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.

Federal Court Finds School District Violated Teachers’ and Students’ First Amendment Rights

On the eve of a 2012 teacher strike, the Eagle Point School District adopted policies banning all signs and picketing activity on school property.  The Eagle Point Education Association promptly notified the District that the policies were unconstitutional but the District refused to modify them.  During the strike, the District strictly enforced its new policies to restrict pro-teacher speech by students and others.   The District defended its policies as part of its “educational mission.”  It also argued that school property was not a “not a public forum” and that striking educators had no legitimate reason to be on school property.

The Association filed a federal lawsuit challenging the District’s policies under both the U.S. and Oregon constitutions during the strike.  It pursued those claims after the strike settled.  In a sharply worded ground-breaking decision, Federal Magistrate Mark Clark ruled in the plaintiffs’ favor on each of its claims.  He found that the District’s policies were neither neutral nor necessary to protect the educational mission of the school: “The importance of educating and caring for students in the midst of such a crisis cannot be overstated.  However, it is precisely this mission that gives an even higher purpose to the protections and freedoms afforded by the Constitution.  In this case, what could have been an incredible opportunity for students to witness the function of the Bill of Rights in their very own lives and learn first-hand that the important principals of our government are not mere platitudes instead became a situation of reactionary, fear-based policies designed to suppress any opposition or unpopular viewpoint.”   He also found that the sign policy was unlawful as applied to student Staci Boyer, who was barred from parking in the school parking lot because of a pro-teacher sign in her car.

Magistrate Clark’s report was review by to U.S. Federal District Judge Michael McShane. Judge McShane affirmed the decision in all respects.

Arbitrator Finds Portland School District Violated High School Workload Contract Provisions

Attorney Margaret Olney has represented local associations throughout the state in efforts to protect their members from the constant pressure of being required to do more work for the same pay.   Most recently, she won a second arbitration for the Portland Association of Teachers (PAT) relating to high school workload. The first arbitration arose in 2011 when the District unilaterally adopted a new block schedule that required teachers to teach six instead of five classes and consequently, substantially more students. An arbitrator found that the new schedule violated workload protections in the contract. There were a number of disputes regarding remedy, but ultimately, the District was required to pay over $2 million to high school teachers as compensation for the excess workload.

During bargaining for the current contract, workload protection and workload relief were priorities for PAT.  Despite District demands for take backs regarding workload, PAT succeeded in maintaining key workload protections.  Unfortunately, within days of the contract settlement, the District announced that it would impose a new schedule at all high schools that added significant additional instructional time per week, and eliminated other time available to assist students.  The schedule was inconsistent with promises made in bargaining and, once again, PAT was forced to file a grievance and take the matter to arbitration.  The arbitrator agreed with PAT that workload under the new schedule was not generally comparable to that in place in 2010-2011 (the benchmark year) and ordered the District to return to the prior workload levels and to negotiate a remedy to compensate teachers for the increased workload.   Those discussions regarding remedy are still pending.

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.

Special Post: Challenges to Fair Share

It is no secret that many members of the United States Supreme Court are extremely hostile to unions. In Knox v. SEIU, 132 S. Ct. 2277 (2012), the Court held that the Union failed to follow the proper procedures when it increased its dues and fair share fees for political purposes related to several hotly contested ballot measures and other political activities. While the result was not entirely unexpected, the majority opinion went beyond what even the plaintiffs were asking for, holding that if a public sector union seeks to increase dues or levy a special assessment mid-year for any purpose, the union must provide non-members a separate notice and may not collect any funds from non-members without their affirmative consent. That is, for the first time, the Supreme Court held that the union must offer an opt-in system in order to protect non-member First Amendment rights.

While the court did not overrule prior precedent, the majority expressed extreme skepticism about the correctness of the “opt-out” approach, referring to it as an “anomaly” and a “remarkable boon for unions.” The opinion also includes scathing comments about the political activities of unions and how they are not to be trusted to properly audit and report such activities to non-members.

The same anti-union sentiment was evident in the Court’s recent decision in Harris v. Quinn, (June 30, 2014). In that case, the majority struck down a portion of an Illinois law that required all homecare workers represented by a union to pay their fair share of the cost of that representation. Similar to Oregon, Illinois law authorized homecare workers who are hired directly by clients but who are paid with state funds to organize and collectively bargain with the state to set basic terms of employment. The majority, in an opinion written by Justice Alito, found that because these employees are not “full-fledged” public employees, the fair share provisions in the collective bargaining agreement were unconstitutional.

Plaintiffs in that case urged the Court to expressly overrule Abood v.Detroit Bd. of Ed., 431 U.S. 209, 222 (1977), the lead case upholding “fair share” fees in the public sector, and unions expressed some relief that it declined to do so. However, the majority decision demonstrates a serious disdain for value of collective bargaining or precedent. As he did in Knox, Justice Alito took cheap shots at Abood and, without any convincing rationale other than he wanting to limit Abood, he found that Abood’s concerns with preventing free ridership and promoting labor peace were not sufficiently substantial for these “partial” public employees to justify any infringement on their constitutional right not to associate.

In a strongly worded dissent joined by four members of the Court, Justice Kagan emphasized that the doctrine of stare decisis would prevent overturning Abood given the lack of any new “special justification” and the existence of enormous reliance interests: “[T]he Abood rule is deeply entrenched, and is the foundation for not tens or hundreds, but thousands of contracts between unions and governments across the Nation.” Thus, “[o]ur precedent about precedent, fairly understood and applied, makes it impossible for this Court to reverse [Abood].” Justice Kagan also criticized the majority for failing to recognize that the State was the joint employer of the homecare workers where the State continued to have authority over workforce-wide conditions of employment, such as wages and insurance.

What does this mean for Oregon’s public sector unions?

In Oregon, anti-union forces have often taken aim at unions through the initiative process. BHMK has worked with our union clients and allies to ensure that these initiatives have accurate and informative ballot titles and that they fail at the ballot box. As a result, Oregon law still protects the right of public employee unions to require all bargaining unit members to share in the cost of representation the union is legally obligated to provide.

These decisions from the Supreme Court threaten those rights. Like Illinois, Oregon statutes authorize homecare and childcare workers to bargain collectively. Harris will now require unions representing those workers to change their practices with regard to fair share.

For other public employee unions, we need to understand that the current conservative majority on the Court appears prepared to overturn the “opt-out” approach for all fees and/or to seriously limit what is a “chargeable” expense for non-members. In the meantime, neither Harris nor Knox requires any changes in the union’s standard procedures for providing notice and an opportunity to “opt-out” for annual dues or fees. However, if the union determines it needs to increase dues and fees and/or to impose a special assessment mid-year for any purpose, the Knox requires the union to send out a fresh notice to non-members and only collect funds from those non-members who affirmatively opt-in.

If you have any questions about the implications of Harris v. Quinn or Knox v. SEIU, please do not hesitate to contact attorneys Aruna Masih or Margaret Olney.

Initiative and Ballot Title Challenges

As anyone involved in ballot measure campaigns can attest to, the wording of the ballot title for a prospective initiative can make the difference in whether proponents will even gather signatures and, if the measure qualifies for the ballot, the difference between winning and losing a campaign. For almost 20 years, Margaret Olney has worked with a variety of organizations and individuals to help ensure that ballot titles for prospective initiatives are fair and accurate. She has filed countless comments that have improved the ballot title, as well as dozens of successful challenges to the Oregon Supreme Court. Sometimes, she works on behalf of those supporting an initiative; other times for those opposing an initiative. While a large amount of her work has revolved around anti-union and anti-tax initiatives, Margaret has also represented a variety of other clients, including environmental groups, professional associations, Planned Parenthood and Basic Rights Oregon. At BHMK, she is joined by Aruna Masih and Tom Doyle, who also have many successful ballot title challenges to their credit.

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.

Oregon’s Domestic Partnership Law Successfully Defended

Margaret Olney successfully represented Intervenors Basic Rights Oregon in a lawsuit brought by a conservative religious foundation to qualify a referendum for the ballot that would have repealed Oregon’s domestic partnership law. We successfully defended the state’s signature verification process before the U.S. District Court and the Ninth Circuit, resulting in the domestic partnership law taking effect to the benefit of thousands of committed couples.

School District Ordered to Compensate Teachers for Increased Student Contact Time

This is a case dating back to 2007 in which the Association challenged the District’s unilateral decision to increase student contact time by approximately 30 minutes per day, when it adopted a new trimester schedule. The Association argued that the District was required to bargain over the decision; the District claimed that the increase in student contact time was merely an “impact” of its educational decision to change to the trimester schedule. The Association lost before the Employment Relations Board (ERB), but the Court of Appeals reversed and remanded the matter back to the Board for reconsideration. On remand, ERB found that the District had failed to bargain over the significant increase in student contact time. As a remedy, ERB required the District to pay teachers $1000 per year for each year they worked under the excess load. For many teachers, this would add up to over $5000 for the extra time they worked.   In addition, the District had to modify its schedule to reduce student contact time.

Proposed Termination of Special Education Teacher Reversed

The District sought to terminate a long-time and successful special education teacher for paperwork errors. The Association argued that termination was too severe a penalty for problems that were the natural consequence of severe underfunding. After Attorney Margaret Olney provided the District with information from other educators about the District’s inconsistent policies and the prevalence of similar problems throughout the District, the District agreed to reduce the discipline to a short suspension.