EMPLOYMENT RELATION BOARD DECISIONS


ERB RULES THAT THE FAILURE TO PROVIDE INFORMATION IN RESPONSE TO A REQUEST FOR DETAILS CONCERNING WHY AN EMPLOYEE HAS BEEN ORDERED TO UNDERTAKE A PSYCHOLOGICAL FITNESS FOR DUTY EXAM IS AN UNFAIR LABOR PRACTICE

In the case of AFSCME Local 328 v. Oregon Health Science University, 18 PECBR 804 (2000), the ERB ruled that the employer’s refusal to provide information concerning why an employee was being ordered to undertake a psychological examination is an Unfair Labor Practice.

The employer’s defense was that the exam was a non-disciplinary action, and it did not have to nor should it disclose the reasons for the exam. The ERB ruled that it is the duty of the employer to provide objective information, but it is not required to disclose subjective information. Id. p. 811. However, in this case, the reason for the exam was allegedly because of the employee’s difficulty in communicating with the employee’s supervisors. The ERB concluded these were objective facts. The Collective Bargaining Agreement appropriately incorporated the provisions of the ADA, which required that any medical exam be based on objective beliefs. Id. p. 812

ERB ADMINISTRATIVE LAW JUDGE RULES THAT MARION COUNTY COMMITTED AN UNFAIR LABOR PRACTICE BY OBJECTING TO ASSOCIATION PROPOSALS

This particular case arose because the County declared numerous Association proposals permissive subjects of bargaining and then later refined the list of proposals that it declared permissive. Proposals for premium pay and proposals for personnel files, which included staleness of discipline after a certain time so it couldn’t be used again, were declared to be permissive.

The administrative law judge made a recommended order finding that the Association’s proposals were clearly mandatory subjects of bargaining and that the County’s declaring them permissive was an unfair labor practice. The ALJ also recommended an order showing that the County’s initially, in writing, declaring the proposals permissive and refusing to bargain over them further, was sufficient to give rise to the unfair labor practice and that the County could not attempt to later sidestep by withdrawing its objections weeks after the ULP was filed.

The County had also changed the shifts of clerical employees working at the jail and nurses on graveyard shift. The Association’s complaint alleged that that was a 1(e) violation as it was a change in the existing conditions during negotiations. The ALJ sidestepped that ruling by declaring the County had already bargained that issue in the contract.

Editorial Comment: The County’s antics in this case delayed the Association from proceeding to arbitration for a number of months. An appeal may well be taken over the ALJ’s conclusion that shift changes in violation of the contract during bargaining is not an Unfair Labor Practice.

ERB RULES THAT A BACKGROUND QUESTIONNAIRE TO BE UTILIZED FOR PROMOTIONAL PURPOSES CONSTITUTES A MANDATORY SUBJECT OF BARGAINING

The case of Oregon AFSCME Council 75 v. State of Oregon, Dept. of Public Safety Standards and Training, 19 PECBR 76 (2001) arose when DPSST decided to conduct background examinations of both new hires and employees when they competed for promotions. When DPSST imposed an extensive background questionnaire, AFSCME demanded to bargain over it and DPSST refused on the grounds that it concerned a promotion, a permissive subject of bargaining. However, the ERB held that:

“The protection of individual privacy is a cornerstone of American jurisprudence. This Board has long held that language concerning the personal life of employees is mandatory for bargaining and that it relates to an individual privacy and basic constitutional rights.” Pg. 93

The ERB then engaged in a balancing test because this was not a specified mandatory subject of bargaining. It concluded in this case that because DPSST was considering promoting employees to fill less sensitive public safety training positions that the background questionnaire must be bargained.

Editorial Comment: Amazingly, there was no dissent from the management representative on the Board.

ERB DISMISSES ULP OVER WHETHER A PROPOSAL IS PERMISSIVE BECAUSE THE UNION HAD LOST THE INTEREST ARBITRATION

In the case of City of Portland v. Portland Firefighters, the City filed a ULP against the union for bringing an alleged permissive subject of bargaining to interest arbitration. The ERB decided that because the Union lost, that the Board was not going to enter a decision on a moot subject of bargaining and dismissed the complaint. 19 PECBR 126 (2001).

Editorial Comment: The problem here is that many proposals get left on the floor due to the last best offer process. Many times when one side has claimed that a proposal is permissive, there will never be a definitive answer.



THE COURT OF APPEALS REVERSES EMPLOYMENT RELATIONS BOARD ORDER THAT JEFFERSON COUNTY HAD NO STANDING TO FILE AN UNFAIR LABOR PRACTICE FOR SECONDARY PICKETING AGAINST COMMISSIONERS’ PRIVATE BUSINESSES

This case arose out of the continuing saga of the strike of OPEU in Jefferson County. There were allegations during the strike that OPEU had picketed the personal businesses of three County Commissioners, handed out flyers, and carried signs on sidewalks and in parking lots. The ERB dismissed the complaint, indicating the County did not have standing to file the ULP as it was not an injured party. The Court of Appeals, reviewing the legislative history of SB 750 reversed. It concluded that the Legislature contemplated that an Unfair Labor Practice Complaint could be brought by an employer when their elected officials were subject to secondary picketing. The case was remanded to the ERB for a decision on the merits of the County’s claim and on the constitutionality of the statute.

COURT OF APPEALS AFFIRMS ERB ORDER ALLOWING TEMPORARY EMPLOYEES TO JOIN A BARGAINING UNIT OF STATE EMPLOYEES

The ERB had previously ruled that temporary employees could join a bargaining unit of State employees. The State appealed, arguing that definitions in State statutes excluded temporary employees from the collective bargaining laws.

The Court of Appeals ruled against the State’s legal argument and held that based on the record which showed that a high percentage of employees had started out as temporary employees, they had a community of interest with the rest of the bargaining unit.

In a separate decision, the Employment Relations Board ordered the temporary employees who had no right to strike, i.e., Correction Officers, to be placed in the large bargaining unit, which represented employees with right to interest arbitration.


EMPLOYMENT RELATIONS BOARD RULES THAT UNEMPLOYMENT BENEFITS WILL NOT BE AN OFFSET FOR A REINSTATED EMPLOYEE’S WAGES

This case went to the ERB because the State of Oregon terminated a correction employee when his labor organization was negotiating for an initial contract. The ERB ordered the employee to be reinstated to his employment minus pay earned while unemployed. At the time of the hearing, the State did not introduce any evidence as to whether the employee was receiving unemployment benefits.

However, the State deducted the unemployment benefits that it had paid the employee when it reinstated him. The plaintiffs had argued and the ALJ ruled that because the State had not put evidence of benefits in the record at the initial hearing, that it was precluded from raising the issue now. However, the ERB went beyond this and found that its previous case law was based on a statute requiring the repayment of unemployment benefits, and the statute had been repealed. The ERB reviewed previous Court of Appeals and Supreme Court cases and concluded that it should follow a Supreme Court case which held that Social Security benefits were not an appropriate offset in a breach of contract lawsuit. This reasoning of the Supreme Court was cited with approval by the ERB that only interim earnings could be reduced, and the fact that the employee had received a type of welfare benefits, in that case, Social Security, in this case, unemployment, would not be an offset because the public benefit program had nothing to do with the interim earnings of the defendant in a contract dispute.

The ERB found no public policy basis to order an offset and concluded that this was an issue that the legislature or the employment department could address but that the ERB would not. This produced a strong dissent from the management representative on the board and is likely to be appealed by the State at the Court of Appeals.

Editorial Comment: I started this case a number of years ago, simply wanting to get a terminated employee back pay without a reduction for unemployment benefits because an Assistant Attorney General failed to make a record. Now the case has taken on a life of its own, going far beyond this and will undoubtedly be in litigation for years.


AN ADMINISTRATIVE LAW JUDGE OF THE EMPLOYMENT RELATIONS BOARD RULES THAT MARION COUNTY BARGAINED IN BAD FAITH.

When the parties were attempting to negotiate the contract, the negotiator for Marion County sent a letter to the Association declaring that numerous sections of the contract contained permissive subjects of bargaining and indicated that by declaring these proposals permissive, “the County declares its intent not to bargain.” When the Association filed an Unfair Labor Practice Complaint over the County’s refusal to bargain, in an impressive performance of doublespeak, the County’s negotiator, Thomas Gunn, a former AFSCME business agent, denied that the County had ever refused to bargain.

The Administrative Law Judge made short work of the County’s doublespeak in finding that the County had committed an Unfair Labor Practice. Also at issue in this case was whether the Association could pursue an Unfair Labor Practice Complaint for the County’s unilateral change in the shift schedules during bargaining. The County had argued that the grievance procedure was all the Association should receive, and the Association argued that the County’s actions resulted in an Unfair Labor Practice complaint. The Administrative Law Judge ruled for the County on that issue.

The parties had appealed this case to the Board and argued it. However, the County insisted, as part of the settlement, that the Unfair Labor Practice complaint, and another one over the County’s refusal to process a grievance to arbitration, be dropped as part of the settlement. Reluctantly, the Association did so.

Editorial Comment: In summary, Marion County’s employees and its citizens are ill served by the incompetence that exists in Marion County’s Administration. The only reason there is any semblance of labor peace in the Sheriff’s office is because of the work of the Association’s leaders and the Sheriff’s command staff.


ERB RULES THAT LINCOLN CITY COMMITTED AN UNFAIR LABOR PRACTICE BY REVISING CERTAIN RULES WHICH AFFECTED MANDATORY SUBJECTS OF BARGAINING

In July and September of 1998, the newly arrived police chief in Lincoln City (the arrival of new police chiefs fresh from other states is a direct catalyst in numerous ULPs) changed a number of department policies including policies for off duty conduct, testifying as a violation of department policy, and leaving training. The Association demanded to bargain over these changes and the City refused to do so.

The ERB re-established its general rule that the continuing duty to bargain prohibits unilateral changes in existing conditions of employment that are mandatory subjects of bargaining. It noted that the employer must notify the representative of proposed changes and utilize the mid-contract bargaining process. The ERB then analyzed whether (1) first there was a change, (2) whether the change affected a mandatory subject of bargaining, and (3) whether there had been a waiver of the duty to bargain. In this particular case, the ERB determined that a number of the City's changes of policy did not violate the contract or were insignificant and dismissed those. However, the ERB did find that the City made significant changes to its policy on off-duty conduct, care and loss of equipment, and members leaving an outside training session and sustained the ULP on those grounds. The case may be read at 19 PECBR 323 (1999).

In a related case that came out of the City's previous actions in a consent decree between the parties, found at 19 PECBR 305 (1999), the City admitted that it committed an Unfair Labor Practice by discriminating against the officer who left training early by attempting to upgrade a counseling memo into an economic sanction after the officer filed a grievance over the counseling.

EMPLOYMENT RELATIONS BOARD DECISIONS

At the recent annual Public Sector Labor Law Conference, the Employment Relations Board members discussed their recent decisions in unit clarification cases. In the case of Association of Oregon Corrections Employees v. State of Oregon Department of Corrections and AFSCME, Case UC-24-99, the Board found that AOCE would not be able to expand its representation of employees by adding 14 employees to its bargaining unit which had the right to strike in the classifications of Nurse, Health Service Technician, Pharmacy Technician, Dental Assistant and Office Specialist, who work at Oregon State Correctional Institute.

The Board's finding was made in spite of the fact that AOCE is a mixed bargaining unit and represents all of those classifications of employees as well as the Corrections Officers series employees at the Oregon State Penitentiary (approximately 550 employees). The Association also represents the 160 Correction Officers series employees at OSCI. Notwithstanding the above, the Board expressed a preference for not expanding a mixed unit by adding right to strike employees to it, and therefore, denied the Association's petition which was based upon the request of the employees to switch bargaining units from AFSCME.

In the second case of significance, Lane County Peace Officers Association v. Lane County and AFSCME, 18 PECBR 400 (2000), the Board ruled that LCPOA could not add maintenance workers to its bargaining unit from the general AFSCME County-wide bargaining unit because there were other maintenance workers employed elsewhere in the County. The Board reiterated its position that it would not expand mixed units by adding employees to them.

Editorial note: At the conference, Board member Thomas, the management board representative, questioned why the previous board members had agreed to let mixed units exist in any event. She pointed out there was nothing in the statutes that give a legislative blessing to mixed bargaining units, which is bargaining units composed of employees that have the right to strike and the right to interest arbitration.

It is this writer's pessimistic assessment that there is an excellent chance that the Board will reverse its previous decision and prohibit mixed units. This could result in all existing bargaining units being separated and the employees with the "right to strike" being probably involuntarily placed in the general County or City bargaining unit. If the Democrats regain control of the Oregon Legislature, it is recommended that the OCPA push for a legislative blessing of mixed bargaining units.

EMPLOYMENT RELATIONS BOARD CRUSHES ASSOCIATION OF OREGON CORRECTIONS EMPLOYEES' ABILITY TO EXPAND ITS REPRESENTATION OF DEPARTMENT OF CORRECTION EMPLOYEES

The ERB decision which prohibited AOCE from expanding its representation by including 14 right to strike bargaining unit members was discussed in the last newsletter. Shortly after that decision, the Employment Relations Board issued two new decisions. The first was a ruling that AOCE could not represent the right to strike employees who worked at Columbia River Correctional Facility. Given the prior decision, that ruling was expected.
Fundamentally more troubling was the Employment Relations Board's decision that the State of Oregon's decision to recognize AFSCME as exclusive representative of the newly established Two River Correctional Facility in Umatilla was not an Unfair Labor Practice.

The Board found that because AFSCME represented most of the Corrections employees on a statewide basis, and that the employees who began to phase in TRCI were mostly transferred from the Pendleton area, that the State had a right to voluntarily recognize AFSCME.

Notably lacking in this decision was any discussion of the unrefuted evidence in this case that the State reversed an initial position of neutrality and recognized AFSCME because AFSCME would split these employees into two different bargaining units, one with the right to strike, and one with the right to interest arbitration.
In one footnote, the ERB indicated that if AOCE would get signature cards and file unit clarification petitions to represent the employees at TRCI, the ERB would consider the case. However, in a subsequent footnote, the ERB reindicated a preference for large wall-to-wall bargaining units, which would all but put the nail in AOCE's attempting to expand to represent a newly created prison facility.

Editorial comment: Big labor and the State teamed up to politically kill the AOCE in this case. While the statute gives priority to desires of employees to form labor organizations of their choice, this current Board has made it clear that it gives employee choice no deference and makes it virtually impossible for employees to leave large labor organizations once they have been placed in them.


ERB ADMINISTRATIVE LAW JUDGE RULES THAT THE STATE OF OREGON COMMITTED AN UNFAIR LABOR PRACTICE BY RECOGNIZING AFSCME AS THE EXCLUSIVE LABOR REPRESENTATIVE OF EMPLOYEES WHO HAD NOT EVEN BEEN HIRED AT A NEWLY CREATED STATE CORRECTIONAL INSTITUTE

 The case of AOCE v. State of Oregon and AFSCME Council 75, Case No. UP-23-98 involved the challenge of AOCE to the State’s recognition of AFSCME as the exclusive representative of correctional employees at the newly created Two Rivers Correctional Institute in Umatilla.

While the State had initially informed AFSCME and AOCE that it was going to be neutral as to who represents the employees in the newly created prison, the State reversed itself and recognized AFSCME as the exclusive representative based on an agreement that it had reached with AFSCME back in 1990 agreeing that when all new prisons came on line, they would be represented by AFSCME.  The trade off for that agreement was that AFSCME agreed to split its union in half with a union that “had the right to strike” and a separate union with the correctional series employees.  This was litigated and the State’s action was upheld by the ERB in 1991 over a challenge by OPEU and that decision was affirmed by the Oregon Court of Appeals.  See, OPEU v. State of Oregon Corrections Dept. and Executive Dept. and AFSCME, 115 Or App 593 (1992), 12 PECBR 876 (1991).  The basis for the ERB’s and Court’s opinions was  that the State had a good faith basis for its actions at the time because AFSCME was busily organizing the newly created prisons and OPEU had shown no indication that it was successfully doing so. 

In its petition, AOCE argued that its existence, which came into being in 1992, plus its expansion by representing employees at OSCI which had previously been represented by OPEU showed that the State could no longer blindly assume that employees in a newly created institution would prefer AFSCME over AOCE. 

However, in a recommended ruling, the ALJ went further than AOCE had urged the ERB to do, and based on NLRB case law and a new analysis of other ERB decisions, decided that the initial OPEU decision was wrong and in its recommend order, overturned it.  The ALJ concluded that the State should not be able to blindly assume, without any factual basis, that newly represented employees would choose one bargaining unit over another and that the State should sit back and wait for a labor organization to go through the statutory process of proving that it represented these employees.

The ALJ proposed as a remedy that the State had to cease and desist from recognizing AFSCME as the representative of the employees at TRCI unless AFSCME could present the State with an objective indication that it is the representative of a majority of employees by such means as showing of interest cards etc. 

It is my anticipation that at least AFSCME will appeal this recommended order and that a final ruling is months off.