Employment Relations Board Orders TriMet to Arbitrate

Employer TriMet is the mass transit district for the greater metropolitan area around Portland. ATU Local 757, the Union that represents Employer’s mass transit operators, brought two grievances: (1) A grievance seeking to enforce a contract provision that would allow a terminated manager to return to a union position; and (2) A grievance seeking to challenge the assignment of bargaining unit work to local non-profits under a federal grant program administered by Employer, as a violation of a contract provision that required “lines of the District” to be staffed by Union members. The Employer contended that neither issue was arbitrable because the manager was not a bargaining unit member, and because the contract could not supersede the grant process used by TriMet to allocate federal funds for transit services. However, the Employer refused to submit either issue to an arbitrator.

The Administrative Law Judge for the Oregon Employment Relations Board held that both issues satisfied the standards for arbitrability. The Judge determined that in both cases, the Union was relying on contract language as the basis for its grievance, and that both grievances are not subject to the arbitration provisions of the collective bargaining agreement. The ALJ ordered the Employer to cease and desist from violating the grievance arbitration provisions of the collective bargaining provision, and to process both grievances. The Employer objected to the order, and the Employment Relations Board affirmed.

Arbitrator Orders Reinstatement of College Program Coordinator

An Oregon Community College with a very successful Medical Office Assistant training program moved the program out of one division into another because of a personal conflict between the Program Coordinator and the Dean of the Health Professions Division, who required the program to accept her husband as a candidate, but he then failed the program. For several years after, the program was moved around campus and twice “reviewed” by outside experts. One such expert issued a report recommending program revisions, without speaking to any of the faculty. Many of the proposed changes were ones long requested by the Program Coordinator who had fallen out of favor with the Dean.

As a result of the new report, the College decided to replace the Program Coordinator, without any corrective evaluation process. The College first claimed that the incumbent Coordinator was unable to implement the changes, but then changed its position and claimed that the change was needed because of promises made to local employers. It then moved the program back under the Dean of the Health Professions Division, and hired a replacement Coordinator. The union grieved the change, even though it did not affect the pay of the removed Coordinator, who was assigned other work.

After two days of hearing, the independent Arbitrator determined that (1) the College never offered a cogent explanation for the decision to replace the old Coordinator; (2) the old Coordinator was well-qualified to enact the recommended curriculum changes; (3) although the College stated at the hearing that the old Coordinator could apply for the new position, that argument was disingenuous; and therefore, (4) the College failed to act in good faith in deciding to replace the old Coordinator. The College failed to articulate a legitimate and reasonable institutional reason for the challenged action that comports with the facts. This arbitrary and capricious action is inconsistent with the language of the collective bargaining agreement, and therefore, the arbitrator held that the old Coordinator must be reinstated to her former position.

Arbitrator Rules that College Must Increase Pay to Accommodate Athletic Coach Workload Demands

Lane Community College (LCC) has a very successful Track and Field and Cross-Country programs, led by an experienced college coach. The programs have been quite successful and expanded in recent years, along with the coach’s responsibilities and workload.

The collective bargaining agreement between LCC and the Lane Community College Education Association contains a provision allowing for “interest arbitration” between the College and the Association whenever there is disagreement over compensation for workload that exceeds certain standards set for in the agreement, based on model workloads for four departments in the College. This differs from grievance arbitration in that the arbitrator does not interpret the language of the contract, but instead applies certain standards to set the maximum full-time workload for the instructors who complain of overload assignments.

In 2015, the Association asked for a review of the coach’s workload assignment; a panel recommended a small increase in compensation, but ignored much of the evidence. The Association challenged the workload findings of the panel, and sought interest arbitration. A labor arbitrator upheld the Association’s position, and awarded approximately 49 days of retroactive pay, and an additional 31 days per year going forward, based on current workload.

Arbitrator Rules that Educational Service District Violated the Contract by Failing to Treat Travel Time as Work Time

The Linn-Benton-Lincoln Education Service District provides services to 12 school districts across three counties. The majority of its certified employees are itinerant, providing services at various schools within the ESD. Most are headquartered in Albany. Travel time to school sites ranges from 15 minutes from headquarters to 2 hours away. Under past practice, travel time in excess of the employee’s regular commute (i.e., the time from home to “headquarters”) was considered work time. Employees could either adjust their schedule within week, or earn flex time for travel that occurred before 8:00 a.m. and/or after 4:00 p.m. In addition, the contract recognized that employees could “occasionally” be expected to work 30 minutes outside of their regular workday.

In September 2015, the ESD changed its policy regarding travel time. Under the new policy, the workday for employees working more than 30 miles from home base would be adjusted by 30 minutes in the morning and afternoon to reflect travel time, but any additional travel time would be treated as “commute” time – i.e., not compensable. In addition, the ESD announced that “occasionally” would be interpreted to mean four times per month.

The Association grieved these changes. The ESD claimed that its policy was consistent with the contract and, to the extent practices differed, it was because supervisors were unaware of how employees were calculating flex time. The ESD also argued that the Association failed to follow applicable procedures. Arbitrator David Stiteler rejected all of the ESD’s defenses. He found that under the plain meaning of the word, “occasional” means from “time-to-time,” i.e., neither a frequent nor regular occurrence. Therefore, the ESD violated the contract by expecting employees to work 30 minutes extra regular basis (four times per month).

Turning to travel time, the Arbitrator found that the clear and consistent practice had been to treat an employee’s travel time in excess of their regular commute time as work, and thus compensable. In addition, he found that the contract had not been interpreted to limit travel time for worksites closer than 30 miles away, if it actually took more than 30 minutes to get to the worksite, which was frequently the case. As a remedy, he ordered that the ESD to rescind its policy guidance and return to past practice. This was a complete victory for the Association. Employees had testified that they felt betrayed by the ESD’s actions and extremely burnt out. Moving forward, the ESD will need to honor its contractual commitment and not solve budget issues on the backs of its employees.

Arbitrator Rules that College Violated Contract Complaint Procedures

As part of his union duties, the Lane Community College Education Association (LCCEA) President sat on several College Councils, including the Diversity Council.  In 2013 and early 2014 the Diversity Council was working on a cultural diversity training program which proposed required training for all LCCEA Faculty.  The LCCEA president objected to the imposition of mandatory training without first bargaining over contract implications, and the discussion became heated.  Other procedural disputes ensued.  A complaint was filed against the LCCEA President by four students and faculty, alleging vague but far-reaching violations of College policies concerning discrimination and harassment.  The College issued a complaint, and then conducted a far-reaching investigation, by outside counsel, which Arbitrator William Reeves described as “to a large extent secret.”  The LCCEA filed two grievances over violations of the contract complaint procedures.  At the end of the investigation, no violations of College Policy were found, but the College rebuked the LCCEA President for his conduct in general, while refusing to reveal any details.

The Arbitrator found the College’s investigation violated both the contract and its own policies.  He found that the College violated disclosure requirements and investigation timelines, and found the College’s interpretation of the contract to be “nonsensical and inconsistent  with” the contract requirements.  He held the College failed to provide the LCCEA with specific evidence of the charges, and therefore the College “lost authority to sanction or reprimand the Grievant.”  He ordered the expungement from College records of all documents relating to the investigation except those needed to protect against future litigation, which shall not be accessed except by Court order.  He also directed the College to cease and desist from future violations of the complaint procedure.

Retired Fire Fighters Win Increased Pension Benefits

Portland Fire Fighters are covered by the Portland Fire & Police Disability & Retirement (FPDR) Fund.  The pension benefits of fire fighters who retired under an old FPDR pension system known as “FPDR One” were calculated based on current top step fire fighter base wages.  After the Portland Fire Fighters Association negotiated an “apparatus operator” premium in 2007 that applied to virtually all non-probationary fire fighters, one retiree asked that the apparatus operator premium pay be included in the calculation of his pension benefit.  The FPDR Fund refused.  Hank Kaplan filed two class action complaints on behalf of approximately 500 members of the FPDR One system.  The class action was denied, then appealed while an administrative hearing was held.  The administrative law judge decided the case in favor of the retirees, and ordered recalculation of the pension benefits. The County Circuit Court upheld the ruling of the administrative law judge. After six years of litigation appeals and a writ of mandamus, the City of Portland finally agreed to correct its method for calculating future FPDR One pension benefits, and also agreed to pay class members more than $2.2 million in retroactive benefits.

Teacher Order Reinstated with Back Pay

The District sought to dismiss a special education teacher for poor performance and neglect of duty.  Although she had always received excellent evaluations, the District placed her on a plan of assistance in December, based largely on concerns regarding her effectiveness managing two severely behaviorally challenged students during that school year.  Before the plan started, the District also transferred her and her program to a new building where she took over as the teacher for a behavioral classroom.  After less than three months in the new position, the District terminated the teacher for poor performance, neglect of duty and inefficiency.  A three person panel of the Fair Dismissal Appeals Board found that the District did not have grounds to dismiss the teacher.  Regarding the performance issues, the Panel found that the plan was neither well-conceived nor well-implemented.   The statement of deficiencies and expectations was too general to be useful.  The duration of the plan  was also too short, particularly given the lack of specific and timely feedback.  Finally, the Panel rejected the District’s claim that students’ behavioral issues could be blamed on the teacher.  With regard to neglect of duty, the Panel found the teacher credible and that any  proven misconduct would not support dismissal.  As a remedy, the Panel ordered the District to reinstate the teacher with full back pay.

Board finds School District Engaged in Unfair Labor Practice By Failing to Restore School Days and Compensation

When the Medford School District received additional funding from the State but did not use that funding to restore school days and compensation in accordance with a Memorandum of Agreement (MOA) it had entered into with the Medford Education Association, the Association filed an unfair labor practice complaint with the Employment Relations Board.  Aruna Masih represented the Association before the Board.  The Board determined that the District did violate the MOA and ORS 243.672(1)(g) by failing to restore school days and compensation under the MOA.  The Board ordered the District to cease and desist in its unfair labor practice and to bargain a make-whole remedy with the Association regarding the loss of days and compensation.  When the bargaining did not result in an agreement on remedy, the Board issued a Supplemental Order requiring the District to submit $345,067 (plus interest at nine percent per annum) to Association represented employees.

In Case of First Impression, Arbitrator Finds District Overreached in Labeling Teacher’s Inappropriate Statements as “Sexual Conduct”

A school district determined that a teacher had engaged in “sexual conduct” within the meaning of ORS 339.370 based on comments he made about the meaning of song lyrics to his 7th grade choir. Essentially, when asked, the educator told the girls that teenage boys are often insincere and just want to have sex.  The District acknowledged that the teacher had not engaged in any grooming or predatory behavior. Nonetheless, it characterized his comments as “sexual conduct” because they made students feels uncomfortable.   If this determination had been allowed to stand, the teacher would always have to report the “sexual conduct” finding to any education employer – a career ending label.

Margaret Olney challenged the determination on behalf of the teacher and the local Association.     In the first case interpreting the statute, the Arbitrator agreed with the Association that the District was overreaching and that the teacher had not engaged in “sexual conduct.” The Arbitrator explained that the label of “sexual conduct” is reserved for conduct consistent with “grooming behavior” and that there must be evidence that the offensive comments are “sufficiently pervasive or severe to create a hostile environment.”   Just making a student feel uncomfortable was not enough. In addition, given the seriousness of the allegation, the Arbitrator determined that the statute required a thorough investigation, which the District did not do.

Contract Settled, Strike Averted

Security officers unit under ILWU contract issued a 10-day strike notice during the 30-day cooling-off period following final offers. The employer filed unfair labor practice charges and a petition to declare the strike unlawful with the Employment Relations Board, and a petition for an injunction against the strike in the Multnomah County Circuit Court, providing less than one day notice to the Union. After a full evidentiary hearing on the request for an injunction, the Circuit Court denied the employer’s request for an injunction. Hank Kaplan acted as lead negotiator and lead counsel on the Circuit Court case. Following the denial of the injunction, the employer changed its bargaining stance and the contract was settled without a need for a strike.