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 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.

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.

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.

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.

Arbitrator Requires City to Reinstate Fire and Police Pension Reversion Benefits

The City of Portland Fire and Police Retirement Fund had a rule which provided that when an alternate payee (such as an ex-spouse) died before the retiree, the alternate payee’s payments would revert to the retiree. The Board of the pension fund eliminated the reversion benefit, and the Portland Police Commanding Officers Association filed a grievance over the change, asserting that it violated the maintenance-of-benefits clause in the union contract. The City refused to arbitrate. Hank Kaplan filed an unfair labor practice charge to compel the City to arbitrate and then represented the union in the subsequent arbitration. The arbitrator ruled in favor of the union, and ordered the City to reinstate the benefit. The arbitrator held that pension benefits are a mandatory subject of bargaining and that the contract obligated the City to maintain the pension benefits in the contract, regardless of whether the pension fund paid for those benefits.

City Not Entitled to Recoup Overpaid Pension Benefits by Self-Help

After the City of Portland discovered a 15-year-old error in its pension payment calculations for public safety members of the Fire Police Disability and Retirement Fund, the City tried to get back overpayments totaling more than $3 million, by taking it directly out of Fire and Police Pension benefits, without giving members a chance to respond or raise defenses.  BHMK Attorney Hank Kaplan brought class action litigation challenging the City’s action, based on violations of Oregon’s wage deduction statute, 652.610.  The City denied the statute applied, and contended that its action was justified by IRS requirements to preserve the tax qualified status of the pension plan.  Multnomah County Circuit Judge Henry Breithaupt, a former tax attorney, rejected the City’s contentions and on July 26, 2012 ruled that the City violated the Oregon wage deduction statutes.

FLSA Action: Two Cases

Approximately 80 Paramedics, Dispatchers, and EMTs filed claims under the Fair Labor Standards Act for wages for training time required to maintain EMT certifications. Hank Kaplan represented the employee class, pursued the case in Federal Court and won a ruling that the employer was in violation of the FLSA and owed two years of back wages for training time.

In another case, Arson Investigators in the Fire Bureau sought overtime for hours worked in excess of standard work week for law enforcement officers, not fire suppression employees. Hank Kaplan brought action in federal court resulted in settlement requiring retroactive and prospective payments to these employees as law enforcement agents.

Disciplinary Suspension Ruled Excessive

A corrections deputy was arrested for driving under the influence of intoxicants near his home. The arrest was without incident, and resulted in a diversion agreement instead of a conviction. The employer imposed a long suspension as the “minimum” discipline available under its guidelines, and the deputy’s union grieved the discipline. Hank Kaplan, representing the union, established that the employer’s past practice was to impose a single-day minimum for similar offenses, and the arbitrator agreed. The discipline was changed to one day, and the deputy was made whole for the difference.