 75, Local 2831 v. Lane Cou11ry, Case No. UC-04-09, 23 PECBR 416, 425 (2009) (emphasis in original). Finally, if the provision remains ambiguous after applying the second step, we proceed to the third step and apply appropriate maxims of contract constntction. Yogma11 v. Panvtt, 325 Or 358, 364, 937 P2d 1019 (1997).

Accordingly, we first look to the language of the reinstatement letter and last chance agreement for evidence of the parties' intent regarding Aspera's status while undergoing counseling/treatment and his seniority upon his return to work. As a general rule, parties are strictly bound to agreements they have signed, and this Board will not rewrite or reconstitute the language of those agreements. Gresham Grade Teachers Association v. Gresham Grade School Dist1ict No. 4 and Larson, Case No. C-184-78, 5 PECBR 2889, 2895 (1980), remanded for Ju1tlzer p1vceedi11gs on other matters, 52 Or App 881, 630 P2d 1304 (1981), order on remand, 6 PECBR4953 (1981).

At the outset, it is important to understand the scope of the Union's arguments. It does not (and could not successfully) argue that the statements the City made during negotiations regarding Aspera's seniority are themselves enforceable agreements under subsection ( 1) (g). Subsection ( 1) (g) applies only to "written agreements," and the Union concedes that seniority is not addressed in the parties' written agreements. Instead, the Union argues that the statements in negotiations are "extrinsic evidence" of the parties' intent. (Complainant's Closing Brief at 4.) As explained earlier, we consider extrinsic

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evidence only when the language of an agreement is ambiguous. For reasons discussed below, we conclude that the language of the parties' agreement is unambiguous, and the law therefore precludes us from considering extrinsic evidence of the parties' intent.

Neither the reinstatement letter nor the last chance agreement address Aspera's seniority, but both documents refer numerous times to his termination. The reinstatement letter-signed by Aspera, Union Steward Hayes, HR Director Kuhl, and the City's Manager and Attorney-refers to Aspera's termination in four separate clauses. It refers to his reinstatement three times, but only upon successful completion of certain conditions. The last chance agreement similarly refers toAspera's employment status as terminated pending successful completion of all agreed-upon conditions. The letter expressly states that Aspera will remain terminated if he fails to meet the conditions.

Although the last chance agreement is silent as toAspera's seniority, it states that any terms of employment not addressed in that agreement will be determined by the parties' Contract. The integration clause of the last chance agreement further states that there are no other agreements, express or implied, that vary its terms, and that any other terms of employment will be determined by the parties' Contract. Article 9.1 of the Contract provides that seniority is based on continuous service. Article 9 .3 states that an employee shall lose all seniority credit in the event of voluntmy or involuntary termination, unless the involuntmy termination is overturned by the grievance process. Based on the parties' Contract, Aspera's continuous service ended when he elected to voluntari!Y tenninate his employment in order to increase his chances of receiving unemployment benefits. Accordingly, we find nothing ambiguous in either the reinstatement letter or last chance agreement regarding Aspera's status as a terminated employee. Likevvise, there is nothing ambiguous under the Contract about the automatic loss of seniority that occurs when an employee voluntarily terminates employment.

As a result, we need not proceed to the second step of the contract analysis, and thus vvill not consider extrinsic evidence of the parties' intent.4 In the context of collective bargaining, this Board has held that negotiating is a process of give and take in which proposals may be advanced at one stage of negotiations and vvithdrawn at another, depending upon their relationship to other proposals before the parties. Redmond Education Association v. Redmond School District 2/, Case No. C-5-78, 4 PECBR 2086, 2091 (1978), affd 42 Or App 523, 600 P2d 943, rev den, 288 Or 173 (1979). The parties' initial negotiations regarding the retention of Aspera's

4In any event, the proffered extrinsic evidence does not help the Union. The parties' discussion concerned whether Aspera "would accrue seniority" when he was reinstated. This appears to address his right to accrue seniority from the date of his reinstatement and into the future; it does not address his right to retain the seniority he previously accumulated with the City before he voluntarily terminated his employment.

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i

seniority were based on the assumption that he was using accrued or unpaid leave during counseling/treatment. Aspera's decision to voluntarily terminate his employment changed that.

The fact that negotiations surrounding Aspera's termination resulted in certain conditions favorable to him, such as the option to buy back his accrued leave and the City's continued payment of his health care premiums for a short period, does not alter the fact that he agreed to terminate his employment. We find nothing in this record which indicates that these conditions were intended to change his terminated status.

Finally, we find no merit to the Union's contention that under the Contract, Aspera retains his accumulated seniority because his termination was overturned by the grievance process. Article 9.3(a) of the parties' Contract provides: "An employee shall lose all seniority credit in the event of voluntary or involuntary termination, provided the involuntary termination is not overturned by the grievance procedure." This language is clear. An employee loses accumulated seniority in the event of a voluntary or involuntary termination. The seniority can be restored only if the involuntmy termination is overturned through the grievance process. Here, Aspera chose to voluntari[y terminate his employment, so the grievance exception in the Contract does not apply.

Based on the foregoing, the Union did not meet its burden to prove by a preponderance of the evidence that the City violated ORS 243.672( 1 )(g) when it refused to restore Aspera's seniority following his voluntary termination. Accordingly, we will dismiss the complaint.

ORDER


DATED this J1_ day of October 2011.



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OF THE

STATE OF OREGON

Case No. UP-013-10


PORTLAND FIRE FIGHTERS' ASSOCIATION, LOCAL 43, IAFF,

) ) ) ) ) ) ) ) ) )

Complainant,

v.

CITY OF PORTLAND,

Respondent. ~~~~~~~~~~~~->


A hearing was held before Administrative Law Judge (ALJ) Wendy L. Greenwald on October 20, 2010, in Salem, Oregon. The record closed on December 20, 2010, upon receipt of the parties' post-hearing briefs. The case was transferred to the Board without the issuance of a proposed order.

Barbara J. Diamond, Attorney at Law, Diamond Law, Portland, Oregon, represented Complainant.

Lory J. Kraut, Deputy City Attorney, City of Portland, Portland, Oregon, represented Respondent.

On March 22, 2010, the Portland Fire Fighters' Association, Local 43, IAFF (Association) filed an unfair labor practice complaint against the City of Portland (City) which alleged that the City violated ORS 243.672(l)(g) by refusing to implement the Tom Hurley (Grievant) grievance arbitration award.

The City filed a timely answer to the complaint and asserted that: ( 1) the Arbitrator exceeded the scope of his authority; (2) the award was an impermissible collateral attack on an administrative agency's decision; and (3) the award violates the law.

The issue presented for hearing is:

Did the City violate ORS 243.672( 1 )(g) when it failed or refused to comply with the terms of the Hurley grievance arbitration award?

RULINGS

1. The City offered into evidence Exhibits R-8, R-101-138, R-140-191 and R-193-195. The ALJ deferred ruling on their admissibility. These documents consist of transcripts and exhibits from two previously adjudicated Employment Relations Board cases between these parties: UP-14-07, 23 PECBR 23 (2009) and UP-05-08, 23 PECBR 856 (2010). When analyzing a refusal to implement an arbitration award, we limit our focus to the arbitration award itself. Accordingly, these exhibits are not relevant to the Arbitrator's award here and will not be admitted. See Lincoln Counry EducationAssociation v. Lincoln Counry School District, Case No. UP-56-04, 21 PECBR206 (2005).

2. The ALJ's remaining rulings were reviewed and are correct.

FINDINGS OF FACT

1. The Association is the exclusive representative of a bargaining unit of sworn Fire Bureau (Bureau) personnel employed by the City, a public employer.

2. The Association and the City were parties to a collective bargaining agreement effective July 1, 2007 through June 30, 2010.

3. Article 14 - GRIEVANCE, COMPLAINTS AND ARBITRATION, establishes a grievance process which culminates in final and binding arbitration. Article 14 states, in part:

"The arbitrator's decision shall be final and binding on both parties, but the arbitrator shall have no power to alter in any way the terms of this agreement. The decision of the arbitrator shall be within the scope and terms of this agreement and the arbitrator shall be requested to issue the decision in writing * * *. ".

4. Article 26 - DISCIPLINE, provides that "[d]iscipline and discharge of permanent (non-probationary) employees shall be for just cause."

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5. On October 4, 2007, the City fired Bureau employee Tom Hurley. On October 28, 2007, the Association grieved Hurley's discharge and the parties proceeded to grievance arbitration before Arbitrator William Reeves.

6. On January 8, 2010, Arbitrator Reeves issued his initial award, and then a revised award on January 21, 2010.

7. The arbitration award sets out the following facts specific to the grievance:

"Grievant was first employed as a fire fighter by PF&R [Portland Fire & Rescue] in 1980. Grievant suffered at least two disabling work-related injuries during his years working for the City. The first injury was to his knee in approximately 1983. He was on and off work because of his knee injury between 1983 and 1993. During his off-duty time, Grievant received disability benefits from the Fund. In 1992, Grievant injured his back and began receiving full disability benefits from the Fund in 1993 or 1994. At that time, the City did not formally separate from employment those employees who were w1able to work and who were receiving disability benefits from the Fund. Instead, the City placed these individuals on injury leave.

"In its discretion, the Fund provides vocational rehabilitation services which can have the goal of returning a disability benefit recipient to work performing a different job than fire and rescue services. An eligibility requirement for the Fund's Vocational Rehabilitation Program is the reasonable expectation that the costs of the vocational rehabilitation services would result in a reduction of the overall benefits that would likely be incurred until the member's disability retirement date.

"Grievant qualified for and received vocational rehabilitation services from the Fund in the form of training and tuition for culinary school. Grievant has worked as a chef since he completed his schooling and training. Following completion of the vocational rehabilitation plan, Grievant's disability benefits were set at 50 percent of the Grievant's rate of Base Pay at disability, and were subject to reduction equal to 25 percent of any wages earned in other employment during the same period. Grievant' s minimum disability benefit was 25 percent of his rate of Base Pay, regardless of the amount of wages earned in other employment.

"In 2002, Human Resources began medically separating from employment those Fund recipients who were permanently restricted from worldng. As part of that process, "medically separated" employees were placed on a medical layoff list for five years. Also in 2002, the Fund Trustees considered subsidizing the wages of police and fire employees who had permanent restrictions if they returned to work at the PF&R or the

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Police Bureau. The Trustees referred to the concept as long-term light-duty ('LTLD'), and discussed the idea at a number of meetings from 2002 through 2006. The Association supported the creation ofLTLD positions.

"In March 2006, the Trustees passed a resolution directing the Rules Committee to revise the applicable rules to subsidize wages for LTLD positions for permanently restricted employees for up to 24 months. In June 2006, the City advised Grievant and the Association that the City was maldng 'changes in employment policies and Fund disability benefit policies which may impact some members with long-term restrictions.' The changes were to be part of a Return-to-Work Pilot Project ('RTW Program'). The June 2, 2006 letter stated in part:

'In cooperation with the Mayor, City Commissioners and the Fund, the Bureau of Human Resources, Portland Police Bureau and Portland Fire and Rescue have been worldng to develop opportunities for injured members with long-term restrictions as part of the Return to Work Pilot Project. In addition, the Fund has recently revised its Administrative Rules.

'It is anticipated that Restricted Duty (RD) assignments will be available in both Police and Fire with the new budget cycle beginning July 1,2006 ....

'Not every Fund member with long-term restrictions will be eligible for a RD assignment The details of eligibility requirements and selection processes, if appropriate, are in development. For example, we expect that a bureau member must have permanent status as a City employee to be eligible.

'The Fund will ... review and update information about an injured member's restrictions, as necessary. For those of you who are or will be released to work with long-term restrictions, the Return to Work Coordinator and/or bureau will notify you in writing if there is an available assignment for which you are eligible. Return to work in these positions will be considered mandatory for the member provided you are offered an assignment and the requirements of the assignment are within your work restrictions as certified by your attending physician. If you are offered a RD assignment and do not return to the bureau, there are two potential consequences. First, your disability benefits will be

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discontinued. The reason disability benefits may be discontinued is that the Portland City Charter provides that a member is eligible for disability benefits ... 'when unable to perform the Member's required duties because of an injury or illness. . .' The Fund therefore cannot pay disability benefits to a member who can perform a RD assignment.

'The second potential consequence is that your employment status with the City will be affected. Decisions about an injured member's return to work and employment status will be made by Police or Fire in consultation with BHR and consistent with program policies, collective bargaining agreements, and City Human Resources Administrative Rules.'

"In October and December 2006, the Fund and PF&R sent notices to Grievant advising him that he was a potential participant in the RTW Program. In an October 30, 2006 letter, Grievant was directed to attend a 5-week training session beginning November 13, 2006. The letter stated that attendance was mandatory, and failure to attend would result in the Fund beginning 'the process of suspension or termination of your benefits.' On December 1, 2006, PF&R advised Grievant that the mandatory training dates were rescheduled to start on December 15, 2006. The same warnings for failing to attend the training were included.

"At this time, Grievant was working 12 to 14 hours a day as an executive chef overseeing a new restaurant in Seattle he had opened in November 2006. Grievant was also traveling to Portland where he was also overseeing a restaurant.

"Grievant did not show up for the mandatory training. On December 18, 2006 the Fund sent a letter to Grievant asking him to explain his failure to attend the mandatory training. Grievant's attorney responded on December 28, 2006. Grievant's attorney claimed the notice was untimely and inadequate because Grievant had just opened up a new restaurant in Seattle, and had many scheduled commitments which were necessary to promote and establish his new business. He also claimed a disabled worker who has undergone vocational retaining and who is actively employed in the field for which they were retrained could not be required to attend retraining as firefighter. The Fund was advised that Grievant would not have refused to attend based on these objection if he could have attended the training without jeopardizing his vocation as a chef. Instead Grievant would have reserved his rights and sought other relief.

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"The City agreed Grievant had good cause for not attending the scheduled training, and advised Grievant to contact the Fund by March 9, 2007 and arrange for the mandatory training. The City also advised Grievant that he should expect a return-to-work notice in early March for a return-to-duty date in April 2007. Grievant did not contact the Fund to arrange for training.

"On March 7, 2007, PF&R sent a letter to Grievant directing him to report for duty on April 5, 2007 as a Low Hazard Inspector. Grievant did not report for work. On April 26, 2007, PF&R sent Grievant a letter advising him to either report for duty by May I 7, 2007, or explain why he could not return to work. The letter informed Grievant, that if he failed to report or respond by May I 7, 2007, the City would consider him to have abandoned his job, and would initiate the termination process.

"Concurrently, on April I3, 2007 the Fund advised Grievant it was terminating his disability benefits because of he refusedl [sic] to attend the mandat01y RTW training. Grievant was advised he had I 4 days to respond, and 60 days to appeal the decision. On April 27, 2007 Grievant's attorney requested the Fund reconsider its decision to terminate Grievant's benefits. The Fund did not respond, and Grievant did not pursue his appeal rights.

"On June 25, 2007, PF&R notified Grievant it was proposing to terminate his employment for failing to return to duty as directed. On October 7, 2007, PF&R terminated his employment based on a finding that Grievant's unauthorized absence since April 5, 2007 constituted job abandonment.

"The Association grieved the dismissal on October I 8, 2007, contending PF&R did not have just cause for terminating Grievant. The remedy sought was rescission of Grievant's discharge and 'reinstatement to status as disabled employee receiving benefits through the Fund.' The grievance did not challenge the directive to Grievant to attend mandat01y training, which was the reason the Fund terminated Grievant' s disability benefits." (Footnotes omitted.)

8. The Arbitrator recognized that Grievant had been on medical layoff status for more than ten years when he was recalled to work.

9. The award also referred to a related case before this Board, Portland Fire Fighters' Assoc. v. CifY ef Portland, Case No. UP-I 4-07, 23 PECBR 43 (2009), rev'd and remanded, 245 Or App 255 (20 I I), in which the Association alleged that the City refused to bargain in good faith when it implemented the return-to-work program for medically restricted fire fighters, the same basis for Grievant's recall to work.

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"In its final order of March 26, 2009 (Order on Reconsideration issued June 1, 2009), ERB found the City's RTW Program concerned a right to assign work and was a permissive subject of bargaining. ERB noted that, while an employer is not required to bargain a decision that concerns a permissive subject for negotiations, an employer is obligated to bargain 'any mandatory impacts of that decision.' Furthermore, an employer must exhaust its duty to bargain about such impacts before implementing a decision.

"ERB found the City's decision to implement the RTW Program affected numerous working conditions that are mandatory subjects for negotiations, including issues relevant to this arbitration such as: 1) Procedures for recalling workers from medical layoff; 2)The order in which employees are recalled from layoff; and 3) Discipline for disabled workers who do not return to work.

"ERB also found meritless the City's argument that it was prohibited from bargaining over matters under the control of the Ftmd. ERB found: 1) The Fund was created by the City Charter; 2)The Fund, Human Resources, and PF&R are all departments within the City, created by the City, funded by the City, staffed in accordance with City policies, and advised by the City Attorney's Office; 3) The Fund, HR, and PF&R all worked together to implement the RTW Program; and 4) In effect the Fund and PF&R are two parts of the City's governmental structure. ERB concluded it had authority under PECBA to direct the City to require its departments to comply with the good faith bargaining obligation imposed by law; and the City is not prohibited from bargaining about matters under the authority and control of the Disability Fund.

"Based on the above, ERB found the City formally implemented its program without giving the Association notice that it planned to do so, and without giving the Association any opportunity to bargain about 'mandatory impacts' of the RTW Program.

"Thus, ERB concluded: '1. City did not violate ORS 243.672(l)(e) by refusing to

bargain the decision to create the RTW Program. '2. City did violate ORS 243.672(l)(e) and (f) by failing

to give the Association notice of the RTW Program and refusing to bargain about the impacts of the program.

"As a remedy, ERB ordered the City to cease and desist from refusing to negotiate about the impacts of the RTW Program that concern mandatory subjects for bargaining. However, ERB did not order the City to restore the status quo that existed before the City implemented the RTW Program."

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10. In making his determination, the Arbitrator applied the "just cause" standard. He concluded that the RTW rules were unlawful and Grievant was justified in not complying with the rules. The Arbitrator held that the City did not have just cause to terminate Grievant's employment. The award states:

"I find the Association proved Grievant was justified in disobeying the City's unlawful and unreasonable orders requiring him to return-to-work and report for training. Accordingly, I find Grievant's termination was without just cause."

11. The Arbitrator issued the following remedy in the award:

"l. For the reasons stated herein, the grievance is GRANTED.

"2. The City shall reverse the termination of Grievant's employment and reinstate whatever rights Grievant had as an employee before his termination.

"3. The City shall pay Grievant the amount of compensation Grievant would have received from the Fund in disability benefits had those benefits not been terminated by the Fund. The City shall make these payments retroactive to April 5, 2007, and these payments shall continue to be made by the City as though Grievant had been reinstated as a Fund member and entitled to receive disability benefits from the Fund. The City's obligation to pay Grievant under this Award shall cease upon the Fund reinstating Grievant as a member, and resuming the payment of Grievant's disability benefits."

12. The Arbitrator explained his rationale for that portion of the remedy which requires the City to pay Grievant's disability benefits as follows:

"The stipulated issue before me at this time regarding the remedy, is: 'Does the arbitrator have authority to issue the remedy sought by the Association.' The remedy sought by the Association is recission [sic] of Grievant's discharge and 'reinstatement to status as a disabled employee receiving benefits through the Fund.' I find this remedy is in the nature of a 'make-whole' remedy which is typical in labor arbitrations.

"The City contends the remedy sought by the association is not warranted. Furthermore, the City contends I do not have the power to restore Grievant's disability benefits because the City Charter vests the Fund with the exclusive authority over Grievant's disability benefits.

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"Regarding my authority, I note the City made a similar argument before ERB in UP-14-07. In that action, the City argued it was prohibited from bargaining over matters w1der the Fund's control because the Fund is a separate entity form [sic] the City. ERB disagreed with the City, and found:

'The Fund is, in fact, a creation of the City. The Fund, the Fire Bureau, the Police Bureau, and the Bureau of Human Resources are all departments within the City, created by the City, funded by the City, staffed in accordance with City policies, and advised by the City Attorney's Office. The City Fire Bureau, the Fund, and Human Resources department worked together to implement the return-to-work program. In effect, the Fire Bureau and the Fund are two parts of the City's governmental structure.' "I find the CEA does not specifically confer any jurisdiction over the

Fund on me. Although, I certainly have jurisdiction over the City. Furthermore I agree with, and specifically adopt through principles of collateral estoppel, ERB's findings that: 1) PF&R, HR, and the Fund worked together to implement the RTW Program; and 2) In effect, PF&R and the Fund are two parts of the City's governmental structure.

"Regarding the City's actions in this case, I found the City's orders requiring Grievant to report for training, and the March 7, 2007 return to work order were unlawful and unreasonable. Additionally, I found Grievant was justified in not obeying those unlawful and unreasonable orders. The City took two actions based on Grievant's refusal to obey these unlawful and unreasonable orders: 1) The City Bureau of Fire and Police Disability and Retirement (i.e., the Fw1d) terminated Grievant's disability benefits effective April 5, 2007; and 2) The City PF&R 'extinguished Grievant's rights as an employee and terminated Grievant from PF&R and the City of Portland.'

"In fashioning a remedy in this arbitration, I considered whether it was just for Grievant to lose his disability benefits because the Fund's action was based on the City's unlawful and unreasonable orders directing Grievant to report for training. I find that, but for the City's w1lawful and unreasonable orders, the Fund would not have had grounds to terminate Grievant's disability benefits. I also find the Fund's termination of Grievant's benefits was not simply an act of the Ftmd, but part of the City's implementation of the RTW Program. As ERB found in UP-14-07:

'The City's refusal to bargain the mandatory impacts of the return-to-work program was part of a course of w1lawful conduct that continued over several months and was carried

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out by several of the City's bureaus and departments. In addition, it involved a significant number of City representatives. See ERB UP-14-07 at 35.'

"Based on the above, I find a just remedy in this matter requires a restoration to status quo before the unlawful and unreasonable orders were issued. Accordingly, I find a make-whole remedy is appropriate, along with reversing the termination of Grievant's employment and reinstating whatever rights Grievant had as an employee before his termination.

"I find I have the authority to issue a make-whole award against the City. An arbitrator's source of authority is the labor agreement. As is typical in nearly all labor agreements, the parties' CEA [collective bargaining agreement] does not contain any provision detailing what remedy should be applied as compensation for a particular violation. However, the absence of an explicit jurisdictional grant to fashion a remedy does not deny the existence of an implicit grant of remedial powers. Both the courts and arbitrators have established that if the arbitrator has jurisdiction of the subject matter, he or she has implicit power to fashion an appropriate remedy sufficiently grounded in the contract. Hill and Sinicropi, Remedies in Arbitration (BNA 2nd ed., 1991) at 48. See also, How Arbitration Works, supra, at 1194.

"Of course, the simplest way to make Grievant whole is for me to direct the City to reinstate Grievant as a Fund member and for the Fund to pay Grievant his disability benefits retroactive to April 5, 2007. However, the City has taken the position that no one, including the City, has the authority to direct the Fund to do anything.

"Accordingly, I direct the City (not the Fund) to pay Grievant the amount of compensation Grievant would have received from the Fund in disability benefits had those benefits not been terminated by the Fund. The City shall malce these payments retroactive to April 5,2007, and these payment shall continue to be made by the City as though Grievant had been reinstated as a Fund member and entitled to receive disability benefits from the Fund. The City's obligation to pay Grievant under this Award shall cease upon the Fund reinstating Grievant as a member, and resuming the payment of Grievant' s disability benefits." (Footnotes omitted.)

13. On March 17, 2010, the City Council passed a resolution in which it directed the City not to implement the arbitration award in order "to defend the 2006 voter-approved reforms to the Fire and Police Disability, Retirement, and Death Benefit Plan [FPD&R]." In the resolution, the Council reviewed the history of the FPD&R voter-approved reforms, noted that the arbitration award ordered the City to pay

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Grievant's FPD&R disability benefits, and that "FPD&R terminated [Grievant's] continuing disability benefits because he was no longer disabled, failed to comply with FPD&R procedures, failed to return to work, and he did not avail himself of the voterapproved disability appeals process." The Council resolved that the City could take action to mitigate any potential damages resulting from its decision.

14. Since the award was issued, Grievant has not received the payments he would have received if his disability had not been cancelled, has not had his disability status under the Fund restored, has not been notified by the City that he is no longer terminated, and has not been offered a job by the City. The Association also has not been notified that Grievant's termination has been rescinded or that he had been returned to a recall list or other prior status. Grievant received an estimated pension benefit document from the Fund dated June 22, 2010, which reflected a termination date of October 5, 2007, and a last service accrual date of April 4, 2007, which was the date on which his disability benefits had terminated.

15. On May 27, 2005, as a result of a determination that Grievant was unable to return to full duty, the Bureau changed Grievant's status to medically separated, and he was placed on the City's layoff list pursuant to City Human Resources Administrative Rule 7.09, Medical Layoff. That rule provided that

"After reinstatement/re-employment rights have been exhausted under the Administrative Rule on Injured Employee Return to work, and/or after ADA and FMLA rights have been exhausted, if applicable, the appointing authority may place any permanently appointed employee on medical layoff. Medical layoff is appropriate for employees who cannot perform the essential duties of their regular assignment."

CONCLUSIONS OF LAW


2. The City violated ORS 243.672(l)(g) when it refused to implement the arbitration award.

DISCUSSION

The City unilaterally implemented a return-to-work program for disabled employees and ordered Grievant, who had been on disability for over 10 years, to return to work. When Grievant did not return, the Fund terminated his disability payments

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and the Bureau discharged him. The Association grieved the discharge through arbitration and requested that the City reinstate Grievant's employment rights and his disabled status under the Fund.

The Arbitrator concluded that the City lacked just cause to discharge Grievant and ordered the City to reinstate him. The Arbitrator also ordered the City to compensate Grievant for the payments he would have received from the Fund had the Fund not terminated his disability benefits. It is important to understand what this dispute is about. The City does not challenge the Arbitrator's order that it reinstate the Grievant to whatever rights the Grievant had as an employee before his termination. The City does however, challenge the Arbitrator's order that it reimburse the Grievant for disability benefits he would have received had he not been terminated. We begin our discussion of the City's claim by examining our standard for review of an arbitrator's award.

Standard

ORS 243.672(1 )(g) makes it an unfair labor practice for an employer to refuse to accept the terms of an arbitration award where the parties have agreed to accept such awards as final and binding upon them.

Because of the strong public policy favoring arbitration, our review of an arbitrator's award is limited. In the Matter of the Arbitration of a Dispute Between Service Employees International Union, Local 503, Oregon Public Employees Union v. State of Oregon, Office of Services for Children and Families, Case Nos. AR-3/4-03, 20 PECBR 829, 842 (2005); Lincoln Counf)l Education Association v. Lincoln Counf)l School District, Case No. UP-56-04, 21 PECBR 206 (2005); Fed. of Ore. Parole Officers v. C01nctio11s Div., 67 Or App 559, 679 P2d 868, rev den, 297 Or 458, 683 P2d 1371 (1984).

We will enforce an arbitration award unless it is clearly shown that:

( l) the parties did not agree to accept such an award as final and binding upon them (i.e., an arbitrator finds no violation of the agreement, but upholds a grievance as constituting an unfair labor practice; an arbitrator exceeds a limitation on his authority expressly provided in the collective bargaining agreement); or

(2) enforcement of the award would be contrary to public policy (i.e., the award requires the commission of an unlawful act; the arbitration proceedings were not fair and regular and thus did not conform to normal due process requirements). Willamina Education Assn. and Crowell Lucanio v. Willamina School District No. 30-44-63/, Case No. C-253-79, 5 PECBR4086, 4100 (1980).

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So long as an arbitrator's award is based on the arbitrator's interpretation of the contract language, the arbitrator is within his or her authority and the parties are bound by the decision. Clackamas County Emplqyees Association v. Clackamas County, Case No. UP-4-08, 22 PECBR 404, 411 (2009). We will not engage in a right/wrong analysis of an arbitrator's award, nor will we conduct an "inquest into the arbitrator's analysis." State ef Oregon, Oregon Department !if Transportation, Department of Motor Vehicles v. Oregon Public Emplqyees Union, Case No. AR-1-98, 17 PECBR 814, 825 (1998).

We apply these principles of limited review to the remedy awarded by an arbitrator. "[A]n arbitrator has substantial discretion in formulating an award." In the Matter ef the Arbitration Between State ef Oregon, Department ef Cmnctions v. AFSCME Council 75, Local 2623, Case No. AR-1-92, 13 PECBR 846, 863 (1992) (citing Woodbum Educ. Assn. and Bradford v. Woodbum Sch. Dist. No. 103C, Case No. C-126-83, 7 PECBR6509 (1984); and North Clackamas Educ.Assn. v. North Clackamas Sch. Dist. No. 12, Case No. C-275-79, 5 PECBR4107 (1980), affd, 54 Or App 211, 634 P2d 1348 ( 1981); and State ef Oregon, Oregon Department of Transportation, Department of Motor Vehicles v. OregonPublicEmplqyees Union, Case No. AR-1-98, 17 PECBR 814, 825 (1998). The remedial power of an arbitrator encompasses any relief which the arbitrator finds is reasonably necessary to remedy a contract violation, provided that the remedy does not graft additional language to the contract. Chenowith Ed. Assn. v. Chenowith Sch. Dist. 9, Case No. UP-104-94, 16 PECBR 26 (1995), affd,141 Or App 422, 918 P2d 854 (1996).

The City accepts the Arbitrator's determination that it had no just cause to terminate Grievant. The City's challenge concerns only that portion of the Arbitrator's order that requires the City to pay Grievant what he would have received had the Fund not terminated his disability benefits. Accordingly we limit our review to only that portion of the remedy which requires the City to pay Grievant.

The City argues that the Arbitrator exceeded his authority when he ordered the City to compensate Grievant for disability payments he would have received from the Fund because:

( 1) the Fund is an entity separate from the City, and the City cannot be held liable for the actions of the Fund;

(2) the award violates the City Charter (which provides that the Fund is a separate entity); and

(3) the award circumvents the Fund's administrative appeals process.

We recently examined the relationship between the City and the Fund in two cases: Portland Fire Fighters' Assoc. v. Ciry ef Portland, UP-14-07, 23 PECBR 43 (2009) rev'd and remanded, 245 Or App 255 (2011); and Portland Police Association v. City of Portland, Case No. UP-05-08, 23 PECBR 856 (2010), appeal pending.

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In Portland Fire Fighters' Assoc., 23 PECBR 43, the City implemented a return-towork program for disabled fire fighters. The Association demanded to bargain both the decision and the mandatory impacts of the program. The City refused to bargain, arguing that it had no PECBA obligation to bargain because the Fund was a separate entity over which the City had no control and the City Charter took precedence over the PECBA. We determined that the Fund was a City department and that the Fire Bureau, Fund, and Human Resource Departments all worked together to implement the City's RTW program. We concluded that although the City's decision was permissive for bargaining, the impact of the decision effected mandatory subjects. Therefore, the City was obligated to bargain those impacts.

The City appealed our decision to the Court of Appeals. The City raised five assignments of error. The City alleged that ERB erred:

( 1) in not dismissing the post-retirement medical expense issue as moot; (2) in concluding that PECBA preempted the City of Portland's authority as a

home rule municipality; (3) in holding that the City is not prohibited from bargaining over subjects that

are exclusively within the authority of the Fund as provided by the Portland City Charter;

( 4) by not considering evidence of already existing collective bargaining provisions, long standing policies and the parties' course of conduct in its "duty to bargain" rationale; and

(5) in requiring the City to mail notice of the unfair labor practice to bargaining unit members who are on disability status or injury leave.

The Court rejected the first three arguments without discussion and the City conceded its fifth assignment of error. However, the Court reversed and remanded the decision to this Board on the City's fourth assignment of error and instructed this Board to construe the parties' collective bargaining agreement for the purpose of determining whether the CBA authorized the changes and impacts. 245 Or App 255 n 4.

In Portland Police, 23 PECBR 856, the City refused to arbitrate an Association grievance which alleged that the City violated the collective bargaining agreement by reducing bargaining unit members' pension benefits. The City argued that it had no obligation to arbitrate because the Fund decided to make the reductions. According to the City, the Fw1d is a separate entity over which the City has no control; because the City Charter governs the Fund it would violate the City's home-rule authority under the Oregon constitution to interfere with the Fund's decisions. We rejected the City's arguments and concluded that the Fund was a City department created, funded, and

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staffed by the City. If the City contractually agreed to provide a certain level of benefits for Association members and a third party ceased to provide those benefits, then the employer may have a contractual obligation to make up the difference. 23 PECBR at 869 n 8, citing McMinnville Education Association v. McMinnville School Dist1ict # 40, I 7 PECBR at 546. Because the parties had also contractually agreed to resolve their differences through arbitration, it was the arbitrator's obligation to determine whether the City had, in fact, violated the collective bargaining agreement. We further reiterated that the City Charter does not take precedence over the PECBA. 23 PECBR at 870, citing Portland Fire Fighters' Assoc. 23 PECBR at 75-76.

Here, the City contends that the Arbitrator exceeded his authority when he ordered the City to compensate Grievant for disability payments he would have received from the Fund. Once again, the City argues it is not liable for the actions of the Fund. For the same reasons we cited in Portland Police and Portland Fire Fighters' Assoc., we disagree and find no compelling reason to change our decision.

The City further argues that the arbitration award allowed Grievant to circumvent the City Charter and the Fund's administrative appeals process. The City's argument is misplaced. The Arbitrator agreed he did not have specific authority over the Fund. The Arbitrator derives his authority from the collective bargaining agreement between the A~sociation and the City. Here, the contract gives an arbitrator broad authority to fashion a remedy. Consequently, the Arbitrator did not exceed any contractual limits on his authority by requiring that the City reimburse the Grievant for disability payments he should have received. Whether we agree with the Arbitrator's choice of remedies is immaterial. As discussed above, our review of an arbitrator's award is extremely limited and we refuse to engage in any "right/wrong" analysis. SEIU v. Office of Services for Children and Families, 20 PECBR at 842.

We emphasize that the Arbitrator's award obligates the City, and not the Fund, to pay the Grievant. The Arbitrator did not order the Fund to do anything; the City is free to get the money to pay the Grievant from any department, division, or fund it chooses.

The PECBA requires parties who contractually agree to final and binding arbitration to comply with an arbitration award. Here, the Arbitrator had the authority to require the City to comply with the collective bargaining agreement by compensating Grievant for his loss.

Remedy

The City refused to implement Arbitrator Reeve's award in violation of ORS 243.672(I)(g). As a remedy, we will order the City to cease and desist from

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refusing to accept the terms of the award. We will order the City to implement the terms of the award as soon as is practicable, and to make the Grievant whole for any damages caused by the City's unlawful conduct, including payment of disability benefits.

The Association requests that the City be directed to pay interest on the compensation Grievant would have received had the arbitration award been implemented at the time it was ordered. Adding interest to a monetary remedy will further effectuate the purposes and policies of the PECBA. Oregon School Emplqyees Association, Chapter 84 v. Redmond School District 2f, Case No. C-237-80, 6 PECBR 4726, 4739 (1981). We will order the City to pay Grievant interest at 9 percent per annum on the amount of compensation he would have received but for the City's refusal to comply with the Arbitrator's award.

ORDER

1. The City shall cease and desist from violating ORS 243.672(1)(g) by refusing to accept the terms of Arbitrator Reeve's award.

2. As soon as practicable, the City shall implement the terms of the arbitrator's award, and shall make Grievant whole for any damages he incurred because of the City's unlawful refusal to implement the award.

3. The City shall pay interest to Grievant in the amount of 9 percent per annum on compensation he would have received had the City not refused to comply with the arbitration award.

DATED this I r5 day of November 2011.


I 1ikLa4,h?',____




*Chair Gamson not available.

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OF THE

STATE OF OREGON

Case No UC-17-10


UNITED EMPLOYEES OF COLUMBIA GORGE COMMUNITY COLLEGE, LOCAL 4754, AFT, AFL-CIO,

Petitioner,

v.

COLUMBIA GORGE COMMUNITY COLLEGE,

Respondent.

) ) ) ) ) ) ) ) ) ) ) )

~~~~~~~~~~~~~~~~)


On September 21, 2011, this Board heard oral argument on Petitioner's objections to a recommended order issued by Administrative Law Judge (ALJ) Wendy L. Greenwald on June 27, 2011, after a hearing held on January 5, 2011, in Salem, Oregon. The record closed on February 3, 2011, with the receipt of the parties' post-hearing briefs.

Eben Pullman, Field Representative, and Richard H. Schwarz, Executive Director, AFT-Oregon, Tigard, Oregon, represented Petitioner.

Michael Porter, Attorney at Law, Miller Nash LLP, Portland, Oregon, represented Respondent.

On June 25, 2010, the United Employees of Columbia Gorge Community College, Local 4754, AFT, AFL-CIO (Union) filed this unit clarification petition, under OAR 115-025-0005(2) and (3), seeking a determination that employees filling the following positions are public employees and the positions are included in the existing

bargaining unit under the contract recognition clause: payroll accountant; accountant; cost accountant; facilities services coordinator - purchasing, procurement, and facilities projects; network specialist; life skills project specialist; and student life advisor. The Columbia Gorge Community College (College) filed timely objections to the petition.


1. Are the employees in the classifications of payroll accountant; accountant; cost accountant; facilities services coordinator - purchasing, procurement, and facilities projects; network specialist; life skills project specialist; and student life advisor included in the bargaining unit under the express terms of the contract recognition clause pursuant to OAR 115-025-0005(3)?

2. Are the employees in the classifications of payroll accountant or cost accountant excluded from the bargaining unit as confidential employees within the meaning of ORS 243.650(6)?1

RULINGS

The Union objected to Findings of Fact 7 and 8 in the Recommended Order; these Findings of Fact were based on the statement of proceedings and findings this Board made in Portland Community College Faculty Federation v. Portland Community College, Case No. UC-34-87, 10 PECBR 700 (1988), of which the ALJ took official notice. The Union contends that the ALJ erred by using "a previous Board decision as evidence in reaching Findings of Fact 7 and 8 that was not submitted into evidence at the hearing and is not relevant to the issue before the Board."

According to the Union, the College first cited the facts in P01tland Community College in its post-hearing brief. The Union correctly notes that this Board will not permit submission of additional evidence after a hearing w1less the party wishing to introduce the evidence moves to reopen the record and this Board grants the motion. Cascade Bargaining Council v. Bend-LaPine School Dist1ict No. 1, Case No. UP-33-97, 17 PECBR 609, 610 (1998). Because the College never moved to reopen the record to submit the facts of the case as evidence, the Union contends that the ALJ improperly relied on these facts in the Recommended Order.

1The College originally objected to the confidential status of the accountant position, but stipulated at the hearing that this was not a confidential position.

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Under ORS 183.450(4), a hearing officer and agency may take notice of "judicially cognizable facts * * *." An agency decision is a "judicially cognizable fact." ORS 40.090(2) provides that judicially noticed law includes "[p ]ublicand private official acts of the legislative, executive and judicial departments of this state * * *." Agency decisions are official acts under this rule. McGee Plumbing Inc. 11. Building Codes Di11., 221 Or App 123, 131-132, 188 P3d 420 (2008). Utility Refonn Project 11. PUC, 215 Or App 360, 365 n 1, 170 P3d 1074 (2007). Thus, theALJ did not err by taking official notice of our decision in Portland Community College Faculty Federation 11. Portland Community College.

We have, however, eliminated Finding of Fact 8 from this Order. Facts concerning classified employee positions at Portland Community College in existence in 1987 are not relevant to our consideration of the Union's petition.


FINDINGS OF FACT

1. The Union is the exclusive representative of separate units of classified and faculty employees at the College. The College is a public employer.

2. The Union and the College are parties to two collective bargaining agreements, one covering classified employees (Classified Contract) and one covering faculty employees (Faculty Contract).

3. The Classified Contract, effective from July 1, 2009 through June 30, 2012, contains the following recognition clause:

"A. The Employer recognizes the Union as the exclusive representative for all classified employees of Columbia Gorge Community College, excluding casual employees, supervisory and confidential employees as defined in ORS 243.650(6) and (14).

"1. For the purpose of definition within this contract, 'casual employees' will be those employees working irregular schedules, short term, and performing sporadic work. Frequently decisions will be made daily about whether or not there is work for the next day.

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"B. New and Modified Positions. The Employer will notify the Union upon creation of new or modified classified positions and the Union and the Employer will meet to determine the appropriate unit placement and compensation of the job. The meeting to discuss unit placement of the position will be held within fifteen (15) working days from the time of the Employer's notice. Compensation issues will be resolved according to the provisions of Article XIV, Compensation. The Union can initiate discussions under this paragraph when it believes that the duties of a position have been modified so substantially that the position should be considered a new position and a new salary placement is appropriate."

4. Compensation for classified bargaining unit positions is provided for under Article XIV of the Classified Contract. That article establishes four wage levels for the positions of accmmting specialist, administrative assistant, computer support technician, facilities services technician, instructional assistant, library assistant, and specialist. It also states that "[ a]ll new or vacant positions will be filled at Step l of their respective level. Respective level is defined as the status quo."

5. The recognition clause in the Faculty Contract, effective from July 1, 2007 through June 30, 2010, provided that the College recognized the Union as the exclusive bargaining representative of the following employees:

"l. Full-time instructors;

"2. Part-time instructors who teach credit courses;

"3. Part-time instructors who teach noncredit courses in adult basic education, GED, English as a second language, and vocational (professionaVtechnical) education. The following employees are excluded from the bargaining unit:

"a. Instructors of other noncredit courses;

"b. Professional support staff;

"c. Administrators;

"d. Confidentials;

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Background

"e. Supervisors;

"f. Classified employees;

"g. Faculty who teach less than a three-credit class or 30 hours per term; or

"h. Instructors of courses that are subcontracted by or for business, industry, or agencies."

6. The College was originally chartered in 197 6 as a branch of Portland Commtmity College (PCC). The faculty who worked at the College were PCC employees, who were included in the PCC faculty bargaining unit. The PCC faculty bargaining unit was represented by the PCC Faculty Federation, Local 227, an affiliate of the American Federation of Teachers (AFT). The PCC classified employees were represented by another AFT affiliate, Local 3922.

7. In 1987, the PCC Faculty Federation filed a petition seeldng to add professional support staff positions to its current bargaining unit, which at the thne consisted of full-time faculty, counselors, and librarians. Portland Community College Faculty Federation v. Portland Community College, Case No. UC-34-87, 10 PECBR 700 ( 1988).2 Robert Nightingale, who worked for AFT and the PCC Faculty Federation, was one of the representatives for the PCC Faculty Federation in that proceeding. PCC was represented by its attorney, Donna Cameron. The petitioned-for "professional support staff" positions were defined by PCC as "lower level administrators who have less responsibility for budgeting and supervision than other administrators." Id. at 710. Among these positions were: a media relations specialist; coordinator of student affairs; admissions specialist; academic advisor specialist; management and commerce coordinator; teleconference specialist; and computer specialist (Tektronix location). Almost all of the petitioned-for positions required either a bachelor's or master's degree. In its decision, issued in June 1988, this Board clarified the PCC faculty unit to include all professional support staff employees, subject to a self-determination election.

2Finding of Fact 7 is based on the statement of proceedings and Conclusions of Law in our decision in Portland Community College Faculty Federation v. Portland Community College, I 0 PECBR 700, of which we take official notice.

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8. In 1989, the College became an independent commtmity college and employed its own faculty. Soon after this, questions arose about the continuing representation of the College's faculty employees by the PCC Faculty Federation. Ultimately, AFT Executive Director Richard Schwarz, AFT Representative Nightingale, and College representatives negotiated an agreement under which the determination of whether the College's faculty employees would be represented by the Union was made subject to a secret-ballot election. The makeup of the College's faculty bargaining unit "mirror[ed] the unit that was already described in the PCC agreements." As a result of the election, the Union became the representative of the College's faculty e1nployee bargaining unit.

9. At the time of this faculty representation election, the College's classified employees approached AFT to seek representation. In November 1990, Schwarz and Nightingale filed a petition with this Board on behalf of the Union seeking to represent a bargaining unit of "[a]ll classified employees employed by the employer," excluding supervisory and confidential employees. When it filed the petition, the Union intended the term "classified employees" to refer to all non-confidential, non-supervisory employees not included in the faculty unit.3 The College filed objections to the petition on the basis that administrative and casual employees should be excluded from the petitioned-for unit. By letter dated December 14, 1990, Cameron, the College's attorney, sent AFT Representative Nightingale an outline of an agreement that she believed the parties had reached on the definition of the classified bargaining unit. The letter stated that the parties agreed to add an exclusion for casual employees, identified potential confidential employees, and stated that "[a]dministrators will not be specifically added to the list of exclusions from the unit, but we understand that the intended unit does not

3The College argues that we should discount Schwarz's testimony that the Union intended to include all non-faculty employees within the term "classified employees" because it is inconsistent with his testimony that the parties' intended the College's faculty unit to mirror that of the PCC faculty unit, which included professional support staff, and the parties' agreement to exclude the administrative employees from the classified unit.

The original College faculty bargaining unit description is not in evidence, however. As a result, we do not know what changes, if any, have occurred since the parties agreed to the original bargaining unit description. Accordingly, we will not discount Schwarz's testimony on the grounds that it is inconsistent.

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involve administrators. Paul Newell and Linda Quackenbush are not considered part of the proposed unit. "4

10. In early January 1991, the College and the Union signed a consent election agreement for a bargaining unit of "[a]ll classified employees of Columbia Gorge Community College, excluding casual employees and supervisory and confidential employees as defined by ORS 243.650(6) and (14)." (Emphasis in original.) The Union won the election and on February 26, 1991, this Board certified the Union as the exclusive representative of this bargaining unit of employees.5

History of Petitioned-For Positions

11. In 1993, Saundra Buchanan was hired as the chief financial officer (CFO) of the College and head of the College's business office. When Buchanan was hired, there were three full-time and two part-time employees in the business office, including classified bargaining unit member Mayrie Cox, who was initially employed in the position of accountant. 6 At the time of the hearing, Cox worked as an account specialist. During her employment at the College, Cox has served as the Union's president, treasurer, and grievance officer.

12. Payroll Accountant. In 1995, the College created a payroll accountant position in the business office. The position was created so the business office would have an employee with a degree who could perform duties under generally accepted accounting principles (GAAP), provide expertise and skills necessary to interpret regulations, assist in policy development, and develop new tracking mechanisms for certain benefits and

4There is no evidence regarding the positions held by Newell or Quackenbush in 1990, when the parties agreed to exclude them from the bargaining unit. When Chief Financial Officer Saundra Buchanan was hired in 1993, Newell was an information technology professional responsible for maintaining the College's networks, providing software support, and maintaining the computer lab and computers at off-site facilities. Quackenbush was a special projects coordinator worldng in the College president's office. Quackenbush managed the College's facilities, which at that time were rented; managed the phone system; supervised the College's custodial/maintenance employees; and was involved in hiring and other human resources activities.

5United Empl<!)lees of Columbia Gorge Communiry College v. Columbia Gorge Communiry College, Case No. RC-71-90 (1991).

6Mayric Cox's last name was previously York.

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leaves. The College did not place this position in the Union's classified bargaining w1it because it considered it to be a professional position.

13. The most recent revision of the job description for the payroll accountant position occurred in September 2000. According to that description, the position requires a bachelor's degree in accounting, business administration, computer science, economics, or a closely related field with significant accounting and computer course work; and experience in public sector computerized accow1ting systems preparing payroll or significant government accounting course work. The position is paid on a salary basis and is categorized as exempt from overtime.

14. Diana Trubachikhas worked in the payroll accountant position since 2000. Trubachikhas a bachelor's degree in management and an associate's degree in accounting technology. Prior to that, Trubarnik worked as a payroll clerk and a senior accountant. In her position, Trubachik meets with new employees to obtain their payroll information and review benefit options; processes payroll; maintains employee leave accruals and balances; manages workers compensation issues and audits; assists with the budget; monitors, advises, recommends, and assists in implementing IRS and other federal requirements; and assists with payroll and accounts receivable audits. The payroll accountant is also required to interpret policies and regulations of the Bureau of Labor and Industries, Public Employee Retirement System, and family medical leave laws; assist with risk management; exercise independent judgment; and ensure compliance with GAAP.

15. Trubachikmeets with CFO Buchanan, Chief Talent, and Strategy Officer Robb Van Cleave two or three times during the collective bargaining process to assist them in preparing and evaluating economic proposals. Trubachik determines the cost of proposed wages and benefits, accesses the impact on the College's finances, prepares financial information, and makes suggestions for alternative wage and benefit proposals.

16. General Ledger Accountant. During September 2000, the College created a general ledger accountant position to address an increase in the business office's work related to a significant growth in contracts and grants. The College posted the position, which required a bachelor's degree, as an unrepresented professional position.

17. After the general ledger accountant position was posted, bargaining unit employee Cox became aware that the position included some duties she was performing. Since she did not have a bachelor's degree, Cox became concerned that she might be laid off. In late September or early October 2000, the Union filed a grievance over the College's creation of the general ledger accountant as a professional unrepresented

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position to replace a job that had previously been a bargaining unit position. The Union asserted that the position included the bulk of bargaining unit employee Cox's accounting specialist duties, violated the Classified contract recognition clause, and was an attempt by the College to remove duties from the bargaining unit.

18. By memorandum dated October 17, 2000, Director of Resource Development Bob Cole rejected the grievance on the basis that the College was only. obligated to notify the Union about new classified positions and the general ledger accountant was a "[p ]rofessional position that is outside the bargaining agreement." Cole explained that the new position

"involves professional level expertise and requires a Bachelor of Arts degree; an educational level not called for in any classified position. This position is also similar to the Payroll Accountant position that has been in place for more than five years at CGCC and has never been in the classified bargaining unit. * * * The classified unit also does not include several other professional level non-faculty positions. We have never treated the recognition clause of the agreement as covering these positions.

"[A]s the college grows, it is necessary to periodically create new positions. Some will be classified positions, some will be faculty positions, and some will be professional positions. When the new position is a classified position, we will certainly meet and bargain over the placement and compensation. But in this case the Employer has created a Professional position."

19. Sometime after the grievance was filed, then-Union Grievance Steward Dan Ropek, Cox, and CFO Buchanan met to discuss the general ledger accountant position. By e-mail to Buchanan dated October 23, 2000, Ropek confirmed his understanding based on their meeting that neither Cox's duties nor pay would be impacted by the new position, but also stated that the Union was still concerned about the College's method for organizing new positions, the use of professionals to do work previously done by classified employees, the professionaVclassified employee ratio, and the prioritization of positions hired versus needed. Ropek indicated that if Buchanan helped him "to see your position more clearly, I believe that the problems that we are currently having may be quickly resolved."

20. By memorandum. dated October 24, 2000, Director Cole responded to Ropek's e-mail. Cole explained the distinctions between what the College identified as

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(1) administrators; (2) faculty, who provide instruction or teach; (3) staff, who provide support services to college programs; and (4) professional employees, who

"are responsible for program outcomes, they often have the responsibility of supervising other college employees, and they are expected to participate in the development of policies and procedures for the college. They work independently. They might have some teaching assignments, but their primary responsibilities are outside the classroom."

Cole further notified Ropek that "[t]here are 27 classified employees, 4 confidential employees, 17 professional staff, and 6 administrators working for the college."

21. Cox was satisfied with the assurances Buchanan provided about her position and the Union withdrew the grievance.

22. At some point, the College eliminated the general ledger accountant position after it was unable to find a suitable candidate.

23. In April 2001, the Union filed a petition with this Board seeking to merge the faculty and classified bargaining units at the College into one bargaining unit. A hearing was held on the petition on June 21, 2001. In its order dismissing the petition, this Board made the following findings of fact regarding the classified bargaining w1it existing at that time:

"25. The classified bargaining unit includes all classified employees of the College, excluding casual, supervisory, and confidential employees.

"26. The classified unit includes a wide range of jobs such as custodians, groundskeepers, laboratory aides, library assistants, instructional assistants, accounting personnel, secretaries, and computer support technicians.

"27. A college degree is not required for a classified position. Job qualifications require the requisite skills to perform the functions of the position.

"28. The majority of classified employees are employed 12 months per year. They normally work 40 hours per week, Monday through Friday. They are paid on an hourly basis and receive overtime for all hours worked in excess of 40 per week." United Empll!Jiees of Columbia Gorge Community

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College v. Columbia Gorge Community College, Case No. UC-19-01, 19 PECBR 452, 456 (2001).

24. Accountant. In 2003, the College added an unrepresented accountant position in the business office. The current accountant position requires a bachelor's degree in accounting and experience with public sector computerized accounting systems, or significant accounting and computer course work. The accountant is paid on a salary basis and is categorized as exempt from overtime. Regina Sampson has held this position since 2009. Sampson has a bachelor's degree in accounting and previously worked as a staff accountant, audit manager, director of accounting and human resources, and controller.

25. The accountant is responsible for understanding, researching, and applying GAAP standards, and working independently with program managers regarding contracts and grants. Some of the essential functions of the position include preparation of financial statements, general ledger journal vouchers, and monthly general ledger account and bank statement reconciliations; research and analysis; performance of contract and grant accounting, invoicing, and reporting; providing fiscal support for grant proposals; assisting the CFO with monitoring contracts, grants, agreements, leases, budget variances, and capital project activity; and assisting the CFO with budget preparation and state and federal reporting.

26. Foundation Coordinator. In July 2004, the Union filed a grievance over the College's failure to meet with the Union to determine the appropriate unit placement and compensation for several secretary positions and a new foundation coordinator position. In regard to the foundation coordinator position, the College denied the grievance on the basis that the position "is a professional staff position. It is not a classified position." After the parties resolved the issues related to the secretarial positions, the Union notified the College it was withdrawing the grievance regarding the foundation coordinator position without conceding to the College's interpretation or application of the Classified Contract.

27. Network Specialist. In 2004, the College created the position of network specialist. The position description states a preference for a bachelor's degree in computer systems, and requires industry certifications with extensive job experience and two years of experience in Novell Netware Network installation and maintenance. The position is paid on a salary basis and is categorized as exempt from overtime. Christian McQuade has been employed in this position since January 2005. McQuade has six years toward a degree in biology and geography, but no degree. On taking the position, the College required McQuade to obtain a network administrator certification, which he received in

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March 2005. McQuade previously worked as a field engineer and site manager in the aerospace industry and a project manager for an internet service provider, coordinating the installation of fiber optics in homes and businesses.

28. McQuade is responsible for establishing and maintaining the College's communication servers and networks, and for ensuring the confidentiality of user accounts and passwords. McQuade developed and redesigned the College network between its facilities in Hood River and The Dalles; he also coordinated with local internet providers and technicians. McQuade is involved in the selection of network providers based on the project specifications, the best service, and the proposed cost, which is established by the provider using trends for internet traffic generated by the College.

29. Student Life Advisor. In 2007, the College created the position of student life advisor. The student life advisor is a part-time position which oversees student organizations, such as the student council and Phi Theta Kappa society. The position requires a bachelor's degree and preferred experience in conducting student leadership or other college training programs, program planning, and program development. It is categorized as exempt from overtime.

30. Shayna Dahl has worked as the student life advisor since September 2007. Dahl has a bachelor's degree in psychology and a master's degree in family and marital therapy. Dahl mentors and oversees the student organizations' officers on a daily basis, ensuring that they follow proper procedures; teaches and assists with program and event planning; coordinates organization fund raising activities and retreats; and assists in the development of new student organizations. Dahl acts independently in her position and is supervised by the Student Services Officer.

31. Facilities Coordinator - Purchasing, Procurement, and Facilities Specialist. In 2007, the College created the position of facilities coordinator - purchasing, procurement, and facilities specialist which performs duties related to facility project management and procurement administration. The position requires an associate' s degree in construction, business, finance, accounting, or equivalent, or an equivalent combination of education, training, and experience; and a minimum of two years procurement or project management experience or training, or the equivalent related education, training, and experience. The position is paid on a salary basis and categorized as exempt from overtime.

32. Kayleen Warner-Arnes, who has a bachelor's degree in environmental studies, has worked in this position since February 2007. Warner-Arnes acts as the

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College's procurement officer. She is involved in the development, evaluation, and administration of bids and contracts, and provides support to staff on contracts and vendor issues. She works with project managers to ensure that applicable specifications, rules, regulations, bonding requirements, insurance, and payment information are included in staff proposals/requests. She also presents requests for services over $75,000 to the College's Board for approval, recommends whether a proposed purchase has met College and federal requirements, and may consult with the College attorney on procurement. Recently, the position was expanded to include responsibility for sustainability coordination at the College.

33. Life Sldlls Project Specialist. The College created the position of Life Sldlls Project Specialist in March 2007. The position has been vacant since June 13, 2008. The College has no plan to fill this position.7

34. Cost Accountant. In October 2009, the College created the position of cost accountant. The cost accountant position requires a bachelor's degree in accounting or business ad1ninistration with significant accounting course work, and experience in worldng in the public sector with computerized accounting systems or significant accounting and computer course work. The position conducts analysis on payroll items, participates in the development of policy and procedures, and exercises independent judgment and discretion in carrying out duties within general parameters. The cost accountant position is paid on a salary basis and is categorized as exempt from overtime.

35. Sid Spaulding was hired as the cost accountant at the time the position was created. He has a two-year degree in accounting and previously worked at the College as an account specialist, which is a represented position. Some of the essential functions of the cost accountant position include preparing and maintaining cost accounting records related to printing, postage, utilities, and other areas; preparing payroll cost accounting analysis and general ledger journal vouchers; performing cost accounting analysis and reconciliation; handling IRS activity and unclaimed property reporting; recording property tax receipts and account reconciliation; assisting in the control of fixed assets, preparing final budgets and financial statements; performing cash management functions; auditing bookstore deposits and preparing journal entries; organizing and filing accounting data; preparing and collecting materials for the financial audit and required adjustments; preparing reconciliations of the cash till and daily cash; and developing, recommending, and following business office procedures and College policies. Spalding has not been involved in discussions, analysis, or preparation of proposals related to collective bargaining.

7Thc parties introduced no additional evidence regarding this position.

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36. In September 2009, the Union questioned the College about positions it treated as excluded from both the faculty and classified bargaining units. On September 25, 2009, Union President John Copp asked Chief Talent and Strategy Officer Van Cleave to provide him information regarding all unrepresented employees. On November 5, Van Cleave provided Copp a list of 40 unrepresented positions and the reason each position was treated as unrepresented. During a later discussion with Van Cleave, Copp, and AFT-Oregon Field Representative Eben Pullman, the Union identified a number of these unrepresented positions that it believed should be in the classified bargaining unit.

37. On January 4, 2010, after additional communications between the parties, the Union filed a grievance over the College's failure to include the petitioned-for positions in the bargaining unit. The College denied the grievance on the basis that the Union's complaint was not grievable; the grievance was not timely since all of the positions, except the cost accountant, had existed prior to 2007; and the positions at issue were not classified positions, but either professional or confidential positions. The College explained that

"[p ]rofessional staff at the college are responsible for program outcomes, they often have the responsibility of supervising other college employees, and they are expected to participate in the development of policies and procedures for CGCC. They work independently at a level that is consistent with the definitions in federal law for positions that are exempt from overtime requirements. They might have some teaching assignments, but their primary responsibilities are outside the classroom.

"In addition, the positions generally require a bachelor's degree, while classified positions require a high school diploma or associate's degree."

38. The Union eventually withdrew its grievance and proceeded with this petition.

CONCLUSIONS OF LAW


2. The employees in the classifications of payroll accountant; accountant; cost accountant; facilities services coordinator - purchasing, procurement, and facilities projects; network specialist; life skills project specialist; and student life advisor are not

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included within the bargaining unit under the express terms of the contract recognition clause.

DISCUSSION

The Union has petitioned to add a number of positions to its classified bargaining unit, asserting that these positions are included in its bargaining unit under the express terms of the parties' contract recognition clause pursuant to OAR 115-025-0005 (3). The College objects to the petition on the basis that ( 1) the positions sought are not classified employees, but are confidential, administrative, or professional positions excluded from the bargaining unit by law or under .the parties' recognition clause; (2) the positions do not share a community of interest with bargaining unit employees;8 (3) the petition should be denied under the doctrine oflaches9 because n1any of the positions have existed for years and the Union was aware of, but failed to challenge, these positions' unrepresented status; and ( 4) the Union should be estopped from seeldng to include the accountant position because it previously filed, but failed to pursue, a grievance on this position. We begin our analysis of the parties' contentions by reviewing our standards for adding positions to a bargaining unit under the express terms of a collective bargaining agreement.

OAR 115-025-0005(3) provides:


The purpose of a subsection (3) petition is very narrow. A subsection (3) petition is a vehicle for parties to resolve an honest disagreement over whether certain positions

8We do not address the College's objection asserting a lack of community of interest between the petitioned-for positions and the bargaining unit employees because this issue is not appropriately raised under a subsection (3) petition. Maiion Cow191 v. Marion Coun91 Employees Association Local 294, SEIU Local 503, Case No. UC-12-02, 19 PECBR 781, 783 (2002).

9Laches is "[t]he equitable doctrine by which a court denies relief to a claimant who has unreasonably delayed or been negligent in asserting the claim, when that delay or negligence has prejudiced the party against whom relief is sought." Black's Law Dictionary 879 (7'h ed 1999).

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are or are not already included in an existing bargaining unit based on the certification description or the contract recognition language. A subsection (3) petition does not add positions to a bargaining unit;10 we will dismiss a subsection (3) petition if we find it is an attempt to expand the unit by adding positions that are not already covered by the parties' agreement. Oregon Public Empll!Jees Union, SEIU, Local 503 v. State of Oregon, Oregon State Hospital, Case No. UC-37-96, 17 PECBR 434, 440 (1997); OregonAFSCME Council No. 75 v. Housing Authority of Portland, Case No. UC-19-92, 13 PECBR 730, 735 (1992); Oregon AFSCME Council 75 JJ. Clatsop County, Case No. UC-72-91, 13 PECBR 619, 622 (1992).

To decide if positions are included in a bargaining unit under subsection (3), this Board interprets the language of the certification description or recognition clause. We address contract interpretation issues under a subsection (3) petition in the same manner that we address other contract interpretation issues. Oregon AFSCME Council 75, Local 2831 v. Lane County, 23 PECBR at 425. Our goal is to discern the parties' intent. To determine that intent, we apply the three-part analysis described in Lincoln County Education Association v. Lincoln County School District, Case No. UP-14-04, 21 PECBR 20, 29 (2005) (citing Yogman v. PmTott, 325 Or 358, 937 P2d 1019 (1997)).

Under our three-part analysis, we first examine the text of the disputed language in the context of the document as a whole. If the provision is clear, the analysis ends and we enforce that clear language. If the provision is ambiguous, we next examine extrinsic evidence to attempt to resolve the ambiguity. As part of this extrinsic evidence, we consider "other relevant circumstances, including the course of conduct of the parties in their performance of the contract." Oregon Public Empll!Jees Union, 1 7 PECBR at 440. The manner in which parties have conducted themselves under a contract is evidence of their intent. Tarlow v. Amtson, 264 Or 294, 300, 505 P2d 338 (1973). However, "we will examine the parties' prior actions or practice as an aid to contract interpretation on!J if the contract language is ambiguous." Oregon AFSCME Council 75, Local 2831 v. Lane County, 23 PECBR at 425. (Emphasis in original.) We may also look to the parties' bargaining history as evidence of their intent. Oregon AFSCME Council 75, Local #3997 v. Deschutes County, Case No. UP-32-09, 24 PECBR 290, 303 (2011). Finally, if the contract language remains ambiguous, we apply appropriate maxims of contract construction.

10A union may petition to add unrepresented positions to a bargaining unit under OAR 115-025-0005(4). Such petitions require a 30 percent showing of interest, must be filed during the contract open period (in most cases), are subject to the election and certification bars, and require an election. An employer may also object to such a petition on the basis that the positions the union seeks are not appropriately included in the bargaining unit under the factors listed in ORS 243.682.

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The Union argues that the language in the parties' contract recognition clause is clear and unambiguous: it defines the represented group as all classified employees and specifies the limited categories of employees excluded from this group. The Union contends that because the recognition clause does not specifically exclude professional employees from the bargaining unit, these employees are included. According to the Union, the clear language of the contract recognition clause makes it unnecessary to consider any extrinsic evidence.

The College, however, argues that the recognition clause is ambiguous because it does not define the term "classified employee." The College contends that the parties intended this term to apply only to employees who perform clerical or manual labor, and never intended it to apply to employees who have greater responsibility, exercise independent judgment in their work, are exempt from overtime under the Fair Labor Standards Act (FLSA), and work in positions that require a college degree. The College asserts that extrinsic evidence-the parties' discussions at the time they agreed to the recognition clause and their subsequent conduct-demonstrate that the parties never intended to include the professional positions at issue in the classified bargaining unit.

We begin our consideration of the College and Union positions by analyzing the parties' contract recognition clause in the context of the contract as a whole. That clause establishes a bargaining unit of "all classified employees of Columbia Gorge Community College, excluding casual employees, supervisory and confidential employees* **."The term "classified employees" is not defined in the recognition clause: it specifies which employees are excluded from the bargaining unit, not which ones are included.

Contract provisions other than the recognition clause provide no help in determining what the parties intended by the term "classified einployees." Although the contract compensation section lists bargaining unit positions, both the recognition clause and the compensation clause specify the process for adding new positions to the bargaining unit. Therefore, the list of positions in the compensation article is not a complete list of all bargaining unit positions.

In construing an agreement, "[w]e generally give words their ordinary meaning." Oregon AFSCME Council 75 v. State of Oregon, Department of Corrections, Case No. UP-05-06, 22 PECBR 224, 232 (2008). Courts often rely on the dictionary to provide the meanings of a word in its ordinary usage. State v. Moore, 174 Or App 94, 98, 25 P3d 398 (2001). However, relevant dictionary meanings of the term "classified" do not assist us in interpreting what the parties intended by using this word. Webster's Third New Intemational Dictionmy 417 (unabridged ed 2002) defines "classified" as 1 a : consisting of classes b: divided into classes or placed in a class." The word "class" is then

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defined as "a group, set, or ldnd marked by common attributes or a common attribute." (Id. at 416.) For the definition of "classified employee," Roberts Dictionary of Industrial Relations 119 (revised 1994), refers us to the tenn "classified service," which is defined as "[a] system of jobs categorized into a structured hierarchy and usually made part of a civil service system." Thus, we cannot determine from the text and context of the contract, or from dictionary definitions, what the parties intended by their use of the term "classified employee."

Contract language "is ambiguous if it can reasonably be given more than one plausible interpretation." Portland Fire Fighters' Assn. v. City of Portland, 181 Or App 85, 91, 45 P3d 162, rev den, 334 Or 491 (2002). Here, each party offers a plausible interpretation of language in the recognition clause. We conclude that the contract language is ambiguous and move to the second step of our analysis to consider extrinsic evidence of the parties' intent.

The parties' past practice provides the inost reliable evidence of intent. Deschutes County, 24 PECBR at 301. A past practice is established by a course of conduct that is clear and consistent, occurred repetitively over a long period of time, and is acceptable to both parties. Oregon AFSCME Council 75, Local 2831 v. Lane County Human Resources Division, Case No. UP-22-04, 20 PECBR 987, 993 (2005). Acceptability means that the parties had knowledge of the conduct and regarded it as correct and customary or it "may be implied from long acquiescence in a known course of conduct." Id. at 994 (Emphasis in original). We also consider the existence of mutuality in the creation of the practice. Mutuality means that the practice arose from a joint understanding of the parties, either in the inception or execution of the contract. Id. at 993.

The parties' past practice provides reliable evidence that the parties never intended to include professional positions in the classified employees' bargaining unit under the terms of the contract recognition clause. Since at least 2000, the Union has known that the College did not consider professional employees to be part of the classified bargaining unit. 11 In October 2000, in the context of a Union grievance over the creation of the general ledger accountant position, the College specifically notified the Union that it considered the newly-created position to be professional and excluded from the Union bargaining unit. In the course of discussions about the grievance, the College provided

ult may be tme, as the Union argues, that current Union President Copp was not aware that professional employees were excluded from the classified bargaining unit until November 2009. However, the Union is held to the knowledge of its former officers and representatives, who were certainly aware of the College's position that professional positions were excluded.

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the Union with a definition of "professional" employees, explained its position that these employees were not part of the Union bargaining unit, and identified 17 unrepresented professional College positions. (Findings of Fact 19 through 21 ). After the Union resolved its specific concerns about how the general ledger accountant position might affect a current bargaining unit employee, it withdrew its grievance and never objected to the other positions the College asserted were professional and excluded from the Union bargaining unit. In 2004, the Union again failed to object to the College's determination that a position was professional. Although the Union initially grieved the College's decision to treat a new foundation coordinator position as an unrepresented professional, it ultimately withdrew its challenge to the College's exclusion of the position from the classified bargaining unit.

The Union argues that it did not concede its objections to the College's exclusion of professionals when it withdrew these grievances. However, the evidence shows that the Union has never previously objected to the College's exclusion of the entire category of professional positions from the bargaining unit. Until recently, it has objected only to the exclusion of specific professional positions from the bargaining unit. In fact, the Union's conduct in the 2000 grievance over the general ledger accountant position indicates an understanding that professional employees were not part of the bargaining unit. In his correspondence with the College about the grievance, Union steward Ropek objected to the number of excluded professionals and the transfer of Union bargaining unit work to them; he never, however, contested their status as unrepresented employees.

In addition, based on the evidence introduced by the parties at a hearing on the Union's 2001 nierger petition, this Board held that the category of "classified employees" within the classified bargaining unit included positions such as "custodians, groundskeepers, laboratory aides, library assistants, instructional assistants, accounting personnel, secretaries, and computer support technicians" that did not require college degrees, were paid on an hourly basis, and were eligible for overtime. United Emplqyees of Columbia Gorge Community College v. Columbia Gorge Community College, 19 PECBR at 456. This description of the positions in the classified bargaining unit included no reference to the professional employees, even though the Union was clearly aware of the existence of these employees.

We also note that these same parties have recognized the category of "professional support staff" as separate and distinct from the category of "classified employees" under the list of positions excluded from the faculty unit. The parties' separate use of the terms "classified employees" and "professional support staff" in the faculty bargaining 1mit description to which they agreed is consistent with their past practice of treating professional positions as excluded from the classified employee bargaining w1it.

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Thus, the parties' course of conduct in excluding professional employees from the classified bargaining unit constitutes a past practice. The practice is clear, consistent, and long-standing: since at least 2002, the College has excluded professional employees from the Union bargaining unit. The Union knew about the practice as a result of the grievances it filed regarding the College's creation of new professional positions. The Union's acceptance of the practice may be inferred from its acquiescence: the Union did not pursue its grievances about or object to the College's exclusion of professional employees from the Union bargaining unit.

The parties' bargaining history offers no support for the Union's position that the parties intended the recognition clause to include all non-faculty employees, unless specifically excluded under the contract. The recognition clause is based on a bargaining unit description to which the parties agreed to as part of their negotiations for a consent election agreement. There is no evidence that the parties discussed the inclusion or exclusion of "professional support staff" during these negotiations or that such positions even existed at this time. The only relevant discussions involved two employees who the parties agreed were administrators and not part of the classified employee bargaining unit. The parties also agreed that there was no need to specifically provide for the exclusion of these administrators in the description itself. At most, these negotiations indicate that the parties did not intend to limit the exclusions from the bargaining unit only to positions specifically mentioned in the recognition clause.

In conclusion, the extrinsic evidence establishes that the parties did not understand or intend that "professional employees" were included in the classified bargaining unit under the express ten11s of the parties' contract recognition clause. The final issue then is whether the petitioned-for positions are professional employees and, therefore, excluded from the classified bargaining unit. The Union limited its argument to the issue of whether professional positions as a category were included in the bargaining unit and did not address the status of the specific positions at issue. However, since we have determined that professional employees are excluded from the bargaining unit, we must determine whether the employees for whom the Union has petitioned are professionals.

We begin by reviewing our decision in United Empl1D7ees of Columbia Gorge Community College v. Columbia Gorge Community College, 19 PECBR 452, which provides us with guidance in determining who is a classified employee. In that case, we found that classified employees work in positions such as custodians, groundskeepers, laboratory aides, library assistants, instructional assistants, accounting personnel, secretaries, and computer support technicians. The positions classified employees filled do not require a college degree, and the employees were paid on an hourly basis and entitled to overtime.

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I

The positions at issue here have little in common with the classified positions we considered in Columbia Gorge Community College. All of the petitioned-for positions are paid on a salary basis and are categorized as ineligible for overtime. All the positions, except the network specialist, require an associate's or bachelor's degree. While the network specialist position does not require a college degree, the job description does state a preference for a bachelor's degree. We conclude that the petitioned-for positions are professional ones and not included in the Union bargaining unit. We will dismiss the petition. 12

ORDER


SIGNED AND ISSUED this I r;1 t [day of November, 2011.


Vicl<le Cowan, Board Member




12Since we dismiss the petition on this basis, we need not address the College's other objections. We also do not address the status of the life sldlls project specialist position. Neither party introduced specific evidence regarding the requirements or responsibilities of that position. In addition, the College represented that the position was vacant and it has no intention of filling the position in the future.

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OF THE

STATE OF OREGON

Case No. UP-016-11


AMALGAMATED TRANSIT UNION, ) DIVISION 757, )

) Complainant, )

) v. )

) TRI-COUNTY METROPOLITAN ) TRANSPORTATION DISTRICT ) OF OREGON, )

) Respondent. )

~~~~~~~~~~~~~~~)

RULING ON RESPONDENT'S PETITION FOR RECONSIDERATION

On September 12, 2011, this Board issued an Order that concluded that the Tri-County Metropolitan Transportation District of Oregon (TriMet) violated ORS 243.672(1)(e) in negotiations for a successor contract with the Amalgamated Transit Union, Division 757 (Union) when it submitted proposals concerning new issues in its final offer. 24 PECBR 412.

On October 3, 2011, TriMet moved to reopen the record to submit additional evidence, petitioned this Board for reconsideration, and requested oral argument. The Union responded to TriMet's petition on October 13, 2011.

Motion to Reopen the Record

TriMet asks that we reopen the record and admit an additional exhibit that it contends is material to a conclusion in our Order-that TriMet unlawfully included a new proposal concerning employee payment of insurance premiums in its final offer. We held that this final offer proposal was new because TriMet never raised the issue of payment for insurance premiums prior to submitting its final offer. 24 PECBR 412.

Now, TriMet wants to reopen the record and offer as an exhibit attachments to a Februaiy 11, 2010 e-mail that TriMet negotiator Fred Hansen sent to Union negotiator Ronald Heintzman. The attachments contain detailed information about several health insurance plans that Heintzman and Hansen discussed during February and March 2010. Included in these attachments is a page which compares the "Regence BlueCross BlueShield Plan" (Regence plan) offered to non-union TriMet employees to other health plans. The page shows that some TriMet non-w1ion employees who choose the Regence plan pay a portion of their monthly premium costs. Although Hansen's February 11 e-mail was offered and admitted as an exhibit at the hearing in this case, the attachments to the e-mail were not part of this exhibit.

Hansen subsequently referred to these February 11 e-mail attachments in proposals he made to Heintzman. In his February 25 and March 22, 2010 e-mails to Heintzman, Hansen proposed that Union bargaining unit members participate in the same health benefit plans as TriMet non-union employees; he told Heintzman that the attachme11ts to his February 11 e-mail included a full description of these plans.

ATU contends we should admit these February 11 e-mail attachments because they demonstrate that, contrary to the conclusion we reached in our Order, Hansen made proposals about employee payments for health insurance premiums several months before TriMet submitted its July 21, 2010 final offer.

This Board is reluctant to reopen a record for submission of additional evidence and will only do so if the evidence offered is material to the issues presented, was unavailable at the time of the hearing, or there is some other "good and substantial reason" why the evidence was not offered at hearing. Cascade Bargaining Council v. Bend-LaPine School Dist1ict No. 1, Case No. UP-33-97, 17 PECBR 609, 610 (1998). See also Teamsters Local 223 v. City of Medford, Case No. UP-53-10, 24 PECBR225 (2011) (Order on Reconsideration). The February 11 e-mail attachments that TriMet now offers as evidence are clearly material to an issue we considered in our Order-whether ATU's final offer proposal concerning employee payments for health insurance premiums was new. This evidence was, however, available at the time of the hearing, and we would normally refuse to admit it for that reason.

Yet TriMet offers a number of reasons why we should overcome our reluctance to reopen the record and admit the February 11 e-mail attachments as an exhibit. TriMet contends that we should admit the attachments because they "simply confirm that which Hansen wrote on February 11, which is that he was providing the Union with raw data so that the Union could further evaluate TriMet' s position." (TriMet's Petition for Reconsideration, p. 2.) In addition, TriMet argues that admitting the attachments

2

would not prejudice the Union because "Heintzman specifically acla1owledged at the hearing that Hansen had sent them to him as part of the February 11 email." (Id.) In other words, TriMet asserts that we should admit the February 11 e-mail attacl1ments as evidence because the Union negotiator la1ew about them.

This Board can only consider evidence in the record that the parties create. We cannot base our findings and conclusions on facts la10wn only to the parties and never presented to us. TriMet apparently and incorrectly assumed that, given the Union's knowledge of the February 11 e-mail attachments, it was unnecessary to offer the attachments as exhibits or elicit testimony about them from witnesses. This assumption does not justify TriMet's failure to present evidence about the attachments at the hearing, and does not provide a "good and substantial reason" to reopen the record and admit the February 11 e-mail attachments as an exhibit.

TriMet also contends that it was surprised by our conclusion that TriMet's final offer proposal concerning employee payment of insurance premiums was new. According to TriMet,

"the Union did not advance the argument, nor could it have, that TriMet never raised the issue of payment of employee contributions to premiums. Nothing in the Union's complaint, pretrial brief, or opening statement suggested that its allegations were premised upon the fact that it did not know what the numbers of the management health plan were until TriMet submitted its final offer. Nor did the Union in its post-hearing brief make such a suggestion." (TriMet's Petition for Reconsideration, p. 2-3.)

Thus, TriMet asserts that it neither expected nor anticipated our conclusion regarding payments for insurance premium, because the Union never argued this issue. According to TriMet, these circumstances justify reopening the record to admit the February 11 e-mail attachments. We disagree. Contrary to TriMet's assertion, the Union consistently alleged and argued that TriMet's final offer proposal concerning employee payment of insurance premium costs was new.

In its unfair labor practice complaint, the Union alleged that specific sections of TriMet's final offer constitute proposals concerning new issues; one of these sections is the "Active Employee Health Benefits Summary." The final offer is attached to the complaint as Exhibit F; the section entitled "Active Employee Health Benefits Summary" specifies that employees who select certain levels of coverage under the Regence plan must pay a portion of their monthly premium costs. (Union Unfair Labor Practice Complaint, Exhibit F, p. 23.) In a Pre-hearing Memorandum, submitted to this Board

3

and TriMet on May 9, 2011, the Union contended that one of the proposals on a new issue that TriMet unlawfully included in its final offer was a proposal for active employee health benefits that changed "emplqyee contributions." (Union Pre-hearing Brief, p. 8 and 11) (Emphasis added). At the hearing, Union Exhibit C-33 was offered and received; the exhibit compares TriMet's initial offer with its final offer and describes TriMet's final offer concerning health insurance as one that "[r]etains Regence, but changes plans/benefits, out-of-pocket expenses, andemplqyee contributions." (Exhibit C-33, p. 3) (Emphasis added). In its post-hearing brief, the Union summarized the TriMet final offer proposals it contends concern new issues; one of the proposals included in this summary is a proposal that "[r ]etains Regence, but changes plans/benefits, out-of-pocket expenses and emplqyee contlibutions." (Union Post-Hearing brief, p. 6) (Emphasis added).

The record is clear. Throughout the proceedings in this case, the Union alleged and argued that TriMet unlawfully included in its final offer a new proposal concerning employee payment of health insurance premiums. TriMet knew, or should have la1owi1, about this Union contention. Similarly, TriMet understood, or should have understood, the significance of the February 11, 2010 e-mail attachments: they prove that TriMet made a proposal concerning employee payment for insurance premiUins in negotiations. TriMet had every reason to offer these attachments as an exhibit at the hearing, and no reason not to. TriMet's failure to offer the February 11 e-mail attachments as evidence, whether an intentional or negligent act, does not provide a "good and sufficient reason" to reopen the record to admit the attachments. TriMet's motion to reopen the record is denied.

Petition for Reconsideration

In cases such as this one, where no Recommended Order has been issued, we generally grant reconsideration upon a party's request. Teamsters Local 223 v. City of Medford, 24 PECBR at 226. We grant reconsideration to address some issues that require additional clarification, and to correct minor errors in our Order.

In particular, we consider three conclusions in our Order that TriMet challenges. For each of these conclusions, we will review language in the expired collective bargaining agreement, proposals made in bargaining, and proposals included in the final offer.

TriMet's final offer proposal for cost-of-living wage increases is new.

TriMet contends that we erred when we concluded that its final offer proposal for cost-of-living wage increases was new.

4

The parties' expired contract provided that bargaining unit members' salaries would be increased every six months by an amount equal to the Portland CPI-W, with a minimum increase of three percent and a maximum increase of five percent.

In the initial offer and in discussions with Heintzman, TriMet negotiators proposed that the cost-of-living wage increases in the expired contract be replaced by periodic and agreed-upon pay increases.

In its final offer, TriMet proposed to increase bargaining unit members' wages by an amount equal to the Portland CPI-W, with a minimum increase of one percent and a maximum increase of five percent. We concluded that this final offer proposal concerned a new issue and violated subsection (I ) ( e).

TriMet contends that its final offer proposal regarding wage increases logically evolved from and was reasonably comprehended within earlier proposals because the final offer, like TriMet's earlier proposals, provided for periodic wage increases. We disagree.

Prior to submitting its final offer, TriMet offered the Union neither a specific amount by which it was willing to increase wages nor a timetable for the suggested "periodic" increases. Instead, TriMet invited the Union to bargain about these issues. Based on these invitations to bargain, the Union could not reasonably have anticipated the specific wage proposal TriMet included in its final offer. For this reason, TriMet's final offer cost-of-livingwage proposal was not reasonably comprehended within and did not logically evolve from its earlier proposals.

TriMet admits that it

"had not specifically proposed a one-to-five percent CPI-based wage increase prior to filing its final offer. However, that was due to the fact that the Union canceled bargaining sessions and repeatedly declined TriMet's requests for face-to-face meetings - not because TriMet was playing 'hide the ball' with the Union and/or refusing to bargain." (TriMet's Petition for Reconsideration, p. 11-12.)

TriMet's argument misses the point. A public employer that submits a new proposal in a final offer engages in "conduct 'so inimical to the bargaining process'" that it commits a per se violation of subsection (l)(e). Pmtland Police Association v. Ciry of Portland, Case No. UP-64-01, 20 PECBR 295, 310 (2003). TriMet acted unlawfully when it included a wage proposal in its final offer that concerned a new issue; no

5

additional evidence was relevant or necessary to prove this violation of the Public Employee Collective Bargaining Act. As a result, evidence that TriMet tried to bargain about this issue and the Union refused to do so has no bearing on this conclusion.

T1iMet's final offer proposal for retiree health care benefits is new.

TriMet asserts that we erroneously concluded that its final offer proposal for retiree health care benefits was new.

The parties' expired contract provided all post-February 1992 retirees with the same health care benefits as active employees.

TriMet's initial proposal did not address retirees' health care benefits.

In February and March 2010 e-mails to Heintzman, TriMet negotiator Hansen made the following proposals: future retirees who were not eligible for Medicare would receive TriMet-paid health care coverage for three years, and future retirees who were Medicare eligible would receive a fixed monthly amount from TriMet to pay for supplemental health insurance. Hansen explained that TriMet understood that it must negotiate with the Union about the amount of the monthly payment.

In its final offer, TriMet proposed a number of specific changes in retirees' health benefits; the amount and nature of the benefits provided to retirees varied, depending on an individual's date of hire and date of retirement. We concluded that these proposals concerned new issues because they did not logically evolve from and were not reasonably comprehended within Hansen's earlier proposals. TriMet asserts that our conclusion is erroneous because

"TriMet clearly made it known that it was proposing a fixed monthly sum for future retirees in place of supplemental medical insurance and up to three years of health insurance coverage for retirees not eligible for Medicare. The Union la1ew that and, rather than bargain with TriMet, repeatedly stated that its membership would never agree to those changes and that an arbitrator would have to decide the matter. Consequently, TriMet's final offer with regard to retiree medical benefits logically evolved from or was reasonably comprehended within its earlier proposals, and TriMet should not be ordered to submit a revised final offer excluding those items." (TriMet's Petition for Reconsideration, p. 18.)

6

TriMet's argument fails for the same reason its argument concerning its final offer proposal for cost-of-living wage increases fails. TriMet committed a per se violation of subsection (l)(e) when it included in its final offer a new proposal that specified the monthly amount retirees eligible for Medicare would receive to pay for health insurance. Even if the Union refused to negotiate about this proposal, its actions are not relevant to our conclusion.

T1iMet' s final offer proposal regarding empli!Yee payment for health insurance premiums is new.

TriMet asserts that we erred in concluding that its final offer proposal regarding employee payment of health insurance premiums was new.

Under the expired contract, TriMet paid the full cost of Union bargaining unit members' monthly health insurance premiums.

In its initial proposal, TriMet stated that it was willing to provide Union bargaining unit members with the same health care coverage provided to all non-union TriMet employees. Hansen made this same proposal in February and March 2010 e-mails to Heintzman.

In its final offer, TriMet proposed that Union bargaining unit men1bers receive the same health care plans as TriMet management employees, and also proposed that employees who selected certain Regence plans pay a portion of their monthly premium costs.

We held that TriMet's final offer proposal regarding employee payment of insurance premiums was new. TriMet contends, however, that this proposal was not new to the Union. According to TriMet, the health care plans it offered the Union throughout bargaining-the same plans as offered to non-union TriMet employees-required employees who selected certain Regence plans to pay part of their premium costs. In support of its contention, TriMet points to the attachments Hansen included in his February 11 e-mail to Heintzman. TriMet notes that one page in the attachments provides a detailed description of the health care plans offered to non-union TriMet employees; included in the description is a list of premium costs employees who select certain Regence plans must pay.

As discussed previously, the record is devoid of evidence to support TriMet's argument. TriMet did not offer the February 11 e-mail attachments as an exhibit at the hearing, and we refuse to reopen the record to now admit it. TriMet has cited no other evidence in the record that demonstrates it made a proposal concerning employee

7

payment of insurance premiums during negotiations. Consequently, the evidence shows that TriMet's final offer proposal on this issue is new.

Conclusion

The remainder ofTriMet's Petition to Reopen concerns issues we considered and discussed in our Order. We will not repeat our discussion here.

TriMet points out that we made two typographical errors in our Order, and we take this opportunity to correct them. In Finding of Fact 23, we found that Heintzman and Hansen canceled a planned meeting because "Hansen had urgent and tmexpected business to which he needed to attend." The evidence shows that it was Heintzman who was unable to attend the meeting. In the third paragraph on page 31 of our Order, we state that TriMet proposed a two year contract in its final offer; TriMet actually proposed a three year contract.

We will deny T riMet' s request for oral argument. Because TriMet has fully argued its position in its Petition for Reconsideration and the Union has responded to the Petition, oral argument is unnecessary.

ORDER

1. TriMet's Motion to Reopen the Record is denied.

2. TriMet's Petition for Reconsideration is granted. We adhere to our Order of September 12, 2011, except for the following changes:

Finding of Fact 23 is amended to read as follows: "Although Hansen and Heinzman planned to meet on March 19, 2010, they were unable to do so because Heintzman had urgent and unexpected business to which he needed to attend."

The first sentence in the third paragraph on page 31 is changed to read as follows: "TriMet's final offer proposal for a three year contract was thus directly responsive to an issue raised by the Union in negotiations."

II

II

II

8

3. TriMet's request for oral argument is denied.

DATED this , y,L~

I 1 - day of November 2011.


Viade Cowan, Board Member




9


OF THE

STATE OF OREGON

Case No UP-7-08


CLACKAMAS COUNTY EMPLOYEES' ASSOCIATION,

Complainant,

v.

CLACKAMAS COUNTY/CLACKAMAS COUNTY DISTRICT ATTORNEY,

Respondent.

) ) ) ) ) ) ) ) ) ) ) ) )

--------------~)

ORDER ON REMAND

This Board issued an Order on April 15, 2009, dismissing the complaint in this matter. 23 PECBR 90 (2009). On May 25, 2011, the Court of Appeals remanded the case to this Board. 243 Or App 34, __ P3d __ (2011). An appellate judgment was issued on August 30, 2011.

In our original Order, we dismissed the Association's complaint which alleged that statements the Clackamas County (County) District Attorney made to a Clackamas County Employees' Association (Association) representative violated ORS 243.672(1)(a). County District Attorney John Foote made these statements at a meeting in which Association Vice President Felipe Morales represented a bargaining unit member whom Foote wanted to discharge. At the meeting, Foote became angry at Morales and told Morales that if he did not stop smirldng, Foote would remove him from the District Attorney's office and never allow him to return. After the meeting, Foote told other employees that Morales would not be barred from the District Attorney's office.

We applied the standard we use to determine whether threats made by an employer violate subsection ( 1) (a) of ORS 243. 6 72: whether the threats have the natural and probable effect of chilling employees in their exercise of rights protected under the Public Employee Collective Bargaining Act (PECBA). We concluded that Foote's remarks to Morales did not have this type of chilling effect and did not violate subsection (1 ) (a). We based our conclusion on "the impulsive and brief nature of Foote's statements, the lack of any threat of adverse employment-related consequences to Morales," and Foote's prompt disavowal of any intent to bar Morales from the District Attorney's office. 23 PECBR at 99.

The Association petitioned for judicial review, asserting that we erred in dismissing the complaint. The Court of Appeals agreed with the Association. In its decision, the court distinguished between employer statements that constitute threats "directed at protected activity" and statements that are "generic expressions of anger that inay be made in the heat of a collective bargaining dispute." 243 Or App at 42. It cited two of our cases to illustrate this distinction. In Oreg01i Public Emplqyees Union v. Jefferson County, Case No. UP-20-99, 18 PECBR 310 (1999) (OPEU I), a county commissioner told the local union president that the commissioner wanted the bargaining unit to be represented by a different union, that the commissioner wanted specific union staff members removed from the bargaining unit, and that the commissioner would not bargain with certain members of the union bargaining team. We concluded that the commissioner's statements violated subsection ( 1 )(a) because they demonstrated that the commissioner was unwilling to engage in an activity protected under the PECBA: negotiations. In Oregon Public Emplqyees Union v. Jefferson County, Case No. UP-19-99, 18 PECBR 245 (1999) (OPEU II), we held that statements by the same county commissioner-words to the effect that he was so angry at the public employees picketing his business that he could kill someone-did not violate the law. We reasoned that the commissioner's statements did not concern PECBA-protected rights.

In regard to these cases, the Court of Appeals stated:

"We find persuasive the board's reasoning in OPEU I that state1nents 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. And, as OPEU II illustrates, harsh language alone does not constitute an unfair labor practice." 243 Or App at 42) (Footnote omitted).

The court held that District Attorney Foote's statements, in which he "threatened to remove an association representative from a protected meeting and threatened to

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never allow the representative to attend a meeting in the district attorney's office again," were directed at protected activity. Id. The court concluded that these statements would chill Association bargaining unit members in their exercise of protected rights. Accordingly, the court held that we incorrectly interpreted ORS 243. 6 72 ( 1) (a) when we concluded that the District Attorney's statements did not "interfere with, restrain, or coerce employees in the exercise of protected activity," and remanded the case to us. 243 Or App at 43.

Because the court held that the District Attorney's statements violated ORS 243.672(l)(a), the only issue left for us is to formulate an appropriate remedy.

When we conclude that a party engaged in an unfair labor practice, we must order the party to cease and desist from the unlawful activity. ORS 243.676(2)(c). A cease and desist order is the appropriate remedy in this case, and we will issue such an order. 1

ORDER

The County will cease and desist from violating ORS 243.672(1)(a).

DATED this ----'-/-~_'_'_day of November 2011.






1We also note that the Association can file a petition for representation costs under OAR 115-035-0055, and we will consider its request at the appropriate time.

-3-


OF THE

STATE OF OREGON

Case No. UC-11-10


SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 503, OREGON PUBLIC EMPLOYEES UNION,

Petitioner,

v.

MARION COUNTY,

Respondent.

) ) ) ) ) ) ) ) ) ) ) )


On May 25, 2011, this Board heard oral argument on both parties' objections to a Recommended Order issued by Administrative Law Judge (ALJ) B. Carlton Grew on February 28, 2011, following a hearing on July 27 and 28, 2010, in Salem, Oregon. The record closed on September 13, 2010, with receipt of the parties' post-hearing briefs.

Joel Rosenblit,Attorney, SEIU Local 503, OPEU, Salem, Oregon, represented Petitioner.

Jeffrey P. Chicoine, Attorney, Miller Nash LLP, Portland, Oregon, represented Respondent.

On May 3, 2010, Service Employees International Union Local 503, Oregon Public Employees Union, Marion County Employees Association (MCENSEIU or Union) filed this Petition under OAR 115-025-0005(4) seeking to add approximately 120 temporary employees to its strike-permitted bargaining unit of Marion County (County) employees. The County filed timely objections on May 24, 2010, asserting that (1) the Petition was untimely; (2) clarification of the temporary employees into the existing bargaining units was not appropriate because temporary employees did not share

a community of interest with bargaining unit members; and (3) granting the Petition would cause fragmentation of the County's temporary employee workforce.

MCENSEIU's Petition included the employees of the Marion County Housing Authority. The parties stipulated at hearing that the Housing Authority is not a County department and should be removed from the Petition. Also at hearing, the Union withdrew its effort to represent the Deputy County Clerk, asked leave to amend its Petition to include all temporary employees in classifications it represented, and asked that the record be held open to permit the Union to find and introduce additional evidence about those employees. The County objected to the proposed amendment and holding the record open. The Union withdrew its request to amend the Petition after hearing.


1. Is the Petition timely?

2. Is it appropriate to add the following employees to the SEIU bargaining unit:

All temporary, non-casual employees in the Assessor's Office, Board of Commissioners Office, Business Services, Children and Families, Courts, District Attorney's Office, Health and Services, Information Technology, Juvenile Department, Legal Counsel, Public Works, Treasurer's Office, and Sheriff's Office1 in the following job classifications:

Behavioral Health Aide, Building Plans Examiner l; Case Aide; Civil Engineering Associate l; Department Specialist 1, 2, and 3; Drug Treatment Associate; Electrician l; Health Educator 1 and 2; Legal Secretary 1; Library Assistant; Maintenance Worker; Management Analyst 2; Medical Technologist; Mental Health Associate; Mental Health Specialist 1 and 2; Nutrition Aide; On-Site Wastewater Specialist; Permit Specialist; Plumbing Inspector; Programmer Analyst 1, 2 and 32

; Public

1The Petition did not include temporary employees in the County Clerk's Office and Finance Department, although each of those departments employ temporary employees in classifications represented by the Union.

2The Union identified this position as "Program Analyst" in its Petition.

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Health Aide; Public Works Aide; Support Specialist; Victim Assistance Advocate; and Youth and Family Counselor.3

Excluding: Casual employees4; interns, practicum and work study students

provided they are paid by their schools; independent contractors; temporary employees in job classifications represented by other labor organizations if the job classification is not a classification represented by SEIU Local 503, OPEU; temporary employees hired by agencies that contract with the County and employees not directly employed by the County; and temporary supervisory and temporary confidential employees.

3The Petition does not include tempora1y employees filling positions in several Unionrepresented classifications in the County departments named in the Petition. These positions are: Custodial Worker, Disease Investigation & Control, Election Clerk, Election Technician, Investigator, Licensed Practical Nurse, Mail Courier, Scale Attendant, Shelter Technician, and Volunteer Services Coordinator.

In addition, the Union offered no evidence or argument regarding the following positions listed in its Petition: Electrician 1, Health Educator 1, Programmer Analyst 1and2, Support Specialist, and Victim Assistance Advocate, and in some cases it is unclear what department these positions are part of.

4The parties stipulated to a list of 19 casual employees. These employees work in the same classifications and perform the same duties as some temporary employees in the proposed unit, but worked fewer hours during the relevant time frame. The employees are: Kerry Blum, Mental Health Specialist 2 (Health); Jordan Burgess, Behavioral Health Aide (Health); Nataliya Butsemia, Mental Health Specialist 2 (Health); Jamila Gordon, Mental Health Specialist 2 (Health); Eusebia Herrera-Perez, Mental Health Associate (Health); Laura Jirges, Department Specialist 1 (Public Works) and on-call Debt Specialist; Brenda Lee, Mental Health Associate (Health); Kristin Link, Mental Health Associate (Health); John Mack, Mental Health Specialist 2 (Health); Kristin Minahan, Department Specialist 2 (Health); Judith Morehead, Mental Health Specialist 2 (Health); Don Oswalt, Library Assistant (Legal); Rosemary Players, Department Specialist 2 (Health); Martin Roberts, Maintenance Worker (Public Works); Ruth Sanchez, Department Specialist 2 (Health); Lora Sauermann, on-call Building Plans Examiner 1 (Public Works); Rene Senecault, Jr., on-citllP!umbing Inspector (Public Works); Tamalyne Varner, Department Specialist 2 (Business Services); and Rebecca Weinstein, Youth and Family Counselor (Juvenile).

In its post-hearing brief, the Union conceded that the following are also casual employees: Terri Chapman, Mental Health Specialist 2 (Health), and Darlene Martin, Building Permit Technician (Public Works).

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RULINGS

At hearing, the Union asked to amend its Petition to include all temporary employees in classifications it represented, and asked that the record be held open to permit the Union to find and introduce additional evidence about those employees. The ALJ reserved ruling on the amendment to the Petition, but denied the motion to hold the record open. The ALJ reasoned that the Union failed to show that it was unable to obtain this information prior to hearing. That ruling was rendered moot by the Union's decision to withdraw its motion to amend the Petition.


FINDINGS OF FACT

1. The Union, a labor organization as defined by ORS 243.650(13), represents a collective bargaining unit of approximately 763 strike-permitted workers employed by the County, a public employer as defined by ORS 243.650(20).

2. The County has 14 departments, eight headed by appointed directors (Health, Children and Families, Finance, Business Services, Information Technolo!,ry, Juvenile, Legal Cow1sel, and Public Works) and seven by elected officials (Assessor/Tax, Clerk, District Attorney, Board of Commissioners, Justice Courts, Sheriff, and Treasurer). As of July 19, 2010, the County employed approximately 1,500 individuals.

3. In addition to the Union bargaining unit, there are four other bargaining units in the County: ( 1) the Marion County Law Enforcement Association (MCLEA) with 225 strike-prohibited employees; (2) the Federation of Parole and Probation Officers (POPPO) with 41 strike-prohibited employees; (3) the Marion County Juvenile Employees Association (MCJEA) with 35 strike-prohibited employees; and (4) the Oregon Nurses Association (ONA) with 20 strike-permitted employees.

4. The Union and the County have bargained collectively since at least 1977, and were parties to a collective bargaining agreement in effect from July 2008 until June 30, 2010.5 The recognition clause of that agreement provides, in part:

"The Employer recognizes the SEIU Local 503, OPEU/MCEA, Local 294 as the sole and exclusive bargaining representative for ALL regular

5 At the time of hearing, the parties had completed successor bargaining and were awaiting ratification of a tentative agreement. The successor agreement did not alter the unit description.

- 4 -

employees except supervisory and confidential employees or employees represented by other labor organizations or employees considered prohibited from striking within the definition of ORS 243. 736."

The bargaining unit description has remained the same since the 2001 agreement. The term "regular employee" has never been defined in the parties' collective bargaining agreements.

5. In April 2006, this Board considered a unit clarification case involving the same parties, Service Emplqyees Intemational Union Local 503 v. Marion County, Case Nos. UC-32/33-04, 21 PECBR 327 (2006), recons, 21 PECBR 482 (2006), AWOP, 215 Or App 501, 170 P3d 8, 9 (2007). The relevant issues in UC-32/33-04 were: "(l) whether it is appropriate to add temporary employees to the County's strike-permitted bargaining unit; and (2) whether it is appropriate to add temporary employees to the County's strike-prohibited bargaining unit." 21 PECBR at 328. This Board denied the petition6

•

6. The Union bargaining unit includes regular employees in 184 different classifications. As of June 14, 2010, temporary employees filled positions in 35 of those classifications. 7 Temporary employees may fill positions in any County job classification.

7. County personnel rules define a "regular" employee as " [an] employee who fills a budgeted position and who has satisfactorily completed the employee's first trial service period." This definition dates back to the 1980s. County personnel rules define "Regular Position" as a "position included in the annual budget." The County has used the term "regular employees" to define the Union unit since 1995.

6The Petition in UC-32-04 sought to add: "Non-Strikeable temporary employees directly hired by Marion County as defined in Article 39, Section l.A. of the collective bargaining agreement * * * . Excluded are: Interns, practicum and work study students provided they are paid by their schools; independent contractors; temporary employees in job classifications represented by other labor organizations if the job classification is not a classification represented by SEIU Local 503, OPEU; temporary employees hired by agencies that contract with the County and are not directly employed by the County; and temporary supervisory and tempora1y confidential employees."

7There are 184 Union bargaining unit job classifications; tempora1y employees may fill positions in any of these classifications. As of June 10, 2010, temporary employees filled positions in 35 of the 184 Union bargaining unit job classifications; the Union seeks to represent temporary employees filling positions in 25 of these job classifications. The Union has not stated its rationale for excluding some temporary positions from its Petition.

- 5 -

8. County personnel rules define "temporary employees" as "[ e ]mployees hired on a short-term basis who do not fill regular positions." The County allocates a specific amount of funds to its departments for temporary employees. The departments decide how many to hire and in what classifications.

9. Cmmty personnel rules state that temporary employees may serve as seasonal workers, on-call relief, fill vacancies in budgeted positions due to regular employee leave, perform work on special projects, or perform extra work of limited duration.

10. The parties' collective bargaining agreement addresses temporary employees and their roles:

"ARTICLE 34 -TEMPORARY EMPLOYEES

"Section 1. Definitions.

"A. Temporary Employee [sic] is a person who is employed by Marion County in a non-budgeted position to perform the following services:

"1. Seasonal or on-call relief;

"2. Filling a vacancy in a budgeted position due to:

"a. Sick leave, parental leave, vacation leave, military leave, or

"b. Shift work, injury or during recruitment.

"3. Special projects and extra work of limited duration.

"B. Temporary employment is distinguished from regular, parttime employment in that regular, part-time employment relates to a budgeted position for which there are some benefits. Interns, practicum and work study students are not temporary employees provided the interns, practicum and work study students are paid by the schools or are otherwise not covered by the terms of this Agreement.

- 6 -

"C. Temporary work is defined as that which is limited to nine hundred seventy five (975) hours based upon a thirty seven and one-half (37.5)-hour workweek or one thousand forty (1,040) hours based upon a forty ( 40 )-hour workweek within a twelve (12)-month period.

"Section 2. Policy. No temporary employee can perform temporary work for more than nine hundred seventy-five (975) hours or one thousand forty (1,040) hours in a twelve (12)-month period commencing with the date of hire. A temporary employee may work more than twelve (12) months provided they do not exceed their yearly allocation of hours and they comply with the definitions set forth above. Once the temporary employee has performed temporary work for nine hundred seventy five (975) hours or one thousand forty (1,040) hours in any twelve (12)-month period, the temporary employee shall be terminated and the County will not hire another temporary employee in the same twelve ( 12)-month period unless the department is granted an extension by the Labor-Management Committee or the department has requested and the County has approved a budgeted position.

"Employees may fill both regular, part-time positions and temporary positions in two (2) or more departments provided they do not work more than nine hundred seventy five (975) or one thousand forty ( 1,040) hours in a twelve(l2)-month period.

"Section 3. Extension Procedure. The Labor-Management Committee's approval is required for extensions. Requests must be made thirty (30) days prior to reaching the nine hundred seventy five (97 5) or one thousand forty (1,040)-hour deadlines. Any extension granted by the Labor-Management Committee will result in the employee continuing their employment as a temporary employee doing temporary work. "8

11. County officials periodically determine that a "temporary employee" is in fact worldng the same hours as a "regular employee." In such cases, County practice is to convert the position to a regular position and the employee to a regular employee.

8The parties used this provision to extend tempora1y employees beyond half-time status 18 times between May 1, 2007 and June 7, 2010, including three times since May 30, 2009.

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Hiring and Working Conditions: Union Regular Employees

12. A County department that wishes to hire a regular employee submits a hiring request to the County's Human Resources Department (HR). HR may notify laid off employees of the open position, and may conduct an internal recruitment process, where current County employees are notified first about the job opening and given an opportunity to apply before the general public is able to do so.

13. HR accepts and scores the applications for all regular job openings, screens applicants, selects a group of eligible candidates for the position, and gives the list of eligible applicants to the appropriate department. The County department then interviews candidates from this list and selects an applicant for the position.

14. Under the Union/County collective bargaining agreement, regular employees in the Union bargaining unit receive health insurance benefits, holidays, paid vacations, and other types of paid and unpaid leave. They also participate in the Public Employees Retirement System (PERS) after six months of service to the County, and the County pays the employees' contribution to PERS as a pre-tax contribution.

15. Regular employees are paid on a step system set by the Union/County collective bargaining agreement. These employees receive regular step increases or, if at the top step, longevity pay.

16. Regular employees are subject to routine performance appraisals, and their discipline is subject to a contractually guaranteed just-cause standard. Regular employees are not subject to layoff until the relevant temporary staff have been laid off.

Hiring and Worldng Conditions: Temporary Employees

17. Individual County departments are responsible for recruitment, selection, and hiring of all temporary employees. HR's involvement is typically only the posting of available positions for temporary work.

18. Temporary workers are generally hired, and remain, on step one of the salary scale for their classification.

19. Temporary employees, as defined by County policies, can hold that status indefinitely.

- 8 -

20. Several County departments regularly use temporary employees, including Juvenile, Health, Public Works, and Elections. Under County policy, however, County departments do not have specific, budgeted temporary positions. Instead, each department budgets a certain amount of money for temporary employees.

21. Temporary employees become members of PERS after six months of service with the County. The County does not pay the employee contribution to PERS. Temporary employees receive no other benefits except those mandated by state and federal law. Temporary employees were eligible for holiday pay prior to 2004 but are no longer eligible for this benefit.

22. Temporary employees need not receive regular performance appraisals, are employed at will, and are not entitled to progressive discipline or a procedure to grieve disciplinary actions.

23. The duties performed by temporary employees and regular employees in a particular job classification are substantially the same.

24. Temporary employees and regular employees have common supervision.

25. Temporary employees may have an assigned shift and hours, but generally only for a fixed or defined term. For example, temporary summer Public Works Maintenance Workers work regular shifts, but only for the summer, and an employee filling a vacancy will work the vacant position's regular shift until the vacancy is filled by a regular employee.

26. On-call tempora1y employees are permitted to reject assignments.

27. Turnover among temporary employees is high. The Health Department, in particular, frequently recruits temporary Nutrition Aides and Department Specialists.

28. From January 1, 2007 to July 27, 2010, County departments engaged in 350 recruitment efforts for temporary employees and hired 346 temporary employees. Of that number, 130 employees worked in classifications containing regular employees in the Union bargaining unit, and 93 of these employees worked in classifications covered by this Petition. Of the 346 employees, 115 were in the Health Department and 110 were in Public Works.

29. From May 1, 2009 to April 30, 2010, 94 temporary employees worked in classifications covered by this Petition. Of that 94, 2 7 had previously worked once as

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temporary employees: one had previously worked five times as a temporary employee, four had previously worked four times as temporary employees, five had previously worked three times as temporary employees, and 17 had previously worked twice as temporary employees.

30. Temporary employees who wish to apply for regular positions with the County must participate in the County HR application and selection process. Under the terms of the 2004-2006 CountyNnion collective bargaining agreement, temporary employees are eligible to apply for positions through the internal recruitment process offered to regular employees.9 The County gives no preference to temporary employees in hiring for temporary or regular positions, although as applicants they may benefit from familiarity with the work, County procedures, and County personnel.

31. Of the approximately 7 60 regular employees in the Union unit, 22 7 were previously temporary workers. Of that 227, 149 are in the same job classification in which they worked as temporary employees.

32. The Union did not include the following classifications in its Petition, even though temporary employees filled positions in these classifications at the time of the hearing: Custodial Worker 1, Disease Investigation and Control Specialist 1, Elections Clerk, Elections Technician, Investigator, LPN, Mail Courier, Medical Technologist Senior, Scale Attendant, Shelter Technician, and Volunteer Services Coordinator.

Public Works Department

33. In the Public Works Department, the Union seeks to add to its bargaining unit temporary employees filling positions in approximately 11 Union-represented classifications. Most of these temporary employees are summer Maintenance Workers; others are employed as winter Maintenance Workers; Building Plans Examiner l; Civil Engineering Associate l; Department Specialist 1, 2, and 3; Electrician l; Management Analyst 2; On-Site Wastewater Specialist 2; Permit Specialist; Plumbing Inspector; and Public Works Aide.

34. The Public Works Department has 191 regular budgeted positions. During the 2009-2010 fiscal year, the Department employed 35 temporary summer or winter Maintenance Workers.

9Prior to the implementation of the 2004-2006 Union/County collective bargaining agreement, temporary employees were not eligible to apply for positions through the internal recruitment process.

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35. Many regular Public Works e1nployees are required to have commercial drivers licenses, and special licenses, such as an herbicide applicator's license. Temporary employees are not subject to these requirements.

36. Approximately one-third of the Public Works temporary employees are students, and approximately one-third have other employment.

3 7. The Department hired one temporary employee as a regular employee in 2008, two in 2009, and two in 2010.

Maintenance Workers

38. Most of the Public Works temporary Maintenance Workers work regular shifts during the summer. They are employed to free up regular employees to operate heavy equipment. Temporary employees perform manual work to assist in road construction, such as flagging, setting up temporary signs, and operating pilot cars. They also work on the vegetation crew. The eight temporary winter Maintenance Workers clear drains and ditches, perform traffic control, or act as helpers for snowplow operators, and do not work regular shifts.

39. Public Works temporary Maintenance Workers work regular assigned shifts, but are sent home without pay when the work is interrupted, such as by changes in the weather.

40. The County employs the following temporary Maintenance Workers:

• Daniel Bobo was hired in 2010. He worked 153 hours from February through April 2010. He works Monday through Thursday, four ten-hour days perweek.

• Lyle Cochran was rehired in 2010. He worked 1,004 hours in 2008 and 863.5 hours in 2009. He worked 160 hours from February through April 2010. He works Tuesday through Friday, four ten-hour days per week.

• Taylor Conder was rehired in April 2010. He worked 519.5 hours in 2008 and 513.3 hours in2009. He worked 79.5 hours from February through April, 2010. He works Monday through Thursday, four ten-hour days per week.

• Randy Favre was first hired in 2007. Favre worked 623.5 hours in 2007, 775.5 hours in 2008, and 635 hours in 2009. He worked 217 hours from November 2009 through January 2010, and 216 hours from February through April 2010,

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averaging approximately 16. 7 hours per week. He worked a four ten-hour days per week schedule. In the year before the Petition was filed, half the time his schedule was Monday, Tuesday, Wednesday and Friday, and half of the time it was Monday, Tuesday, Thursday and Friday.

• Charles Hackett was hired in 2010. He worked 154.5 hours from February through April 2010. He works four ten-hour days, Monday through Thursday.

• Joseph Howard was rehired in 2010. He worked 80 hours in April 2010. Howard worked 848.5 hours in 2009. He works four ten-hour days, Monday through Thursday.

• Amber Kirby works four ten-hour days per week. During the summer of 2008, she worked 91 7 hours. She did not work in 2009. Kirby worked 80 hours from February through April 2010.

• Chad Minnich worked 759.5 hours in 2009 and 81.5 hours from February through April 2010. He works a four ten-hour days per week schedule, Monday through Thursday.

Other Public Worlcs Emplqyees

41. During the 2009-2010 fiscal year, the Public Works Department employed one temporary employee on a specific project and six temporary employees in on-call positions. The Department uses three temporary Public Works assistants to clean and perform light maintenance, to collect tolls, or to provide other help on the County's two ferries. The Public Works Department also employs five temporary Department specialist employees in its Administrative Division to assist with filing and general office work. Another temporary employee filled in for an animal shelter employee on maternity leave.

42. The Public Works Department employs the following te1nporary employees:

• Craig Clark has worked each of the last six years as an On Site Wastewater Specialist 2. He worked 314 hours in 2005, 804.8 hours in 2006, 388 hours in 2007, 12.5 hours in 2008, and 268 hours in 2009. He worked 49 hours from May through July 2009, 148 hours from August through October 2009, 13.5 hours from November 2009 through January 2010, and 69.5 hours from February through April 2010.

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• Kasi Clark works as a Public Works Aide. She worked 1,029.5 hours in 2006, 943.8 hours in 2007, no hours in 2008 or 2009, and 393.8 hours from February through April 2010, an average of 30.3 hours per week. She works Monday through Friday, and some Saturdays.

• Gordon Tracy has worked as a Management Analyst 2 since at least 2005. In 2005 he worked 888 hours, in 2006 he worked 814 hours, in 2007 he worked 737 hours, in 2008 he worked 772 hours, and in 2009 he worked 796.5 hours. He worked 192 hours from May through July 2009, an average of 14.8 hours per week; 199.5 hours from August through October 2009, an average of 15.4 hours per week; 206 hours from November 2009 through January 2010, an average of 15.9 hours per week; and 200 hours from February through April 2010, an average of 15. 4 hours per week. He works Tuesdays and Wednesdays for eight hours a day.

Health Department Temporary Employees

43. The Health Department provides mental health se1vices through several programs, including the Psychiatric Crisis Center (PCC), a Respite program, client Cottages, and the Adaptive Community Integrated Support Team (ACIST), an intensive case management team. The Department provides these services through Mental Health Specialists (MHSs), Mental Health Associates (MHAs), and Behavioral Health Aides (BHAs). An MHS must be a certified Qualified Mental Health Professional (QMHP) and generally has a Masters degree. The Health Department employs regular and temporary MHS and MHA employees.

In the PCC and Respite programs, the Department employs six and one-half regular MHS employees and four regular MHAs. ACIST has three full time MHAs. The Cottages have ten regular MHA employees and three non-credentialed BHA temporary employees filling in for absences and vacancies.

44. The Health Department also includes a significant administrative and support staff. Much of the clerical support is provided by Department Specialists.

45. The PCC provides emergency mental health services to eligible clients. The PCC MHSs screen people undergoing mental health crises and decide whether they need in-patient care or community-based services. The screenings take place at any time of the day or night at Salem Hospital and during nights and weekends at Silverton, Newburg, and McMinnville hospitals.

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46. The County's Respite program provides community-based mental health care. County MHAs provide "supportive activity" for Respite clients, such as monitoring their condition and use of medication and transporting them to appointments. The Respite program employs regular and temporary MHAs.

47. The Union seeks to add to its bargaining unit temporary employees filling positions in approximately 13 Union-represented classifications in the Health Department. The positions these temporary workers fill are: Behavioral Health Aide; Department Specialist 1, 2, and 3; Drug Treatment Associate; Health Educator 1 and 2; Medical Technologist; Mental Health Associate; Mental Health Specialist 1 and 2; Nutrition Aide; and Public Health Aide.

48. The Health Department has at least 150 regular budgeted positions in the Union bargaining unit, not counting positions in classifications shared with other departn1ents such as Department Specialists. As of July 8, 2010, the Department employed approximately 70 temporary employees.

49. As of July 15, 2010, the Health Department had a temporary pool of 14 MHSs and 14 MHAs. Fifteen of them had other, full-time jobs, one was a full-time student, and three were retired. Only five were looking for regular, full-time work.

50. Regular MHS and MHA employees perform case management, counsel clients, and create long-ten11 treatment plans. Temporary MHS and MHAs do not perform these activities.

51. Regular MHS and MHA employees have fixed five eight-hour or four ten-hour day-per-week schedules, staffing 24 hour coverage at the PCC in three shifts and day shifts in the Respite program. Regular employees may not change their schedule without approval of a supervisor, and are entitled to two-weeks notice of a County imposed schedule change. The schedules are created on a monthly basis, with gaps, absences, or vacancies staffed by temporary employees.

52. Temporary MHS employees are on call from 5:00 p.m. to 8:00 p.m, with a guarantee of a minimum of four hours per shift. Temporary MHA employees are on call in 12-hour shifts, with a guarantee of a minimum of two hours per shift. Te1nporary staff also fill in when a regular employee is absent or on leave, or when a position is vacant. Temporary staff are permitted to exchange their scheduled work times with each other.

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Tempora1y Mental Health Associates and Specialists; Behavioral Health Aides

53. The Health Department employs the following temporary employees:

• Marsha Atchley is an MHA. She was a regular full-time employee from 1990 to 2006, when she retired. Atchley has worked as a temporary employee since August 2006. She worked 806.5 hours in 2007, 714.4 hours in 2008, and 776.8 hours in2009. She worked 187 hours from May through July 2009, averaging 14.38 hours per Wf'.ek; 191.3 hours from August through October 2009, averaging 14. 7 hours per week; 306.3 hours from November 2009 through January 2010, averaging 23.6 hours per week; and 143.8 hours from February through April 2010, averaging 11.1 hours per week. Limited to half-time as a retiree, she works 15 to 20 hours per week. She works every Tuesday and every other Monday and occasionally other days.

• Jerrod Boles is an MHA hired in 2009. He worked 715.5 hours in 2009. He worked 249.2 hours in May through July 2009, averaging 19.2 hours per week; 267.6 hours from August through October 2009, averaging 20.6 hours per week; 146.2 hours from November 2009 through January 2010, averaging 11.2 hours per week; and 190 hours from February through April 2010, averaging 14.6 hours per week. He is scheduled to work on Tuesdays, Thursdays, and Saturdays.

• Mia Clark is an MHS 2 hired in 2009. She worked 406 hours from May through July 2009, averaging 31.2 hours per week; 163 .8 hours from August through October 2009, averaging 12.6 hours per week; 38.5 hours from November 2009 through January 2010, averaging 3 hours per week; and 66.3 hours from February through April 2010, averaging 5.1 hours per week. She works on Sunday, Tuesday, and Thursday.

• Sara Cornell is anMHS 2 hiredin2009. She worked 683.9 hours in 2009. She worked 174 hours from August through October 2009, averaging 13.4 hours per week; 92.3 hours from November 2009 through January 2010, averaging 7.1 hours per week; and 347.5 hours from February through April 2010, averaging 26.7 hours per week. Cornell usually works Tuesdays, but takes shifts on other days as well.

• Robert Danielian has worked for ten years as an MHS 2. He worked 427.3 hours in 2005, 400 hours in 2006, 466.3 hours in 2007, 366.8 hours in 2008, and 245.3 hours in 2009. He worked 3 7 .3 hours from May through July 2009, averaging 2. 9 hours per week; 7 8. 8 hours from August through October 2009, averaging 6.1 hours per week; 106.8 hours from November 2009 through January 2010, averaging 8.2 hours per week; and 84.2 hours from February through April 2010, averaging 6.5 hours per week.

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Danielian works three or four Saturday shifts a month and takes shifts on other days as well.

• Dovey Desirey was hired in 2003, 2004, and 2007 as an MHS. She generally performs screening for PCC on weekends and holidays. She has a full-time position as an MHS for another employer. She worked 799 .2 hours in 2008 and 507 .8 hours in 2009. She worked 113 hours from May through July 2009, averaging 8. 7 hours per week; 94 hours from August through October 2009, averaging 7.2 hours per week; 210.3 hours from November 2009 through January 2010, averaging 16.2 hours per week; and 140 hours from February through April 2010, averaging 10.8 hours per week. She is scheduled for 10-20 hours per week and also picks up other shifts. She generally works a ten-hour shift every Saturday and every other Sunday. In addition, she replaces regular employees on leave.

• Frederick (Chip) Dilley, III is an MHAhired in 2009, working 25.5 hours that year. He worked 236.3 hours from February through April, 2010, averaging 18.2 hours per week. He is usually scheduled Saturdays, Sundays, and Tuesdays.

• Mark Fisler is a BHA. In 2009 he worked full-time Monday through Friday until he reached 1,070.4 hours in 2009. He worked 302. 9 hours from May through July 2009, averaging 23.3 hours per week; 496.5 hours from August through October 2009, averaging 38.2 hours per week; 300.5 hours from November 2009 through January 2010, averaging 23.l hours per week; and 90 hours from February through April 2010, averaging 6.9 hours per week.

• Roland Gille is an MHA hired in 2008. He worked 285 hours from May through July 2009, averaging 21.9 hours per week; 385.3 hours from August through October 2009, averaging 29.6 hours per week; 277.3 hours from November 2009 through January 2010, averaging 21.3 hours per week; and 199 hours from February through April 2010, averaging 15.3 hours per week. Gille worked 833.5 hours in 2009. He usually works every Saturday and also picks up on-call hours, averaging at least 15 hours per week in every quarter.

• Marshall Goldsmith is an MHS 2 hired in 2009. He worked 68.3 hours from August through October 2009, averaging 5.3 hours per week; 149.5 hours from November 2009 throughJanuary2010, averaging 11.5 hours per week; and 191.5 hours from February through April 2010, averaging 14.7 hours per week. He usually works Wednesdays.

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• Heidi Graves has worked as an MHAsince at least 2005. She worked 623 .5 hours in 2005, 666.3 hours in2006, 899.5 hours in 2007, 936.3 hours in2008, and 886 hours in 2009. She worked 288 hours from May through July 2009, averaging 22.2 hours per week; 202.3 hours from August through October 2009, averaging 15.6 hours per week; 227.8 hours from November 2009 through January 2010, averaging 17.5 hours per week; and 143.5 hours from FebruarythroughApril 2010, averaging 11 hours per week. She usually works on Thursday and some Mondays.

• Lydia Gutierrez has worked as an MHS 2 since at least 2005. Gutierrez worked 334 hours in 2005, 576.2 hours in 2006, 377 hours in 2007, 600.4 hours in 2008, and 839.6 hours in 2009. She worked 224.3 hours from May through July 2009, averaging 17.3 hours perweek; 150 hours from August through October 2009, averaging 11.5 hours per week; 247 hours from November 2009 through January 2010, averaging 19 hours per week; and 223.5 hours from February through April 2010, averaging 17.2 hours per week. She usually works on Saturdays, but also works many Fridays and Sundays.

• Laura Keen is a BHA hired in 2009. She worked 186.7 hours from November 2009 through January 2010, averaging 14.4 hours per week; and 472 hours from February through April 2010, averaging 3 6.3 hours per week. She usually works on Mondays, Thursdays, and Saturdays.

• Thomas Kirkland, Jr. is an MHS 2 hired in 2008. He worked 65 9 .4 hours in 2008 and 679.8 hours in 2009. He worked 154 hours from May through July 2009, averaging 11.9 hours per week; 154.5 hours from August through October 2009, averaging 11.9 hours per week; 123.8 hours from November 2009 through January 2010, averaging9.5 hours per week; and 186.5 hours from February through April 2010, averaging 14.4 hours per week. He usually works Tuesdays and Thursdays and picks up hours other days of the week.

• Chasee Lofft is an MHS 2 hired in 2009. She worked 100.6 hours in May through July 2009, averaging 7.7 hours per week; 278.5 hours from August through October 2009, averaging 21.4 hours per week; 390 hours from November 2009 through January 2010, averaging 30 hours per week; and 226.8 hours from February through April 2010, averaging 9 hours per week. Lofft usually works Saturdays and Wednesdays and picks up hours other days of the week.

• Corina Martinez-Tolbert is an MHA hired in 2007. She worked 181.6 hours in 2007, 326. l in 2008, and 581.2 in 2009. Martinez-Tolbert worked 171.2 hours from May through July 2009, averaging 13.2 hours per week; 150 hours from August through October 2009, averaging 11.5 hours per week; 323.8 hours from November

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2009 through January 2010, averaging 24.9 hours per week; and 169 hours from February through April 2010, averaging 13 hours per week. She is scheduled to work on Saturdays and has picked up hours on Thursdays, Fridays, and Sundays as well.

• Elizabeth McClure has worked as an MHA every year since 2003. She worked 403.8 hours in 2005, 349.9 hours in 2006, 320.6 hours in 2007, 254.3 hours in 2008, and 299 .5 hours in 2009. McClure worked 109 .1 hours from May through July 2009, averaging 8.4 hours per week; 78.8 hours from August through October 2009, averaging 6.1 hours per week; 10 hours from November 2009 through January 2010, averaging .8 hours per week; and 32.5 hours from February through April 2010, averaging 2.5 hours per week. She works every other Friday.

• Allison Musillami is an MHA hired in 2009. She worked 271.7 hours in 2009. She worked 96.4 hours from May through July 2009, averaging 7.4 hours per week; 119 .3 hours from August through October 2009, averaging 9 .2 hours per week; 75 hours from November 2009 through January 2010, averaging 5.8 hours per week; and 44.5 hours from February through April 2010, averaging 3.4 hours per week. She usually works on Sundays.

• Robert Naylor is an MHA hired in 2010. He worked 19 hours from February through April 2010. He works on Fridays.

• Edith Rayhel is an MHA hired in 2009. She worked 310 hours in 2009. Rayhel worked 100.6 hours from August through October 2009, averaging 7. 7 hours per week; 384.2 hours from November 2009 through January 2010, averaging 29.6 hours per week; and 218.5 hours from February through April 2010, averaging 16.8 hours per week. She works on Fridays, Saturdays, and Sundays.

• Marlene Richardson is an MHA hired in 2005. She worked 553.8 hours in 2005, 580.5 hours in 2006, 391.5 hours in 2007, and 224 hours in 2008. She took time off for surgery in late 2006 and early 2007. She worked 10 hours from May through July 2009; 183 hours from August through October 2009, averaging 14.1 hours per week; 290.4 hours from November 2009 through January 2010, averaging 22.3 hours per week; and 113 hours from February through April 2010, averaging 8.7 hours per week. She works every Wednesday and every other Friday.

• Peter Teller is an MHS 2 who has worked for the County for over 17 years, first as a temporary employee, then as a regular employee, and now as a temporary employee. He worked 391.3 hours in 2005, 698.5 hours in 2006, 373.3 hours in 2007, 499.3 hours in 2008, and 471 hours in 2009. Teller worked 169 hours from May

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through July 2009, averaging 13 hours per week; 100 hours from August through October 2009, averaging 7. 7 hours per week; 102.8 hours from November 2009 through January 2010, averaging 7.9 hours per week; and 82.5 hours from February through April 2010, averaging 6.4 hours per week. He works 20-30 hours per month during the school year, primarily 10-hour shifts on Sundays. Teller works 15-20 hours per week in the summers. He only works regular shifts for absent staff.

• Vickie Thompson is an MHS 2 hired in 2009. She worked 25. 9 hours from August through October 2009, averaging 2 hours per week; 175.5 hours from November 2009 through January 2010, averaging 13.5 hours per week; and 239.2 hours from February through April 2010, averaging 18.4 hours per week. She often works Wednesdays and Fridays.

• Paula Wang is an MHS 2 hired in 2008. She worked close to 800 hours in 2009. She worked 262.7 hours from May through July 2009, averaging 20.2 hours per week; 109 hours from August through October 2009, averaging 8.4 hours per week; 208.1 hours from November 2009 through January 2010, averaging 16 hours per week; and 286.2 hours from February through April 2010, averaging 22 hours per week. She works a part-time schedule, primarily Sunday through Thursday.

• Debralee Young is a BHAhired in 2008. She worked 769.3 hours in 2008 and 788 hours in 2009. She worked 231.8 hours from May through July 2009, averaging 17.8 hours per week; 201.8 hours from August through October 2009, averaging 15.5 hours per week; 246 hours from November 2009 through January 2010, averaging 18. 9 hours per week; and 197 hours from February through April 2010, averaging 15.2 hours per week. She generally works Monday through Thursday, four to six hours per day.

Tempormy Health Department 'Department Specialists'

54. The Health Department has a clerical pool of regular Department Specialist 2s and two regular Department Specialist ls. Temporary Department Specialists primarily fill in when an employee is absent or on leave, or when a position is vacant. Temporary Department Specialists do the same work as regular employees, except for work involving payroll, evaluations, recruitment, hiring, handling cash, and most uses of the personal health information database. The Department recruits new temporary employees for these positions two to three times each year.

55. The Health Department employs the following temporary Department Specialists:

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• Kathryn Cardwell is a recently hired Department Specialist 2 hired in 2009. She worked 169 hours from November 2009 through January 2010, averaging 13 hours per week; and 169.3 hours from FebruarythroughApril 2010, averaging 13 hours per week.

• Al1nemarie Chapman is a Department Specialist 3 hired in 2008. In 2009 she worked 1,912 hours. She worked 482 hours from May through July 2009, averaging 37.1 hours per week; 485.5 hours from August through October 2009, averaging 37.4 hours per week; 464 hours from November 2009 through January 2010, averaging 35.7 hours per week; and 496.5 hours from February through April 2010, averaging 38.2 hours per week. She usually worked 8:00 a.m. to 5:00 p.m., Monday through Friday.

• Jade Collatt is a Department Specialist 2 hired in 2008; she worked 880.8 hours that year. She worked 225 hours from May through July 2009, averaging 17.3 hours per week; 209 .5 hours from August through October 2009, averaging 16.1 hours per week; 208 .5 hours from November 2009 through January 2010, averaging 16 hours per week; and 322.2 hours from February through April 2010, averaging 24.8 hours per week. She works 8:00 a.m. to 5:00 p.m. During April 2010 she worked full-time.

• Mary Crocker is a Department Specialist 2 hired in 2007. She worked 814.3 hours in 2008 and 676 hours in 2009. She worked 165 hours from May through July 2009, averaging 12.7 hours per week; 130 hours from August through October 2009, averaging 10 hours per week; 173 hours from November 2009 through January 2010, averaging 13.3 hours per week; and 180.5 hours from February through April 2010, averaging 13.9hoursperweek. She works Tuesdays, Wednesdays, and Thursdays; sometimes she picks up additional hours.

• Mecalea Herrera worked as a Department Specialist 2 in 2005, 2009, and 2010. In 2005 she worked 385.8 hours; in 2009, she worked 801.8 hours. She worked 345.3 hours from May through July 2009, averaging 26.6 hours per week; 240.7 hours from August through October 2009, averaging 18.5 hours per week; 298.8 hours from November 2009 through January 2010, averaging 23 hours per week; and 247.5 hours from February through April 2010, averaging 19 hours per week. She works on Mondays, Tuesdays, Thursdays, and Fridays.

• Vanessa Palacios is a Department Specialist 2 hired in 2009. She worked 387 hours from November 2009 through January 2010, averaging 29.8 hours per week on a regular Monday through Friday schedule; and 54.5 hours from February through April 2010, averaging 4.2 hours per week. At the time of hearing, she was not working for the County.

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• Katie Reynolds is a Department Specialist 2 hired in 2009. She worked 128.3 hours from May through July 2009, averaging 9.9 hours per week; 210.3 hours from August through October 2009, averaging 16.2 hours per week; 283 .8 hours from November 2009 through January 2010, averaging 21.8 hours per week; and 206.8 hours from February through April 2010, averaging 15. 9 hours per week. She works two weeks per month on all days of the week.

• Ruth Sanchez is a Department Specialist 2 hired in 2009. She worked 136.5 hours from August through October 2009, averaging 10.5 hours per week; 329.8 hours from November 2009 through January 2010, averaging 25. 4 hours per week; and 157.8 hours from Februa1y through April 2010, averaging 12.1 hours per week.

• Lisa Schneider is a Departn1ent Specialist 2 hired in 2009. She worked 873.26 hours that year. She worked 450.9 hours from May through July 2009, averaging 34.7 hours per week; 350 hours from August through October 2009, averaging 26.9 hours per week; 72.3 hours from November 2009 through January 2010, averaging 5.6 hours per week; and did not work at all from February through April 2010. She worked a Monday through Friday schedule.

• Leslie Shorb is a Department Specialist 2 hired in 2010. She worked 94 hours in February through April 2010, averaging 7.2 hours per week. She works on Tuesdays, Thursdays, and Fridays.

WIC (Women, Infant and Children) Program Tempmwy Nutrition Aides

56. WIC is a federally-funded program administered through the County providing nutrition classes and advice, food vouchers, breast pump services, a high school clinic, and other services to pregnant women and new mothers. Its regular staff employees are Registered Dieticians, Nutrition Educators, and Nutrition Aides. WIC also employs six temporary Nutrition Aides. The temporary Nutrition Aides fill in when an employee is absent or on leave, or when a position is vacant; these temporary employees also assist the regular Nutrition Aides when their workload becomes too heavy. The temporary Nutrition Aides have the same minimum qualifications as regular Nutrition Aides. Temporary Nutrition Aides spend most of their time determining client eligibility and teaching classes. Regular Nutrition Aides also teach classes and determine client eligibility; in addition, the regular Nutrition Aides have access to the database of personal medical information; supervise the vollmteers in the peer breast-feeding support program; staff the high school clinic and breast pump station; handle cash; provide bilingual services; and develop lesson plans.

57. The WIC staff schedule is created monthly. Supervisors first set the regular staff schedule and then contact temporary employees to fill in gaps or provide extra help.

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At the time of hearing, the Health Department was adding a regular, part-time position to fill in on days when the need has historically been greatest.

58. The WIC program employs the following temporary Nutrition Aides:

• Karen Culbertson was hired in the third quarter of 2009. She worked 94.4 hours from November 2009 through January 2010, averaging 7.3 hours per week; and 389.4 hours from February through April 2010, averaging 30 hours per week. In March and April 2010 she worked four to five days a week, Monday through Friday.

• Patricia Dowell was hired in 2005. She worked 935.5 hours in2006; 967.8 hours in 2007; 805.3 hours in 2008; and 854.8 hours in 2009. She worked 168.5 hours from May through July 2009, averaging 13 hours per week; 306.5 hours from August through October 2009, averaging 23.6 hours per week; 223 hours from November 2009 through January 2010, averaging 17.2 hours per week; and 223.5 hours from February through April 2010, averaging 17.2 hours per week. She generally works seven and one-half hour days and usually works three days per week each month. Dowell works less in the summers when her children are not in school.

• Ellen Lanigan was hired in 2007. She worked 703.4 hours in 2007 and 690. l hours in 2008. She worked 42 hours from January through May 2009, averaging less than 2 hours per week; 34 hours from May through July 2009, averaging 2.6 hours per week; 26 hours from November 2009 through January 2010, averaging 2 hours per week; and 118.9 hours from February through April 2010, averaging 9 hours per week. At the time of hearing, she worked two days per week.

• Therese Montgomery was hired in 2006. She worked 701. 7 hours in 2007; 725.6 hours in 2008; and 646.4 hours in 2009. She worked 132.9 hours from May through July 2009, averaging 10.2 hours per week; 248.7 hours from August through October 2009, averaging 19 hours per week; 40.5 hours from November 2009 through January 2010, averaging 3.1 hours per week; and 59.8 hours from February through April 2010, averaging 4.6 hours per week. She usually worked one shift of 7.5 hours per week and picked up additional shifts. She works Fridays and does some trainings on Thursdays.

• Bernadine Newland was hired in 2006. She worked 694.6 hours in 2006, 821.4 hours in 2007, 892.3 hours in 2008 and 930.8 hours in 2009. She worked 181.3 hours from May through July 2009, averaging 13.9 hours per week; 217.5 hours from August through October 2009, averaging 16.7 hours per week; 389.3 hours from November 2009 through January 2010, averaging 29.9 hours per week; and 226 hours

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from February through April 2010, averaging 17.4 hours per week. She works eight hours per day, 8:30 a.m. to 5:00 p.m., on Monday through Thursday or Tuesday through Friday until she approaches her limit of 1040 hours. On Tuesdays she works 10:30 a.m. to 7 :00 p.m. Two months in advance, she turns in a schedule of the days she is available to work; she is then given a work schedule by the 20th of the month preceding the work month. She has worked regularly since she began working for the County, except on two occasions when she reached the annual limit of 1,040 hours. Newland chose not to apply for the new regular part-time position because she wanted more hours.

• Grace Williamson was hired in 2005. She worked 879.5 hours in 2006, 598.3 hours in 2007, 379.8 hours in 2008, and 472.8 hours in 2009. She worked 113 hours from May through July 2009, averaging 8.7 hours per week; 129.5 hours from August through October 2009, averaging 10 hours per week; 187.3 hours from November 2009 through J anua1y 2010, averaging 14.4 hours per week; and 123 .5 hours from February through April 2010, averaging 9.5 hours per week. She does not have a regular schedule, but works on average 10 hours per week, working two or three days a week during the school year.

Other Health Department Temporaiy Classifications

59. The Health Department employs the following other temporary workers:

• Emilia Jaeger is a Health Educator 2 hired in 2009. She worked 316.8 hours from November 2009 through January 2010, averaging 24.4 hours per week; and 456.3 hours from February through April 2010, averaging 35.l hours per week. She works Monday through Friday.

• Eugenia McElroy is a Senior Medical Technologist hired in 2008. She worked 96.8 hours in2008 and 71.5 hoursin2009. She worked l 7.9hours fromAugust through October 2009, averaging 1.4 hours per week; 68.2 hours from November 2009 through January 2010, averaging 5.2 hours per week; and 100.6 hours from February through April 2010, averaging 7.7 hours per week. She is filling a vacant position which the Health Department hopes to eliminate if its plans meet state approval. She works every Friday and covers for employees on sick leave or vacation on other days.

• Ismael Perez-Guzman is a Public Health Aide in Communicable Disease Services hired in 2009. He worked 48.8 hours from November 2009 through January 2010, averaging 3.8 hours per week; and 142 hours from February through April 2010, averaging 10.9 hours per week. He usually works Thursdays and Fridays.

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• Jamie Petts is a Health Educator 1 hired in 2009. He worked 1,229.26 hours from November 2009 through January 2010, averaging 17.6 hours per week; and 515.8 hours from February through April 2010, averaging 39.7 hours per week. He works Monday through Friday, 37 to 40 hours per week.

• Janie Romero is a Public Health Aide hired in 2009; she worked 274.4 hours that year. She worked 71.9 hours from May through July 2009, averaging 5.5 hours per week; 187.5 hours from August through October 2009, averaging 14.4 hours per week; 63 hours from November 2009 through January 2010, averaging 4. 9 hours per week; and 300.8 hours from February through April 2010, averaging 23.l hours per week. She generally works Monday, noon to 4 p.m., and all day Tuesday, Wednesday, and Friday. The Department plans to convert this position to a regular part-time position.

Sheriff's Office

60. The County Sheriff's Office employs the following temporary workers:

• Jennifer Bangs is a Department Specialist 2 hired in 2007. Bangs worked 856 hours in 2007, 1,658 hours in 2008, and 1,655.5 hours in 2009. She worked 435.5 hours from May through July 2009, averaging 33.l hours per week; 416 hours from August through October 2009, averaging 32 hours per week; 363 hours in November 2009 through January 2010, averaging 27.9 hours per week; and 436 hours from February through April 2010, averaging 33.5 hours per week. She worked most Tuesdays, Wednesdays, and Thursdays during that year and many Mondays and Fridays.

• Raymond Mandyck is a Case Aide hired in 2008. He worked 945 hours in 2008 and 1,696.5 hours in 2009. He worked 387 hours from May through July 2009, averaging 29.8 hours per week; 403.5 hours from August through October 2009, averaging 31 hours per week; 475 hours from November 2009 through January 2010, averaging 36.5 hours per week; and 482 hours from February through April 2010, averaging 3 7. I hours per week. At the time of hearing, he worked eight hours a day Monday through Thursday, and a half day on Friday.

• Dallas Northcott is a Case Aide hired in 2009; he worked 240 hours in that year. He worked 98 hours from August through October 2009, averaging 7 .5 hours per week; 196 hours from November 2009 through January 2010, averaging 15.l hours per week; and 186 hours from February through April 2010, averaging 14.3 hours per week. He usually works Monday through Thursday.

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• Rhonda Stitz is a Department Specialist 2 hired in 2005. She worked 439 .5 hours in 2006, 690 hours in 2007, 759.5 hours in 2008, and 376 hours in 2009. She worked 95.5 hours from May through July 2009, averaging 7.4 hours per week; 68.5 hours from August through October 2009, averaging 5.3 hours per week; 95 hours from November 2009 through January 2010, averaging 7.3 hours per week; and 89.5 hours from February through April 2010, averaging 6. 9 hours per week. She currently works fewer hours than in the past; she is primarily employed to take notes at a weekly managers' meeting.

• Tawnya Vincent is a former regular employee hired as a temporary Department Specialist 2 in 2007. She worked 866.3 hours in 2008 and 826.3 hours in 2009. She worked 226.3 hours from May through July 2009, averaging 17.4 hours per week; 178 hours from August through October 2009, averaging 13.7 hours per week; 211.5 hours from November 2009 through January 2010, averaging 16.3 hours per week; and 199.5 hours from February through April 2010, averaging 15.4 hours per week. She works five to seven hours per day on Tuesdays, Wednesdays, and Thursdays.

Other Departments

61. Other County departments recently employed the following temporary workers:

• Wanda Case was hired in 2009 as a Legal Secretary 1; the record does not state the Department in which she is employed. She worked 224.8 hours from November 2009 through January 2010, averaging 17.3 hours per week; and 468.5 hours from February through April 2010, averaging 36 hours per week. Towards the end of 2009, Case worked a regular full-time schedule every Monday through Friday.

• Wendy Cohara is a Department Specialist 2 in the Health Department. She worked 135.5 hours from February through April 2010, averaging 31.5 hours per week. She worked Monday through Friday in April 2010.

• Veronica Digman-McNassar is a Department Specialist 3 in the Children and Families Department. She worked 16.3 hours from August through October 2009; 125.3 hours from November 2009 through January 2010, averaging 9.6 hours per week; and 148.8 hours from February through April 2010, averaging 11.4 hours per week. She generally works three Tuesdays a month.

• Kathleen Larson is a Programmer Analyst 3 in the Information Technology Department. She worked 1,238.5 hours in 2009, working every Monday and Tuesday,

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7:00 a.m. to 4:00 p.m. She has also worked more limited hours on other days of the week. She worked 128 hours from August through October 2009, averaging 9.9 hours per week; 229 hours from November 2009 through January 2010, averaging 17.6 hours per week; and 192 hours from February through April 2010, averaging 14.8 hours per week.

• Elizabeth Little is a Department Specialist in the Juvenile Department. She worked 108 hours from February through April 2010, averaging 8.3 hours per week. At the time of hearing, she worked an eight-hour day, five days a week.

• Katie Reynolds is a Department Specialist 2 in the Juvenile Department. She worked 668.3 hours in 2009. She worked 128.3 hours from May through July 2009, averaging 9. 9 hours per week; 210.3 hours from August through October 2009, averaging 16.2 hours per week; 283.8 hours from November 2009 through January 2010, averaging 21.8 hours per week; and 206.8 hours from February through April 2010, averaging 15. 9 hours per week. She works two weeks per month on various days of the week.

• Amanda Thompson has been employed as a Department Specialist 2 in the Business Services Department since 1999, with a break in employment in 2009. She worked 181 hours in 2005, 528.3 hours in 2006, 601.5 hours in 2007, 423.9 hours in 2008, and did not work at all in 2009. She worked 83.5 hours in January 2010, averaging 19.4 hours per week; and 269.3 hours from February through April 2010, averaging 20. 7 hours per week. Since her return to work in 2010, she has worked eight hours on Tuesdays and Thursdays and four hours on Wednesdays.

CONCLUSIONS OF LAW


2. The Petition is timely.

The Union filed its unit clarification petition on Monday, May 3, 2010. OAR 115-025-0015(4) provides thata petition such as this one is subject to the contract bar as specified in OAR 115-025-0005( 4). That rule states:

"(4) Open Period for Filing. A petition for an election where a contract exists must be filed not more than 90 days and not less than 60 days before the end of the contract period. If a contract is for more than three

- 26 -

years, a petition for an election may be filed not more than 90 and not less than 60 days before the end of the expiration of the first three years of the contract or anytime after three years from the effective date of the contract. However, if a new contract is negotiated during the fourth year of the contract and prior to the filing of a petition for election the new contract shall serve as a contract bar."

The parties' 2008-2010 agreement expired on June 30, 2010. The County argues that the open period for the parties' agreement therefore extended from Friday, April 2, 2010 (90 days before contract expiration), to Sunday, May 2, 2010 (60 days before expiration). The Union filed its unit clarification petition on Monday, May 3, 2010.

OAR 115-010-0012 provides,

"Unless otherwise specifically provided in these rules, time will be computed by excluding the first day and including the last day unless the last day falls upon a legal holiday or Saturday, in which case the last day also is excluded."

The County argues:

"[T]he computation-of-time rule is written as a rule of exclusion. It excludes one from counting the last day of a period when a party must act within a specific length of time from a given event or date, and the last day falls on a Saturday or holiday. When the last day (or due date) falls on weekend, this rule 'excludes' that last day from the count. In such circumstances the effect of the computation-of-time rule is to give the filing party until the next work day to file.

"The open period does not work that way. The open period does not provide for filing within 30 days from a set date. Rather, the open period offers a window." (County's Memorandum in Aid of Oral Argument, p. 22) (emphasis in original).

The County contends that under OAR 115-025-0005(4), we must count back 60 days from the contract expiration date to Sunday, May 2, and then exclude both this "last day" and Saturday, May l from the open period. Therefore, the County claims, the end of the open period and the last day on which the Union could file its petition was Friday, April 30. We disagree.

- 27 -

We see no reason to treat the chronological end (whether one counts forward or backward) of the open period under OAR 115-025-0005(4) any differently than any other time period that ends on a day upon which the offices of this Board are closed. Using the language of OAR 115-010-0012, the "last day" of the open period was Saturday, May 1, and therefore May 1 and Sunday, May 2, are excluded from calculation of tl1e open period, extending it to May 3, 2010. We conclude that the Petition was timely filed. 10

3. It is not appropriate to add t11e petitioned-for employees to the Union bargaining unit.

This is the second time this Board has been asked to determine whether County temporary employees are appropriately clarified into the Union unit. In Service Emplqyees Intemational Union Local 503 JI. Marion County, Case Nos. UC-32/33-04, 21 PECBR327 (2006), petition for recons, 21 PECBR 482 (2006) A WOP, 215 Or App 501, 170 P3d 8 (2007) (Marion County I), this Board held that it was not appropriate to add temporary employees to the Union bargaining unit. The principles of issue and claim preclusion bar us from reconsidering decisions where "we have made findings in prior cases between the same parties concerning the same factual questions and conclusions of law." Federation of Oregon Parole and Probation Officers JI. Polk County Community Co1nctions, Case No. RC-71-88, 11 PECBR 667, 680 (1989). See also Federation ef Oregon Parole and Probation Officers JI. Lane County, Case No. RC-10-05, 21PECBR235, 240-241 (2006). Although this case involves the same parties as the previous petition, it does not present the same factual question and legal issue. In Marion County I, t11e Union sought to include all County temporary employees in its strike-permitted bargaining unit; it did not exclude casual employees from t11e petitioned-for group. Here, the Union excludes casual employees from the group of temporary employees it seeks to add to its bargaining unit.

We acknowledged tl1e difference between a group of all County temporary employees and a group of non-casual Cow1ty temporary employees when the Union sought reconsideration of its petitions inMaiion County I. The Union's original petitions sought to add all temporary employees to its strike-prohibited and strike-permitted bargaining units. After we dismissed those petitions, the Union petitioned for reconsideration and also moved to amend its original petitions to exclude casual employees "with irregular work schedules" from the group of temporary employees it sought to represent. The Union requested a rehearing to determine which employees

10 The Union also argues that Board administrative staff advised it that the Petition would be timely if filed on May 3. This is not a defense; parties are responsible for performing their own legal research in Board proceedings.

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were casual. Marion County I, 21 PECBR at 482. We refused to allow the Union to amend its petitions. We reasoned that the showing of interest submitted in support of the original petitions could not be used to support the amended petitions because the employee groups were too different. Id. at 485. Accordingly, this petition-which seeks to add non-casual County temporary employees to the Union's collective bargaining unit of strike-permitted employees-involves an employee group different from the group the Union originally sought to represent in Marion County I. As a result, the petition presents different factual and legal issues and we are not precluded from considering it.

The group which the Union now wants to add to its collector bargaining unit consists of approximately 120 employees whom the County has classified as temporary. The petitioned-for employees work in a number of different positions in several County departments. The County opposes the petition, asserting that all the individuals the Union seeks to represent are casual employees who cannot be appropriately included in the Union bargaining unit.

Under OAR 115-25-0050(2), we consider the following factors to determine whether to add unrepresented employees to an existing bargaining unit: "community of interest * * *,wages, hours and other working conditions of the employees involved, the history of collective bargaining and the desires of the employees." See also ORS 243.682(1). In addition, we will only add unrepresented employees to an existing bargaining unit if the petitioned-for group constitutes "a logical[y defined group or class of employes (as opposed to interested individuals or fragments of a group * * *)." Oregon Public Employees Union v. Executive Department, State of Oregon, Case No. UC-59-87, 10 PECBR 456, 471 (1988) (emphasis added). We begin our consideration of the Union's petition by determining whether the employees the Union seeks to add to its bargaining unit share a community of interest and other common working conditions with Union bargaining unit employees.

Community of interest factors include "similarity of duties, skills, benefits, interchange or transfer of employees, promotional ladders, [and] common supervisor * * *." OAR 115-025-0050(2). Where a union seeks to add casual, temporary, or substitute employees to a bargaining unit of regular employees, we expand our analysis of these factors to look at the nature of the ongoing employment relationship the petitioned-forworkers have with the employer. We refuse to add workers who have only a "tenuous employment relationship" with the employer to a bargaining unit of regular employees. AFSCME Local 189 v. City of Portland, BOEC, Case No. UC-12-91, 13 PECBR302, 308 (1991). Our refusal is based on the differing interests of casual and regular employees; workers whose relationship with the employer is tenuous have bargaining priorities that differ significantly from those of regular employees. Id. To

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decide if an employment relationship is tenuous, we look not to the number of hours worked but at the nature of the relationship; an individual is a casual employee if the worker's employment is neither regular nor recurrent. Marion County I, 21 PECBR at 348.

Difficulties have arisen, however, when we have attempted to apply these standards to determine what type of employment is regular and recurring. Our efforts to develop definitions of casual, substitute, and temporary employees based on the facts presented by specific cases have not produced consistent principles to reliably guide employers or unions. For example, we excluded all substitute teachers-a group defined as teachers employed on a day-to-day basis who worked less than 60 days per assignment-from a bargaining unit of regular teachers in Mid- Vallry Bargaining Council v. GreaterAlbarry Public School District 8-J, Case No. C-17-81, 6 PECBR 4766 (1981). We accepted the parties' definition of a substitute, and did not consider the hours worked by or the employment history of the individuals at issue in making our decision.

Our holding in Greater Albarry School District is difficult to reconcile with the one we made in Oregon School Emplf!Yees Association v. Wann1ton-Hammond School District 30, Case No. RC-47-86, 9 PECBR 9034, 9037 (1986), where we decided that four substitute employees-a substitute bus driver, two substitute ldtchen helpers, and a substitute teacher's aide-belonged in the regular classified employee bargaining unit. We examined the work hours and employment history of the individuals at issue, noting that their work hours fluctuated: over a six-month period, the employees worked anywhere from seven to 71 hours per month. Despite the employees' status as substitutes and the short (six months) work history we considered, we concluded that they had "consistent recurring employment with the District over a substantial period of time. " Id.

Later cases have not produced a logical definition of the type of employment considered "consistently recurring." In Teamsters Local Union #223 v. North Lincoln Hospital, Case No. RC-11-96, 16 PECBR 672, 674, (1996), we refused to include "per diem" employees in a bargaining unit of hospital workers. The 31 "per diem" employees worked varied hours, ranging from an average of 10 hours or less per week to an average of over 30 hours per week; all but six of the "per diem" employees had been employed by the hospital for at least two years.

Contrast these conclusions in North Lincoln Hospital with those we made in Lane Community College Employees Federation, Local 2417, AFT, AFL-CIO v. Lane Community College, Case No. UC-19-97, 17 PECBR423 (1997). In Lane Community College, we added classified employees worldng less than half-time to an existing bargaining unit of

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employees working more than half-time. The employment of many of these workers was less recurring than that of the "per diem" workers in North Lincoln Hospital: over a three-year period, approximately one-half of the Lane Community College employees at issue who worked one year for the college did not return to work the following year. Id. at 426.

The inconsistencies in our cases led to results we now view as anomalous in Marion County I. There, a substantial number of the employees we decided were casual worked 1,040 hours or more during a 12-month period-significantly more hours over a longer period of time than the employees we decided were regular in Wa1nntonHammond. Many of the casual employees in Marion County I had worked for the County for a number of years: during the six years preceding the year in which the petition was filed, 39 percent had worked in temporary County positions for two or three years, and 17 percent had worked in temporary County positions for four or more years. It is difficult to find a logical basis for distinguishing between the employment history of these casual County workers and that of the employees we held were regular in Lane Community College.

Under 0 RS 243. 682 ( 1) (a), we have responsibility for designating an appropriate bargaining unit. We believe this case presents an opportunity to re-examine the conclusions we reached in Marion County I and develop more consistent and reliable standards for determining who must be excluded from a bargaining unit as a casual employee. We have come to agree with our dissenting colleague in Marion County I that the approach we have used in prior cases-that of comparing the facts of one case to another to determine the nature of the individuals' employment relationship-is "especially ill-suited to fact-intensive and workplace-specific cases" like the one presented here. Ma1ion County I at 351. As explained below, we now adopt the reasoning in the dissent and apply it to the facts of this case.

When we use a fact-matching analysis, we must choose between two options to determine the status of a group of employees: we can generalize about the work performed by the employees, or we can analyze the worldng conditions and employment patterns of every single employee in the petitioned-for group. The first option leads us to make conclusions about "most" or a "majority" of the employees at issue. Any such generalizations may not accurately describe the actual employment relationships of specific individuals in the petitioned-for group. As a result, some employees may be incorrectly labeled casual and barred from representation under the Public Employee Collective Bargaining Act (PECBA). The second option requires us to individually (and exhaustively) consider the particular employment situation of each worker in the petitioned-for group. Such an approach is time-conswning and impractical where, as

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here, the Union seeks to add 120 employees to its bargaining unit. We decline to choose either option. Instead, we find it appropriate to reject the fact-matching analysis we applied in Marion County I and prior cases and adopt the standards used by the National Labor Relations Board (NLRB) to determine whether an individual is a casual employee.

Such an approach is consistent with one we advocated in Salem Federation of Classified Emplcryees v. Salem School Dist1ict 24/, Case No. C-169-83, 7 PECBR 6187, 6194-6195 n 3 (1983). In that case, which was decided three years after we adopted our 1980 unit clarification rules, we noted that although NLRB precedent was not controlling, we anticipated "referring to the experience of the NLRB" in determining casual employee status. Deference to the National Labor Relations Act (NLRA) as interpreted by the NLRB is appropriate; when the PECBA was adopted in 1973, it was modeled, to a great extent, on the NLRA. As a result, we often apply pre-1973 NLRA precedent to interpret the PECBA. Elvin v. OPEU, 313 Or 165, 175 n 7, 832 P2d 36 (1992).

We begin by reviewing the NLRB definitions of casual and temporary employees. Although we have never distinguished between these two types of employees, the NLRB has. The NLRB defines casual employees as those who, because their employment is not sufficiently regular, lack a community of interest with other bargaining unit employees. The NLRB has a long-standing and widely-used formula to determine who is eligible to vote as a regular employee on inclusion in a bargaining unit and who is ineligible as a casual employee: an individual is considered a regular, part-time (and not a casual) employee if the employee averaged four or more weekly hours of work in the last quarter prior to the election eligibility date. May Dep't Stores Co., 175 NLRB 514 (1969), supplemental order 181 NLRB 710, 711-712 ( 1970); Davison-Paxon Co. Div., 185 NLRB 21, 23-24 (1970). 11 The NLRB has continued to use this formula. Trump Taj Mahal Associates, 306 NLRB 294, 295 (1992); New York Display and Die Cutting C01p., 341 NLRB 930 (2004);A.L. Investors Orlando, LLC 344 NLRB 582, 582-583 (2005).

In regard to temporary employees, the NLRB has applied two standards to decide if an individual is a temporary employee and ineligible to vote as a member of a regular employee bargaining unit: a reasonable expectation of employment test and a date certain test. John E. Higgins, Jr., The Developing Labor Law 60l(Fifth Ed. 2006). Under the reasonable expectation test, an individual is considered a temporary employee if, on the election and eligibility dates, the individual is working but has no reasonable

11In May Dep't Stores Co., 181 NLRB at 712-713, the NLRB used the following formula to assess the voting eligibility of an employee who began work for the employer during the quarter immediately preceding the election eligibility date: an employee was eligible to vote if the employee began work no later than the seventh week of the quarter and worked a weekly average of four hours or more in two-thirds of the weeks between the date the employee began work and the date on which the quarter ended.

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expectation of permanent employment. Georgia-Pacific C01p., 201 NLRB 831 (1973); NLRB v. S.R.D.C., 45 F3d 328, 331 (9'h Cir 1995). Under the date certain test, an employee is eligible to vote as a regular employee if, on the eligibility and election dates, the employee is working but has no definite date on which this employment will end. H. Sargent and Company, 99 NLRB 1318, 1320 (1952); Personal Products C01p., 114 NLRB 959, 960 (1955); LZ1!JldA. F1y Rorjing, 121 NLRB 1433, 1437 (1958); M.f. Pirolli &Sons, Inc., 194 NLRB 241, 250 (1972). 12

Here, the County classifies all the employees at issue as "temporary." We are not bound by this term, however. The record contains no evidence that any of the individuals at issue have definite dates on which their County employment will end; to the contrary, all individuals whose work histories are cited in the Findings of Fact have worked intermittent periods of varying length for the County, sometimes for several years. Nor do the County "temporary" employees lack an expectation of permanent employment: the County has reclassified a number of temporary employees as regular employees, based on the number of hours they have worked. Accordingly, the issue we must decide is whether the employment status of the individuals in the petitioned-for group is casual. We adopt the NLRB standard to make this determination: casual workers who are ineligible to vote on inclusion in the Union bargaining unit are those individuals who, on the date of eligibility for the election, have averaged less than four weekly hours of work in the quarter ( 13 weeks) preceding the election eligibility date.

Use of this formula is consistent with the approach taken by a number of other states that use some type of numerical formula to determine an employee's status. These states include: Washington (under Washington Administrative Code 391-35-350, adopted by the Washington Public Employment Relations Commission, employees are presumed to be regular part-time employees and eligible for inclusion in a bargaining unit if, during the previous 12 months, they have worked at least one-sixth of the time normally worked by full-time employees and are available for work); New Jersey (Orange

12The First and Ninth Circuits have adopted the date certain test as the better and more objective standard for determining an employee's status as a bargaining unit member. NLRB v. New England Lithographic Co., 589 F2d 29, 33 (l" Cir 1978); NLRB v. S.R.D.C. Inc., 45 F3d 328, 332 (9'h Cir 1995). Under the date certain test as used by these courts,

"[A Jn employee may be fully aware that his or her employment will be short-lived, but, as long as no definite termination date is known and the employee was employed on the eligibility and election dates, he or she will be eligible to vote." S.R.D.C. Inc., 45 F3d at 332.

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County Board of Education and Orange Custodial and Maintenance Association, 15 NPER- NJ 23165 ( 1992), substitute custodians who worked at least one-sixth of the work-year worked by regular custodians and who continue to be available to accept work are properly accreted to a bargaining unit of regular employees); Pennsylvania (Westmoreland County, 18 NPER- PA 27038 (1996), county correctional officers, who worked 13 or more of 21 regular pay periods are properly included in regular employee bargaining units); Rhode Island (City of Providence School Department v. Rhode Island State Labor Relations Board, 177 LRRM 2953 (2005), substitute clerks who work more than 16 weeks a year are not casual employees and not excluded from collective bargaining); Michigan (Taylor Federation of Teachers v. Taylor Ed. Of Education, 129 LRRM 2884 (1988), substitute teachers who worked at least one day in 25 percent or more of the pay periods in the two full years preceding the election were appropriately permitted to vote on inclusion in the regular teacher bargaining unit), and Minnesota (Section l 79A.03, subdivision 14( e) of the Minnesota Public Employment Labor Relations Act defines a casual employee as one who works the lesser of 14 hours per week or 35 percent of the normal work week in the relevant unit). 13

Our inquiry does not end with the adoption and application of the NLRB test to determine who is a casual County employee, however. As discussed above, the nature of an individual's employment relationship is only one of the community of interest factors we consider; in addition, we look at similarity of duties, sldlls, benefits, interchange or transfer of employees, promotional ladders, and common supervision. OAR 115-25-0050(2). We also examine "wages, hours and other worldng conditions of

13We also anticipate following NLRB precedent by applying the bright-line test for casual employment in a flexible manner that allows for necessaiy exceptions. As the NLRB has made clear, the formula "should be followed absent a showing of special circumstances.'' Columbus Symph01ry Orchestra, 350 NLRB 523, 524 (2007). One such special circumstance that has required modification of the formula is the entertainment indust1y, where employment patterns are often highly irregular. Id.

In Oregon, one situation that may require an exception to use of the NLRB bright-line standard is that of substitute teachers. Because ORS 342.815(8) defines a substitute teacher, it may be impractical to apply the NLRB definition of a casual employee to this type of employee. In addition, it has been our long-standing practice to exclude substitute teachers from bargaining units of regular licensed teachers. Mid- Valley Bargaining Council v. Greater Albairy Public School Dist1ict 8-f, Case No. C-17-81, 6 PECBR 4766 (1981 ). Instead, we have required that substitutes form their own bargaining units. Beave1ton Education Association /OEA-OACE/NEA v. Beave1ton SchoolDist1ict48J, RC-72-93, 15 PECBR210 (1994). Whether it is necessary to reconsider this practice, or whether it would be unnecessarily disruptive to do so, is an issue that must be resolved in a future case.

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the employees involved, the history of collective bargaining, and the desires of employees." ORS 243.682(1)(a).

Here, the duties of the petitioned-for employees are substantially the same as those performed by bargaining unit inembers. (Finding of Fact 23 ). In a few instances, the work performed by the temporary employees differs fron1 the work of regular employees. Regular MHS and MHA employees perform case management, counsel clients, and create long-term treatment plans; temporary MHS and MHA workers do not. Temporary Maintenance Workers do not operate heavy equipment; regular Maintenance Workers do. We do not consider these few differences to be significant, however. Because the temporary employees work in the same job classifications as regular employees, their sldlls are similar to those of the regular employees. The petitioned-for employees share common supervision with bargaining unit employees. There is some interchange between the temporary and regular work force: out of 760 regular employees, approximately 30 percent (227) are former temporary workers. (Finding of Fact 31). Although temporary employees are placed on the same salary schedule as regular employees, their salaries are lower and benefits fewer. These differences can probably be attributed to the collective bargaining rights enjoyed by regular employees, however. The showing of interest submitted with the petition, as well as the fact that this is the second time County temporary employees have sought representation by the Union, indicate that the petitioned-for employees want to be represented by the Union.

In sum, we conclude it is appropriate to apply the NLRB definitions to determine which employees in the petitioned for group are eligible to vote for inclusion in the Union bargaining unit because they are regular employees. It is appropriate to include these regular employees in the bargaining unit, based on the community of interest and other worldng conditions these employees share with Union bargaining unit members.

We turn now to the final factor to consider in deciding whether to add the petitioned-for employees to the Union bargaining unit: do the individuals the Union seek to add to its bargaining unit constitute a "logically defined group of employees"?

The Union has sought to represent only some of the employees the County classifies as "temporary." As of June 10, 2010, approximately one month before the date of the hearing, "temporary" e1nployees filled positions in 35 Union bargaining unit job classifications. The Union's petition seeks to represent "temporary" employees filling positions in 25 of these job classifications. (Finding of Fact 6 n 7). The Union has offered no reason for excluding many of the County "temporary" employees from its petition.

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The facts here are very similar to those in Portland Community College Faculty Association v. Portland Community College, Case No. UC-13-00, 19 PECBR 129, 143 (2001). In that case, the union sought to add to its bargaining unit casual professional employees who were authorized to work a certain number of hours during the fiscal year. We dismissed the petition, holding that the group the union sought to add under subsection (4) was not logically defined because the defining factor-the number of hours an employee was authorized to work-was an "arbitrary figure. Here, as inPCC, the Union's selection of the "temporary" employees it wants to represent is arbitrary. The Union has provided no evidence or argument to explain why County "temporary" employees in some departments and job classifications should be included in the bargaining unit and why "temporary" employees in other departments and job classifications should be excluded. Accordingly, the petition does not propose the addition of a logically defined group of employees and we will dismiss it.

ORDER

The Petition is dismissed.

SIGNED AND ISSUED this 9 oeJ~- day of December, 2011.


Vicl5'ecowan, Board Member




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OF THE

STATE OF OREGON

Case No. UC-11-10


SERVICE EMPLOYEES INTERNATIONAL ) UNION LOCAL 503, ) OREGON PUBLIC EMPLOYEES UNION, )

) Petitioner, )

) v. )

) MARION COUNTY, )

) Respondent. )

~~~~~~~~~~~~~~-)

NUNC PRO TUNC ORDER

On December 9, 2011, this Board issued an Order in this case. The concurrence of Board Member Gamson was inadvertently omitted from this Order. Accordingly, our December 9, 2011 Order is amended nunc pro tune to add Member Gamson's concurrence.

In all other respects, the Board Order remains unchanged.

DATED this 2J- day of December, 2011.

Susan Rossiter, Chair

Vi~lde Cowan, Board Member

*Paul B. Gamson, Board Member

*Member Gamson, Concurring

The majority copies most of its reasoning and many of the authorities supporting it directly (albeit in truncated form) from my dissent in Marion CounDJ I. 21 PECBR at 350-359 (Member Gamson, dissenting). To the extent the majority adopts my reasoning, I agree with it. To the extent the majority's discussion is less extensive than or different from 1 mine, I remain committed to my dissent as the correct explanation and analytical framework for this and future decisions on the subiect.


1For example, compare footnote 33 in my dissent, 21PECBRat358, with footnote 13 in the majority opinion here.


OF THE

STATE OF OREGON

Case No. UP-069-11


ASSOCIATION OF OREGON CORRECTIONS EMPLOYEES,

Complainant,

v.

) ) ) ) ) ) )

STATE OF OREGON, ) DEPARTMENT OF CORRECTIONS, )

Respondent. ) )

~~~~~~~~~~~~-)


On November 17, 2011, this Board conducted an expedited hearing. The record closed on November 28, 2011, upon receipt of the parties' post-hearing briefs.

Becky Gallagher, Attorney at Law, Fenrich & Gallagher, P.C., Eugene, Oregon, represented Complainant.

Kathryn A. Logan, Senior Assistant Attorney General, Labor and Employment Section, Department of Justice, Salem, Oregon, represented Respondent.

On October 27,2011, the Association of Oregon Corrections Employees (AOCE) filed an unfair labor practice complaint against the State of Oregon, Department of Corrections (State). The complaint, as amended, alleged that the State violated ORS 243.672(l)(e) by refusing to bargainwithAOCEoverAOCE's Health Engagement Model (HEM) proposal. 1 Respondent filed a timely answer.

1In addition to the allegation addressed here,AOCE's original complaint alleged that the State violated ORS 243.672 ( 1 )( e) when it implemented the HEM without first bargaining with the AOCE. This Board bifurcated the complaint and expedited that portion of the complaint which alleges that the State refused to bargain over the AOCE's HEM proposal. The unilateral change allegation has been assigned a new case number to be processed under our normal procedures.

1

The issue presented at hearing is: Did the State violate ORS 243.672(l)(e) when it refused to bargain over AOCE's October 27, 2011 Health Engagement Model (HEM) proposal?

RULINGS

The Board rulings have been reviewed and are correct.

FINDINGS OF FACT

1. AOCE is the exclusive representative of a bargaining unit of correctional employees employed by the State of Oregon, Department of Corrections, a public employer.

2. At all relevant times, AOCE and the State were parties to a collective bargaining agreement which expired on June 30, 2011. The parties recently ratified a new collective bargaining agreement which expires June 30, 2013.

3. On or about December 15, 2010, the parties began negotiating for a successor collective bargaining agreement.

4. Beginning in April 2011, the Public Employees Benefit Board (PEBB) began discussing implementation of a health engagement program that would encourage members to improve their health; the PEBB expected that implementing such a program would eventually reduce health care costs by improving members' health.

The PEBB considered two types of health engagement programs: 1) those that offered a financial incentive to members who participated; and 2) those that imposed a financial disincentive on members who did not participate. The PEBB consulted with Mikel Gray, a partner in Mercer Global Benefits. Gray explained that a successful health engagement program needed broad employee participation and that based on his experience, broad participation could best be obtained through a program that imposed a financial disincentive on non-participating employees.

5. At their July 2011 meeting, the PEBB adopted the HEM program. The purpose of the HEM is to encourage members to identify and address health issues and improve their health.

6. At their August 2011 meeting, the PEBB finalized the elements of the HEM program it planned to offer. The program included the following features and requirements:

2

a. During open enrollment, the period from October 15 through November 15, 2011, when PEBB covered employees selected benefit plans, members must choose whether they and their spouses or domestic partners want to participate in HEM.

b. Members and their spouses or domestic partners who chose to participate in HEM must:

•

•

Take a confidential online questionnaire assessment to identify health risks. Complete two e-lessons that will address health issues identified by the employee's health assessment. The e-lessons will be customized for each employee. Depending on the results of the assessment, employees may also be required to take certain "action steps" to improve their health, such as participating in Weight Watchers.2

c. Beginning January 1, 2012, an employee who chooses not to participate in HEM will pay a $20 monthly surcharge which will be deducted from the employee's salary. If an employee provides coverage for a spouse or domestic partner and the employee does not participate in HEM, the employee will pay a $35 monthly surcharge.

d. An employee enrolled in HEM must complete the health questionnaire by February 15, 2012. An employee who does not complete the health questionnaire by this date must pay a $25 monthly surcharge which will be deducted from the employee's paycheck; the surcharge will be $45 if the employee provides coverage for a spouse or domestic partner.

e. An employee enrolled in HEM must complete two e-lessons by July 15, 2012. An employee who does not complete thee-lessons by this date must pay a $60 monthly surcharge which will be deducted from the employee's paycheck; the surcharge will be $105 if the ernployee provides coverage for a spouse or domestic partner.

f. An employee who enrolls in HEM but does not complete the requirements will pay a maximum surcharge of $563.

7. During successor contract negotiations, AOCE informed the State that it would not agree to participate in the HEM and would not agree to any HEM surcharges.

2PEBB offers the Weight Watchers program at no cost to employees and their spouses or domestic partners.

3

8. By letter dated August 30, 2011, AOCE formally demanded to bargain over the HEM.

9. On August 31, 2011, the parties reached tentative agreement on a successor collective bargaining agreement with the exception of the HEM issue. The State agreed to maintain the status quo and not implement the HEM program while the parties attempted to resolve the issue.

The collective bargaining agreement is in effect from July 1, 2011 through June 30, 2013, and includes the following provision regarding health insurance benefits:

"Section 3. Plan Years 2012 - 2113.

"For the period of January 1, 2012 through June 30, 2013, the Employer will pay ninety five percent (95%) and the employee will pay five percent ( 5%) of the monthly premiwn rate as determined by the PEBB.

"For the period of December 1, 2011 through June 30, 2013, the Employer will pay an additional thirty dollars ($30) monthly subsidy for employee's monthly premiwn rate for employees with salary rates below two thousand six hundred and ninety six dollars ($2696) per month."

10. On October 4, 2011, the parties met to discuss the HEM issue. AOCE proposed that bargaining unit members who chose to participate in HEM would receive a monetary incentive; bargaining unit members who chose not to participate would not pay a surcharge. AOCE explained that it considered the State's HEM program to be punitive because it imposes a salary reduction on bargaining unit members who do not participate.

11. By letter dated October 13, 2011, State Labor Relations Manager Craig Cowan responded to AOCE' s letter demanding to bargain about HEM. The letter stated, in pertinent part:

"After careful review and consideration, the Employer concludes that bargaining has either already occurred (bargained language that the Employer and employee monthly premium contribution are respectively 95%15% on rates established by PEBB), or it involves a prohibited/permissive subject of bargaining.

"ORS 243.125 provides that the Public Employees Benefit Board shall '. ... design benefits, devise specifications, analyze carrier responses to advertisements for bids and decide on the award of contracts ... .'. (emphasis

4

added). To bargain with the Association would require the Employer to bargain on a subject for which it has no authority to bargain. PEBB retains the exclusive statutory authority to design benefits and plans that meet the criteria in ORS 243.135(1).

"Based on the above, we respectfully refuse to bargain on the Association's bargaining demand." (Emphasis in original.)

12. On October 15, 2011, open enrollment began for employees eligible for PEBB coverage. During open enrollment, employees select the plans in which they wish to participate and choose the eligible dependents whom they wish to enroll. In regard to medical plans, full-time employees have a choice of four different plans: PEBB Statewide PPO, Providence Choice, Kaiser HMO, and Kaiser Deductible.3 Employees also choose the level of coverage they want: employee only, employee and spouse or domestic partner, employee and children, or employee and family. The cost to the employee for medical plans varies, depending on the plan and level of coverage selected.

Employees received detailed descriptions of the various available plans, and information comparing the premium costs of, and the coverage offered by, each of the medical plans.

13. The open enrollment form each employee was required to fill out included the following section:

"4. PEBB Health Care and Cost Containment Programs Benefits offered by the Public Employees' Benefit Board include programs to improve employee health and contain costs. You must select your status in the following programs:

"4.a Health Engagement Model (HEM) Program. Employees who participate in this program will pay less for their health care benefit. Spouse or domestic partner participation status is attached to the employee's status (see the HEM Agreement on page 7).

"4. b Tobacco Use Program. Employees and spouses or domestic partners who don't currently use tobacco will pay less for their heath [sic] care benefit.

3Kaiscr plans are available only to employees in the plan service area.

5

"4 .c Other Employer Group Coverage Program. Employees will pay less for their health care benefit if their spouse or domestic partner enrolls in other employer group coverage if it's offered by the spouses' or domestic partners' non Oregon state agency employer."

14. In regard to the HEM program, the open enrollment forms stated:

"4.a Select your Status in the HEM Program "When you elect to participate in the HEM Program, you agree to statements in the HEM Agreement (see the HEM agreement on p. 7).

"When you elect not to participate in the HEM Program, the following amounts will be deducted from your pay every month for the 2012 plan year:

"• Employee Only: $20 "• Employee and Spouse or Domestic Partner: $35"

15. The following "Health Engagement Model (HEM) Program Agreement" was included in the open enrollment forms given to employees:

"1. I will complete the Health Assessment for my health plan, either Kaiser or Providence, within 45 days of my coverage effective date. I will complete two e-lessons within 195 days of my coverage effective date.

"2. I understand that answers from my Health Assessment may be shared with my primary care provider with my approval.

"3. I understand that my Health Assessment will include recommendations customized for me that may include the following required standards:

"If my waist circumference exceeds a certain number of inches, I will participate in Weight Watchers or nutritional counseling or a program of physical activity or an assessment and action plan appropriate for me developed by my provider. The number for women is 35 inches- excluding pregnant women and women within 24 months after giving birth. The number for men is 40 inches.

"If I am a tobacco user, I will participate in a tobacco cessation program, e.g. Quit for Life, or other therapy recommended by my provider.

"If my Health Assessment identifies stress, alcohol use or substance abuse as risks to my health, I will contact the employee assistance program or complete an e-lesson on reducing the risk, or work with my provider to develop a plan of action.

6

"If a licensed medical professional from Kaiser or Providence calls me about a diagnosed chronic condition or other illness based on information submitted by my provider, I will accept or return the call to learn about potential support services for managing my condition.

"4. I will review Decision Points information as available on my health plan's website prior to non-emergency surgeries or medical tests [web site addresses omitted].

"5. I will document the actions I take (and, if applicable, those taken by my spouse or domestic partner) on the HEM log or in a similar form. My documentation will include dates of completing the Health Assessment and e-lessons, contacts with a case or disease manager, and participation in program requirements.

"6. If I am enrolling my spouse or domestic partner for coverage, I have informed my spouse or domestic partner that he or she must individually complete our health plan's Health Assessment and two e-lessons within the given time frames and comply with the recommendations of the HEM Agreement in 3-5, above.

"7. If a medical condition or disability makes it unreasonably difficult for me (or my spouse or domestic partner) to achieve a standard described in 3 (above), or if attempting to do so is medically inadvisable, a reasonable alternative to the standard will be provided.

"8. I understand that I will pay a monthly HEM surcharge if either I or my spouse or domestic partner misses deadlines for completing the Health Assessment and two e-lessons."4

16. The open enrollment form required the employee to choose whether to participate in the HEM program and specify whether the employee covered a spouse or domestic partner. The form also gave the employee the choice of opting out of PEBB medical plans and avoiding the HEM surcharge.

4The forms and information given to employees during open enrollment did not specify the amount of the monthly surcharge for an employee's (or an employee's spouse or domestic partner's) failure to comply with these requirements.

7

17. In regard to the "Tobacco Use Program," the open enrollment form required employees to specify whether the employee or the employee's spouse or domestic partner currently used tobacco. The form explained that if the employee or the employee's spouse or domestic partner was a current tobacco user, a surcharge of $25 or $50 would be deducted from the employee's monthly paycheck during the 2012 plan year. The form gave employees the choice of opting out of the PEBB medical plans and avoiding the tobacco surcharge.

18. In regard to the "Other-Employer Group Coverage Program," the open enrollment form required employees to specify if the employee's spouse or domestic partner was eligible for PEBB coverage, or was eligible for coverage under another employer's health care plan. The form then required the employee to specify whether the spouse or domestic partner waived PEBB or other employer coverage. The form explained that if the employee's spouse or domestic partner waived medical coverage available to them through a non-Oregon-state-agency employer, $50 would be deducted from the employee's monthly paycheck during the 2012 plan year. The form gave the employee the choice of avoiding this surcharge by opting out of PEBB medical plans or by refusing to enroll a spouse or domestic partner in the employee's PEBB plan.

19. On October 20, 2011, the Association filed a petition to initiate binding interest arbitration, its cost summary, and its final offer. The final offer, as amended on October 27, 2011 states:

"Section 7. Health Engagement Model (HEM) "Effective and retroactive to January l, 2012 employees may

voluntarily elect to participate in the HEM program offered through PEBB. Employees not electing to participate and employees who voluntarily participate but are later deemed 'non-compliant' shall not be subject to the involuntary wage reduction imposed as the HEM surcharge. Any surcharges imposed as of January l, 2012 to the date of the interest arbitration award shall be reimbursed to employees."

20. Money that PEBB collects from the the HEM surcharge will be placed in a "Stabilization Fund," a subaccount of PEBB's Revolving Fund. ORS 243.167(1) authorizes the creation and operation of the Revolving Fund and lists the acceptable uses of the fw1d's assets:

"There is created the Public Employees' Revolving Fund, separate and distinct from the General Fund. The balances of the Public Employees' Revolving fund are continuously appropriated to cover expenses incurred in connection with the administration of ORS 243.105 to 243.285 and 292.051. Assets of the Public Employees' Revolving Fund may be retained

8

for limited periods of time as established by the Public Employees' Benefit Board by rule. Among other purposes, the board may retain the funds to control expenditures, stabilize benefit premium rates and self-insure. The board may establish subaccounts within the Public Employees' Revolving Fund."

PEBB plans to use the money collected from the HEM surcharges and placed in the "Stabilization Fund" to provide the reserves needed to self-insure two of PEBB's medical plans.

CONCLUSIONS OF LAW


2. The State did not unlawfully refuse to bargain about AOCE's October 27, 2011 HEM proposal.

Introduction

In an effort to increase State employees' willingness to improve their health and control rising healthcare costs, the PEBB decided to implement the HEM program in 2012. HEM requires employees to take certain steps to assess and improve their personal health. If an employee or the employee's spouse or don1estic partner chooses not to participate in the program, or chooses to participate but does not fulfill the program's requirements, a surcharge will be deducted from the employee's monthly salary.

Although AOCE and the State reached agreement on a successor contract, they could not agree on HEM and attempted to resolve the issue separately. The parties' discussions were not successful. On October 27, 2011, AOCE proposed that participation in the HEM program be voluntary, and that employees who chose not to participate pay no monthly surcharge. AOCE charges that this proposal concerns a mandatory subject of bargaining and that the State violated its good faith bargaining duty under ORS 243.672(l)(e) by refusing to negotiate about the proposal.

Under the Public Employee Collective Bargaining Act (PECBA), public employees have the right to "collective bargaining with their public employer on matters concerning employment relations." ORS 243.662. "Employment relations" include "matters concerning direct or indirect monetary benefits, hours, vacations, sick leave, grievance procedures and other conditions of employment." ORS 243.650(7)(a). An employer is obligated to negotiate about subjects included in the statutory definition of "employment relations." Service Employees Int'l Union Local 503 v. DAS, 183 Or App 594, 597, 54 P3d 1043 (2002). Any subject which is not mandatory is permissive; parties

9

may only bargain over permissive subjects if they mutually agree to do so and if the permissive subject is not prohibited by law. ORS 243.650(4). A subject prohibited for bargaining "is one which is specifically contrary to statute or would require a party to act contrary to statute." Eugene Police EmplqyeeAssociation v. Ciry of Eugene, Case No. UP-5-97, 17 PECBR 299, 304 (1997), ajf d, 157 Or App 341, 972 P2d 1191 (1998), rev den, 328 Or 418, 987 P2d 511 (1999).

AOCE contends that under ORS 243.650(7)(a), the State must bargain about its HEM proposal. AOCE argues that HEM affects health insurance benefits, a subject both parties agree is an indirect monetary benefit. In addition, AOCE asserts that HEM affects a direct monetary benefit because employees who choose not to participate in HEM (or who choose to participate but do not comply with the program requirements) will have their salaries reduced.

The State, however, asserts that the legislature has given PEBB responsibility to design, select, and implement health benefit plans for State employees. According to the State, AOCE' s HEM proposal proposes a change in the contents of the health benefit plans offered by PEBB. The State argues that such a change conflicts with PEBB's exclusive statutory authority to design benefit plans and therefore concerns a subject prohibited for bargaining.

Standards for Review

We begin our analysis of the parties' arguments by reviewing cases in which we have determined the State's obligation to bargain about a subject over which a State agency has statutory authority. InAFSCME Local Union 328 v. State of Oregon, Executive Department, Case Nos. UP-78/79/80/81/89/90/91/92/93/94-92, 14PECBR180 (1992), several unions proposed changes in the plans offered by PEBB's predecessor-the State Employees Benefit Board (SEBB) .5 The changes proposed were: an increase in the dollar amounts paid by SEBB plans for mental health, orthodontia, and vision benefits; the addition of domestic partners to the list of dependents eligible for coverage; and a guarantee that benefits would remain unchanged during the life of the contract. The State refused to negotiate over these proposals, contending that they concerned subjects prohibited for bargaining. We agreed with the State and dismissed the unions' complaints.

5Prior to 1998, benefits to State employees were provided by two different entities-SEBB and the Bargaining Unit Benefits Board. Effective Januaiy I, 1998 the legislature abolished these boards and created PEBB as their successor. Or Laws 1997, ch 222.

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We noted that the legislature charged SEBB with the duty and responsibility to design and provide benefit plans to a group of State employees and to "make benefit plan decisions based on the welfare of both the State and its employees." Id. at 190 (emphasis in original). We concluded that this statutory mandate could not be reconciled with the purposes and the policies of the PECBA:

"On the one hand, SEBB is charged with deciding what is 'best' for both the State and its employees. On the other, the PECBA contemplates an essentially adversarial process to arrive at, not what is best for both sides, but what both will be required to abide." Id. (Emphasis in original.)

We found further incompatibility between SEBB's statutory authority and the PECBA in the requirement that SEBB give primary consideration to cost contairnnent principles when designing benefit plans. We concluded that benefit plans which were produced through the collective bargaining process were

"antithetical to the cost containment principles underpinning SEBB's responsibilities. Even more directly at odds with cost containment would be benefit packages bargained individually with the scores of state bargaining units, thus reducing the size of covered groups and concomitantly increasing provider risk and therefore premium rates." Id. at 191 (footnote omitted).

In Oregon State Police Officers Assn. v. State of Oregon, 127 Or App 144, 871P2d1018 (1994), the Court of Appeals affirmed our conclusion that the State did not violate its good faith bargaining duty under ORS 243.672(l)(e) by refusing to bargain about the impacts of the sale of a State-owned parking structure. The sale resulted in an increase in the rates State employees paid for parking. The Court agreed with our conclusion that the Department of General Services (DGS)

"has statutory authority to operate and dispose of parking facilities, and its exercise of that authority is not subject to bargaining under the Public Employee Collective Bargaining Act." Id. at 146.

Finally, inA~sociation of Oregon C01nctio11s Empll!Jlees v. State of Oregon, Department of C01nctions Empll!Jlees, Case No. UP-91-93, 14 PECBR 832, 875 (1993), AWOP, 133 Or App 602, 892 P2d 1030 (1995), rev den, 321Or268, 895 P2d 1362 (1995), we considered the State Department of Corrections' obligation to bargain about a proposal that would require the State to provide all union bargaining unit members with uninsured and underinsured motorist coverage up to a limit of $1,000,000. We noted that under ORS 278.405(1) and (2), DGS was required "to purchase insurance policies, develop and administer self-insurance programs, or any combinations thereof, as may be

11

in the best interest of the state" and provide insurance coverages it determined to be "necessary or desirable for the efficient operation of state operation." We held that the Department of Corrections' "obligations under its organiclaw are incompatible with the processes required under the PECBA as discussed generally inAFSCME Local Union No. 328 v. State of Oregon, Executive Department, Case No. UP-78-92, 14 PECBR 180, 190 (1992)." Association of Oregon C01Tections Emplqyees, 14 PECBR at 875.

We derive the following rule from these cases: if a proposal concerns a subject over which a State agency has statutory authority, we decide if the agency's statutory mandate is compatible with the State's PECBA bargaining obligation. If the bargaining obligation cannot be reconciled with the agency's mandate, we will conclude that the proposal concerns a subject prohibited for bargaining.

PEBB's Statutory Mandate

PEBB's statutory duties and obligations are very similar to those of SEBB. Like SEBB, PEBB provides benefit plans to"[ e]ligible [State] employee[s] ."ORS 243.l 05( 4). The nature and extent of PEBB's authority to provide these plans is described in ORS 243.125:

"(l) The Public Employees' Benefit Board shall prescribe rules for the conduct of its business. The board shall study all matters connected with the providing of adequate benefit plan coverage for eligible state employees on the best basis possible with relation both to the welfare of the employees and to the state. The board shall design benefits, devise specifications, analyze carrier responses to advertisements for bids and decide on the award of contracts.

"(2) In carrying out its duties under subsection ( 1) of this section, the goal of the board shall be to provide a high quality plan of health and other benefits for state employees at a cost affordable to both the employer and the employees."

PEBB is required by law to provide employees with "high quality" benefit plans "at a cost affordable to both the employer and the employees." ORS 243.125(2) (emphasis added). Coverage provided by PEBB must be selected "on the best basis possible with relation both to the welfare of the employees and to the state." ORS 243.125 (1). In choosing appropriate plans, PEBB must consider factors such as "[a] competitive marketplace;" "[c]reativity and innovation;" and "[t]he improvement of employee health." ORS 243.135(l)(b), (f), and (h). These obligations and considerations are incompatible with the State's bargaining obligation under the PECBA. As we explained inAFSCME Local Union No. 328, the PECBA bargaining process is not designed to produce the "best" plans for both the employer and employee, or plans that

12

address cost containment issues because they are "affordable" to the employer. The process is even less likely to result in implementation of plans that improve employee health, demonstrate "creativity or innovation," or reflect a "competitive marketplace." Thus, we conclude that PEBB's statutory powers and duties are incompatible with the State's PECBA bargaining duty.

AOCE's HEM proposal addresses a particular feature included in the medical plans offered by PEBB. The contents and design of these plans are matters over which the legislature has given PEBB exclusive authority. Because the State cannot bargain about the HEM proposal without contravening PEBB's statutory mandate, we conclude that the proposal concerns a prohibited subject for bargaining.6

PEBB's Authority to Impose HEM Surcharges

AOCE argues that PEBB cannot lawfully "design the HEM with conditions that unilaterally impose a monetary surcharge on employees who refuse to voluntarily join or who become non-compliant." AOCE asserts that by law, PEBB has no authority to impose a surcharge. According to AOCE, there is therefore no conflict between PEBB's statutory mandate and the State's bargaining obligation and the State can and must bargain about HEM. AOCE cites a number of statutes which it claims prohibit PEBB from deducting a surcharge from the salaries of employees who do not participate in HEM, or who agree to participate in HEM but fail to complete the program's requirements. We consider each of these statutes in turn.

ORS 243.135(4) permits payroll deductions for the cost of PEBB insurance benefits not covered by the State "upon receipt of a signed authorization from the employee indicating an election to participate in the plan or plans selected and the deduction of a certain swn from the employee's pay." According to AOCE, this statute permits a deduction only when an employee elects to participate in a plan, but does not permit a salary deduction for an employee who chooses not to participate in a plan such as HEM. AOCE's argument is not well-founded.

Employees make an "election to participate" in a PEBB plan when they sign up for PEBB coverage during open enrollment. Employees are not required to accept PEBB benefits; they can decline PEBB coverage and refuse to enroll in any PEBB plans. Oregon Administrative Rules 101-020-0018. Once the employee decides to accept PEBB coverage, the employee has a number of choices to make regarding plan benefits and

6Although the State is prohibited from bargaining about the contents of plans offered by PEBB, it is obligated to bargain about the amount it will contribute toward the costs of these plans.

13

levels of coverage. Participation in the HEM program is simply one of the choices an employee who elects PEBB coverage must make; as with other choices required of the employee, it affects the amount the employee pays for health care. 7

AOCE argues that any salary deductions PEBB will make for employees or their spouses or domestic partners who fail to complete the requirements of HEM will also violate ORS 243.135(4). AOCE observes that during open enrollment, employees who chose to participate in HEM were required to review and agree to certain conditions of the program. One of these conditions was the imposition of a monthly surcharge, to be deducted from the employee's salary, if the employee (or employee's spouse or domestic partner) failed to meet deadlines for completing the requirements of HEM. The materials given to employees during open enrollment do not specify how much will be deducted from the employee's salary for non-compliance with HEM. The Union notes that ORS 243.135(4) only permits "deduction of a certain sum from an employee's pay." (Emphasis added.) Since the amount of the surcharge for HEM non-compliance is not certain, the Union argues that PEBB exceeded its statutory authority by requiring employees to agree to this type of salary deduction. We disagree.

By choosing to participate in PEBB medical plans and agreeing to participate in HEM, an employee authorizes all appropriate payroll deductions. Among the conditions to which an employee choosing HEM must agree is the statement that "I understand that I will pay a monthly surcharge if either I or my spouse or domestic partner misses deadlines for completing" the requirements of HEM. By agreeing to this statement, the employee authorizes deductions of a "certain sum" to be determined by PEBB if the employee fails to comply with the requirements of the HEM program. In other words, the employee who agrees to all the conditions of HEM also agrees that PEBB can decide how much will be deducted from the employee's pay for non-compliance with HEM. The proposed surcharge for failing to meet HEM's requirements does not violate ORS 243.135(4).8

7We also note that during 2011 open enrollment, PEBB required employees to "select [their] status" in two programs other than HEM that affected their monthly salaries. Open enrollment forms required employees to specify whether they or their spouses or domestic partners were currently using tobacco. If the employee (or the employee's spouse or domestic partner) uses tobacco, a monthly deduction of $25 or $50 will be taken from the employee's paycheck. The forms also required employees to specify if their spouses or domestic partners waived "enrollment in other-medical employer group coverage to them from a non-Oregon -stateagency." If the spouse or domestic partner waives enrollment, $50 will be deducted from the employee's monthly salary. AOCE has not challenged either of these plans.

8AOCE argues that the HEM surcharge violates statutmy provisions which permit salary deductions only if: the deductions are "authorized in writing by the employee" and "are for the

(continued ... )

14

PEBB's Authority to Require Medical Testing of Employees

AOCE contends that the HEM program requires employees to provide personal and confidential medical information and to submit to "invasive medical testing." According to AOCE, the HEM program significantly intrudes into employee privacy and, therefore, concerns a mandatory subject for bargaining. In support of its contention, AOCE cites Federation of Oregon Parole and Probation Officers v. State of Oregon, Department of C01nctions, Case No. UP-117-89, 14 PECBR 693 (1993), where we held that the employer violated its good faith bargaining duty under ORS 243.672(I)(e) when it required an employee to submit to a drug test.

We do not hold that PEBB's 2012 HEM program involves the type of medical testing-urinalysis-that we held was mandatory in POPPO because it affected considerations of employee privacy and test reliability. Id. at 705. The personal

( ... continued) employee's benefit" (ORS 652.610(3)(b)); "[t]he employee has voluntarily signed an authorization for the deduction of any other item, provided that the ultimate recipient of the money withheld is not the employer" (ORS 652.610(3)(c)); or the "deduction is authorized by a collective bargaining agreement to which the employer is a party." (ORS 652.610(3)(d)). AOCE contends that the HEM surcharge violates all three of these provisions.

Contrary to AOCE's assertion, an employee provides written authorization for the HEM surcharge when the employee declines to participate in HEM during the open enrollment process. The decision not to participate in HEM and accept a salary deduction is voluntary. In addition, the deduction benefits the employee: the employee need not participate in a program the employee dislikes. Accordingly, the HEM surcharge does not violate ORS 652.610(3)(b). The other provisions cited by AOCE are inapplicable to the facts of this case.

AOCE also contends that PEBB's plan to place money collected from HEM surcharges in its Revolving Fund violates ORS 243.285(2), which requires that any deductions made from employees' salaries for PEBB health benefits must "be paid over promptly to the carriers or persons responsible for payment of premiums to carriers." (Subsection a.) AOCE contends that this law requires that PEBB use money collected through salary deductions only to pay insurance premiums, and that PEBB will act unlawfully if it places money collected through the HEM surcharge in its Revolving Fund. AOCE's arguments are not well founded.

Under ORS 243.285 (2 ), PEBB may pay money deducted from employee salaries to either to the insurance carriers to pay for premiums (subsection a), or "[w]ith respect to self-insurance benefits, in accordance with rules, procedures and directions of the Public Employees' Benefit Board."(Subsection b.) PEBB has chosen to self-insure two of its medical plans, and has also decided, consistent with its authority under ORS 243.165 ( 1 ), to use some of the money in its Revolving Fund to provide reserves for these self-insured plans. PEBB's intended use of the money received through HEM surcharge deductions is lawful.

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information to which AOCE objects is the employee's waist measurement, which the HEM "Program Agreement" requires the employee to divulge. Such a disclosure does not involve highly personal information or submitting to an uncomfortable, unpleasant, or intrusive procedure. Nor is there likely to be a problem with the reliability of a waist measurement; obtaining the measurement is simple and straightforward. Finally, we note that in POPPO, an employee's failure to submit a urine sample for a drug test resulted in discipline and possible discharge. Id. at 697. Refusal to participate in HEM has no employment-related consequences for an AOCE bargaining unit member. HEM is designed to encourage employees' interest in improving their health; it is not a tool to regulate employees' behavior in the workplace. The State's 2012 HEM program does not affect employee privacy to such an extent that it concerns a mandatory subject for bargaining.

Conclusion

For the reasons stated above, we conclude that AOCE' s HEM proposal concerns a prohibited subject for bargaining. We will dismiss the complaint.

DATED this3l2. day of December 2011.

Susan Rossiter, Chair

*Paul B. Gamson, Board Member

I'/ / / /? . . ···//& / /c/~J

Viclde Cowan, Board Member

*Member Gamson Dissenting

AOCE made a bargaining proposal concerning the amount of money bargaining unit members must pay out of their own pockets towards a new monthly surcharge on their health insurance premiums. The State refused to bargain over it. The issue before the Board is whether AOCE's proposal concerns a mandatory subject for bargaining. If it does, the State has an obligation to bargain over it, and it violated ORS 243.672(l)(e) when it refused to do so. In my view, the amount of money employees must pay out of their pockets towards insurance premiums concerns "direct or indirect monetary benefits" which are mandatory under ORS 243.650(7) (a). The majority concludes the

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proposal concerns a prohibited subject for bargaining rather than mandatory one. It holds that the State's PECBA bargaining obligation irreconcilably conflicts with other statutes, and it dismisses the complaint. In my view, the majority mischaracterizes AOCE's proposal, misinterprets the relevant statutes, applies the wrong analysis, and thereby reaches the wrong conclusion.

I

The proper analysis requires three steps. First, we must determine the subject of the proposal, and second, we must decide whether that subject is mandatory for bargaining w1der the PECBA. Intemational Association of Firefighters, Local 314 v. Ciry of Salem, Case No. C-61-83, 7 PECBR 5819, 5824-5827 (1983), affd, 68 Or App 793, 684 P2d 605, rev den 298 Or 150 ( 1984). If the proposal is non-mandatory, the analysis ends and we dismiss the complaint. If it is mandatory under the PECBA, we proceed to the third step and determine whether the proposal is nevertheless prohibited for bargaining because it would violate a constitutional provision or statute outside of the PECBA. SEIU Local 503 v. State of Oregon, Department of Administrative Services, Case No. UP-12-01, 19 PECBR325, 332 (2001), ajfd, 183 Or App 594, 54 P3d 1043 (2002).

Accordingly, I begin by determining the subject of AOCE's proposal. To determine the subject of a proposal, we look at both its specific language and the evidence about it. Intemational Association of Firefighters, Local 314 v. Ciry of Salem and Dearbom, Personnel Director, 7 PECBR 5819, 5824 (1983).

Some brief background provides context for understanding the proposal. By statute, PEBB designs the health insurance plans available to State employees and enters contracts with insurance carriers to provide the benefits. PEBB establishes the amount of the premium, but it has never designated how much the State contributes towards that premium amount and how much the employees pay out of their pockets. Prior to 1997, the State's contribution was established by statute. That statute was repealed in 1997, and since that time, the State's contribution amounts have always been determined through collective bargaining.

PEBB's most recent plan design includes a feature it calls the Health Engagement Model (HEM). As the majority describes in greater detail, HEM requires all participants to complete a health assessment and take steps to reduce or eliminate certain risky lifestyle choices. Employees who choose not to participate, or who agree to participate but do not follow through, are assessed a monthly premium surcharge which is automatically deducted from their paychecks. AOCE's proposal concerns this premium surcharge.

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AOCE's proposal states:

"Effective and retroactive to January l, 2012 employees may voluntarily elect to participate in the HEM program offered through PEBB. Employees electing not to participate and employees who voluntarily participate but are later deemed 'non-compliant' shall not be subject to the involuntary wage reduction imposed as the HEM surcharge. Any surcharges imposed as ofJanuary 1, 2012 to the date of the interest arbitration award shall be reimbursed to employees."

We interpret provisions of a labor agree1nent by first examining its text in the context of the document as a whole. If the text and context are ambiguous, we proceed to the second step and examine extrinsic evidence of the parties' intent. If the provision remains ambiguous after applying the second step, we proceed to the third step and apply appropriate maxims of contract construction. Lincoln Counry Education Association v. Lincoln Counry School District, Case No. UP-14-04, 21PECBR20, 29 (2005).

My colleagues fail to follow this analytical template. They quote the proposal in the findings of fact, but they make no attempt to analyze it.

AOCE's proposal contains three parts. First, it would make participation in HEM voluntary. That does nothing more than recite one of the provisions of HEM. Under HEM, employees can voluntarily opt out and face the surcharge, or they can decline PEBB insurance benefits altogether and not be subject to HEM. Since neither the State nor the majority has identified any conflict with a statutory provision or offered any other reason why this portion of the proposal is non-mandatory, I will not discuss it further. See East Counry Bargaining Council v. Centennial School District No. 28/T, Case No. C-185-82, 8 PECBR 6776 (1985) (Order After Remand) (a proposal that would require an employer to comply with statutory provisions is mandatory for bargaining). The real crux of AOCE' s proposal is not about employees exercising the right to opt out of HEM, but instead concerns the monetary consequences of doing so. Those consequences are addressed in the second and third parts of the proposal.

The second part of AOCE's proposal requires the State to reimburse employees for any premium surcharges they incur between January 1, 2012 and the date of the interest arbitration award. The amount an employer contributes towards the employees' insurance premium is a "direct or indirect monetary benefit" under ORS 243.650(7)(a) and thus concerns a mandatory subject for bargaining. Neither the State nor the majority contend otherwise.

The third part of AOCE's proposal would apply after the date of the interest arbitration award. It states that employees who choose not to participate in HEM "shall

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not be subject to the involuntary wage reduction imposed as the HEM surcharge." The intent of this portion of the proposal is not clear on its face. "A contract is ambiguous if it can reasonably be given more than one plausible interpretation." Portland Fire Fighters' Ass'n v. City of Portland, 181 Or App 85, 91, 45 P3d 162, rev den 334 Or 491, 52 P3d 1056 (2002). Logically, there are a variety of ways in which an employee could "not be subject to the involuntary wage reduction imposed as the HEM surcharge." The contract proposal does not on its face specify how this will be accomplished. One possibility would be for PEBB to withdraw the HEM provision as it applies to employees in the AOCE bargaining unit who choose not to participate. The majority apparently adopts this interpretation, although it never explains why. But there is at least one other way to relieve employees of the surcharge-the State could pay it (by, for example, reimbursing employees after the surcharge is deducted from their paychecks, or giving employees a raise in an amount equal to the surcharge). These are both plausible interpretations of the proposal, so we move to the second step of the analysis and examine external evidence of the parties' intent.

AOCE President Michael Van Patten testified without objection and without contradiction that the union's primary concern is the cost of the surcharge to its members and thatAOCE wanted to bargain with the State about the cost. Similarly, on the other side of the bargaining table, Craig Cowan, the State's lead negotiator, clearly understood that AOCE wanted to bargain over the amount the State would contribute towards the surcharge. One of the reasons he gave for refusing to bargain over AOCE' s proposal was that the parties had already bargained over the subject of the State's premium contribution: according to Cowan, the parties' collective bargaining agreement contains "language that the Employer and employee monthly premium contribution are respectively 95%/5% on rates established by PEBB." Thus, both parties understood that the issue raised in AOCE's proposal concerned the amount the State would contribute towards the premium surcharge.

This evidence resolves any ambiguity. Both parties understood that AOCE's proposal concerns the State's contribution towards the HEM premium surcharge. Further, both the State (Respondent's Pre-Hearing Memorandum at 3) and the majority (slip opinion at footnote 6) acknowledge that the amount an employer contributes to PEBB insurance premiums is a mandatory subject for bargaining under the PECBA. ORS 243.650(7)(a). We thus know the subject of the proposal and that the subject is mandatory for bargaining under the PECBA.

II

I turn to the final question in the analysis, which is the real nub of this case: is the State's PECBA obligation to bargain over its contributions to the HEM surcharge incompatible with the PEBB statutes? The majority finds the two statutes incompatible. I disagree.

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I begin with some general principles. An interpretation of statutes that makes them incompatible is disfavored. ORS 174.010 provides that "where there are several provisions or particulars such construction is, if possible, to be adopted as will give effect to all." Whenever possible, courts construe statutes on the same subject as "consistent and in harmony with one another" and in a way that gives "effect to all." State v. Langdon, 151 Or App 640, 645, 950 P2d 410 (1997), affd, 330 Or 72, 999 P2d 1127 (2000). A conflict between statutes is established only when there is a "plain, unavoidable, and irreconcilable repugnancy." State v. Shumway, 291 Or 153, 162, 630 P2d 796 (1981). See also State v. Guzek, 322 Or 245, 266, 906 P2d 272 (1995). Thus, if there is any plausible interpretation of the statutes that makes them compatible, we should adopt it.

To determine if there is an irreconcilable conflict, we need to compare the PECBA and PEBB statutes. As discussed above, the PECBA requires bargaining over proposals concerning the amount of money the State will pay towards health insurance premiums. I turn to the PEBB statutes (ORS 243.061to243.302) to determine whether any of its provisions plainly and unavoidably prohibit such bargaining. I conclude they do not.

The goal when interpreting a statute is to determine what the legislature intended. ORS 174.020(l)(a); Holcomb v. Sunderland, 321Or99, 105, 894 P2d 457 (1995). The best indication of legislative intent is the language it chose. I therefore begin by examining the PEBB statutory language in context. State v. Gaines, 346 Or 160, 165 206 P3d 1042 (2009).9

Neither the State nor the majority have identified, and I have not found, any provision of the PEBB statute that expressly prohibits bargaining over the amount of money the State contributes to employee health insurance premiums. 10 In my view, this alone is sufficient to establish that the PEBB statutes are not plainly and irreconcilably repugnant to the PECBA duty to bargain over the employer contribution to employee health insurance premiums.

Context confirms that there is no conflict between the statutes. Context includes other provisions of the same statute. Stull v. Hoke, 326 Or 72, 79-80, 948 P2d 722 ( 1997). Various provisions in the PEBB statutes regulate other aspects of employer contributions to insurance premiums. E.g., ORS 243.170 (permits employees to share

9Gaines also directs us to consider legislative history. We need to consider only the legislative histmy provided by the parties. ORS 174.020(3). Neither party has offered any legislative history.

100RS 243.105(7) defines "premium" as "the monthly or other periodic charge for a benefit plan." The State concedes that the HEM surcharge is a premium.

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a job, but specifies that the State need not contribute more for health insurance premiums than the amount it would have to contribute if only one employee was in the position); ORS 243.252 (prohibits the State from paying any part of the cost for insurance available to retired State employees); ORS 243.27 5 (permits PEBB to contract to provide insurance benefits in addition to those required by statute, and specifies the State can contribute to the cost of such benefits); and ORS 243.291 (requires PEBB to make long-term care insurance available, but specifies that employees are responsible for the cost). These provisions demonstrate that the legislature was aware of the issues regarding employer contributions and knew how to regulate the contributions when it wanted to. The absence of a provision expressly regulating the State's premium contributions in the circumstances here indicates the legislature did not intend one. Jordan v. SAIF, 343 Or 208, 217, 167 P3d 451 (2007) (the legislature's use ofa termin one provision but not another indicates a purposeful omission).

Context also includes prior versions of the statute. Krieger v. Just, 319 Or 328, 876 P2d 754 (1994). Fonner ORS 243.175 established the amount the State was required to contribute to the cost of employee health insurance premiums. 11 In 1997, the legislature repealed ORS 243.175. 1997 Or Laws ch 222, § 54. As a result, there is now no provision in the PEBB statutes regulating the State's contribution to employee health insurance premiums. Permitting the parties to address the issue in collective bargaining under the PECBA would harmonize the statutes and is therefore the interpretation we should adopt.

That outcome is bolstered even further by ORS 240.321(2), which provides that State employees in a recognized or certified bargaining unit "shall have all aspects of their wages, hours and other terms and conditions of employment determined by collective bargaining agreements" negotiated under the provisions of the PECBA. (Emphasis added.) Given the breadth of this statute ("all aspects of their wages * * * and other terms and conditions of employment"), coupled with the PEBB statutes' silence, it seems clear that the legislature intended the State to collectively bargain over its contribution to the pre1nium cost of employee health insurance.

For all of these reasons, the State's PECBA bargaining obligation concerning the amount of its contribution to employee health insurance premiums is not repugnant to

11In 1971, the statute required the State to contribute the entire cost of full family health insurance, up to $10 per employee per month. 1971 Or Laws ch 527, § 8(1). In 1973, the legislature increased the State payment cap to $15 per employee per month, 1973 Or Laws ch 225, § 1 (2), and in 1975, it raised the cap again to $30 per employee per month, 1975 Or Laws ch 667, § 3 (2). Then, in 1977, the legislature adopted a different approach. It eliminated the reference to a dollar amount, and instead required the State to pay either the full cost of health insurance for employees and their families, or the amount appropriated by the legislature, whichever is less. 1977 Or Laws ch 570, § 3(2).

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the PEBB statutes. I can draw only one conclusion-the State acted in bad faith, in violation of ORS 243.672(1)(e), when it refused to bargain with AOCE over a mandatory proposal concerning the amount of the State's contribution to the HEM premium surcharge.

III

The maionty follows a different analytical path. It concludes there is an irreconcilable conflict between PECBA and the PEBB statutes. As explained above, I believe this conclusion is analytically unsound, and I disagree with it. But even if we assume for the sake of argument that the majority is correct and there is an irreconcilable conflict between the statutes, that is not the end of the matter. We still need to determine which of the conflicting statutes to follow.

I find the majority's reasoning on this issue particularly troubling. It reviews several cases and "derives the* * *rule" that when the PECBA's bargaining obligation is incompatible with another state agency's statutory mandate, the other agency's statute will prevail. The cases clearly do not announce such a sweeping "rule," and the majority provides no basis in law or reason for such a blanket statement. Why does the majority relegate PECBA's bargaining obligations to such a low status that it will always lose out whenever there is a conflict? Why shouldn't the PECBA prevail over another statute in at least some circumstances? The majority offers no answers.

In addition, the majority's "rule" ignores several familiar requirements of statutory construction designed to resolve such conflicts. For example, ORS 17 4.020(2) provides: "When a general and particular provision are inconsistent, the latter is paramount to the former so that a particular intent controls a general intent that is inconsistent with the particular intent." Similarly, when two statutes are in irreconcilable conflict, the courts may determine that the newer statute impliedly amends or repeals the older one. Balzer Mch. v. Kline/and Sand & Gravel Co., 271 Or 596, 601, 533 P2d 321 (1975). The majority ignores these statutory and caselaw directives. It does not examine which statute is general and which is particular, and it does not determine which statute was enacted later. These standards require a case-by-case consideration. The majority instead announces its own "rule" which ignores the individual circumstances of each case and declares that the PECBA bargaining obligation will always be subservient whenever there is a conflict. For these reasons, I strongly disagree with the majority's newly-announced rule.

I offer a few further observations on the majority order. It relies heavily on cases that do not apply here. Oregon State Police Officers Assn. v. State of Oregon, 127 Or App 144, 871P2d1018 (1994) deals with the sale of a state-owned parking

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structure, not with state contributions to employee health insurance premiums. 12

Similarly,Association efOregon Cmnctions Employees v. Department of Corrections, Case No. UP-91-93, 14 PECBR 832, 875 (1993), AWOP, 133 Or App 602, 891 P2d 1030 ( 1995), reJJ den, 321 Or 268 ( 1995) concerns uninsured motorist coverage, a matter not within PEBB's jurisdiction.

The majority relies most heavily on AFSCME Local Union No. 328 v. State ef Oregon, ExecutiJJe Department, 14 PECBR 180 (1992). In that case, the union proposed additions to and changes in the benefits offered by PEBB's predecessor. The majority of the Board there held that the proposal was prohibited for bargaining because it encroached on the statutory authority of PEBB's predecessor. Even if that case is correctly decided (and I believe it is not for the reasons compellingly set forth in Member Rein's dissent), it has no bearing here. Plan design and benefits, which were the core of the proposal inAFSCME, are expressly delegated to PEBB. The amount of the State's contribution to the premium, which is the core subject of the proposal here, is not a decision statutorily delegated to PEBB. The majority errs in treating theAFSCME case as controlling because it deals with a statutory conflict which does not exist here.

I also note that both the State and the majority continually point out that PEBB has authority to establish premium rates. Even if that is true, it is irrelevant. AOCE's proposal does not concern the amount of the premium; it concerns how much of that premium the State will pay, a matter not covered by the PEBB statutes.

IV

In the long run, the majority's actual holding in this case-thatAOCE's particular proposal concerns a prohibited subject for bargaining-will probably matter very little, if at all, to the parties. Once this Order is issued, AOCE can promptly modify its proposal to specify that the State will pay for all (or part) of the HEM premium

12The majority reads too much into the Court of Appeals opinion. The opinion is brief, just three paragraphs. It notes that this Board based its decision on two separate and independent grounds. The union challenged only the second of those grounds on appeal. The court dismissed the appeal because the union did not challenge the first basis for the decision, which was that the employer did not change the status quo. Thus, even if the union prevailed on the issue it raised on appeal, the outcome would remain the same under the Board's status quo reasoning. The court held that the union "fails to present a basis for reversal." Thus, although the court affirmed the outcome, the majority incorrectly asserts that the court agreed with the Board's reasoning in the case.

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surcharge. 13 Then, pursuant to ORS 243.746(3), AOCE can submit that modified proposal in its "last best offer." That modified proposal, and not the one rejected here by the majority, will be the proposal considered by the interest arbitrator. ORS 243. 7 46( 4). Significantly, both the State and the majority concede that the parties must bargain over contributions towards the premium costs established by PEBB. See Respondent's Pre-Hearing Memorandum at 3 ("A collective bargaining agreement, however, could establish the contribution amounts to be paid by the employer and the employees for the plans designed by PEBB. ");and slip opinion at footnote 6 ("Although the State is prohibited from bargaining about the contents of plans offered by PEBB, it is obligated to bargain about the amount it will contribute toward the costs of these plans.").

Even though the specific holding in this case may be of little moment, I fear that the precedent established in the majority's analysis will lead to errors not only here but in future cases. In my view, the majority has adopted the wrong analytical framework at everyturn-wheninterpretingAOCE's proposal, when analyzing the relevant statutes, and in adopting a "rule" that makes the PECBA bargaining obligation subservient whenever it conflicts with a statute regarding the authority of another state agency.

For all of these reasons, I believe the majority errs in deciding that AOCE's proposal is prohibited for bargaining. I would hold that AOCE's proposal is mandatory and that the State violated ORS 243.672(l)(e) when it refused to bargain over it. I therefore dissent.

Paul B. Gan1son, Board Member


13There are undoubtedly many ways for AOCE to accomplish its goal. For example, it could propose that the State reimburse bargaining unit members for any surcharge amounts taken from employee paychecks; or it could propose that employees subject to the surcharge get a pay raise equal to the amount of the surcharge. The precise form the proposal takes is up to AOCE and its members.

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