Regular updates about recent developments in labor, employment and public pension law in Oregon.
Tuesday, November 27, 2012
Tuesday, August 14, 2012
Portland High School Teachers Awarded $1.5 Million for District's Unreasonable Increase in Teacher Workload
The arbitrator ordered the District to pay approximately $1.5 million to affected teachers as compensation for the increased workload. The arbitrator ruled that the District could return to the 5 of 7 schedule or, if it chose to stay at the 6 of 8 schedule, engage with the Association about how to devise a schedule that does not violate the contract. This means keeping teaching loads below 180 students!
Monday, August 13, 2012
Thursday, March 31, 2011
Friday, March 18, 2011
Wednesday, March 02, 2011
Wednesday, January 12, 2011
On appeal, the Court of Appeals held the occurrence test is triggered by a unilateral change in a mandatory condition instead of the refusal to bargain the change. Because the parties were in contract negotiations, the unilateral change was a per se violation of the duty to bargain in good faith which triggers the 180 day clock. On the discovery test, the Court did not determine whether the knowledge of members of the association could be imputed to the association itself. Instead, the Court found the association, exercising reasonable diligence, should have discovered a new work plan after the plan’s implementation. Therefore, the Court found the association’s complaint was not timely under either test.
Wednesday, January 05, 2011
Court of Appeals Gets It Wrong and Finds Loss of Right to Arbitration Not "Materially Adverse Action"
This case raises several difficult questions: Isn't the dissent correct, the denial of contractual right (arbitration) based upon the exercise of Title VII or 659A rights a retaliation in violation of Title VII or 659A? If so, what jurisdiction does ERB have to determine a Title VII or 659A violation? Shouldn't the ROP clause be challenged in Circuit Court, rather than attacking it under an arbitrarily standard through ERB? Does this now extend the reach of the Supreme Court's Penn Plaza decision to PECBA governed CBA's? Even without answering these questions, it is clear that Oregon public employee unions should review their contracts and make a decision as to the continued efficacy of this type of ROP clause.
Monday, December 13, 2010
Friday, December 10, 2010
ERB Reviews Confidential Employee Criteria - IBEW, Local Union No. 659 v. City of Canyonville, 23 PECBR 962 (2010).
(1) Does the employee provide assistance to a person who formulates, determines, and effectuates management policies in the area of collective bargaining?
(2) Does the assistance relate to collective bargaining negotiations and administration of a collective bargaining agreement, and
(3) Is it reasonably necessary for the employee to be designated as confidential to provide protection against the possibility of premature disclosure of management collective bargaining policies, proposals and strategies?
Because the small unit was newly formed, the ERB had to consider anticipated duties related to collective bargaining, rather than a prior history.
The ERB concluded that the Deputy city recorder was a confidential employee because she assists the City council and the City administrator, who will deal with management policies in the area of collective bargaining. She compiles and prepares confidential information for the council and takes minutes at meetings and executive sessions. The ERB determined however that the bookkeeper was not a confidential employee. While her position met the first two-parts of the test, the ERB invoked its policy of rejecting “undue proliferation of confidential employee status based on the convenience of the employer.” Thus, the ERB held that it was not reasonably necessary for two employees of the small unit to be designated as confidential.
The IBEW also sought clarification as to whether the bargaining unit included temporary employees but the ERB did not consider that issue because it determined it was an attempt to expand the unit, and therefore, not appropriate for review.
Christine Moore represents public employee unions in representation and unit clarification matters.
Wednesday, December 08, 2010
Notably, the Board did not address any possible violations of ORS 243.672(1)(e) or (f) after finding the parties did not argue violations these sections at hearing or in brief.
In his dissent, Chair Gamson argued the arbitrator’s award did not violate the Public Records Law because the statute only requires a government entity to preserve documentation of investigations of disciplinary matters as distinguished from the discipline itself. The award ordered the removal only of documentation of a discipline.
Tuesday, December 07, 2010
The ERB concluded that the officer was not a supervisory or managerial employee, and therefore, he was part of the bargaining unit. The officer did not have any supervisory authority as described in ORS 243.650(23), such as hiring, transferring, or suspending other employees. While he acted as the reserve program coordinator, the reserve consists of volunteers, not “other employees” under ORS 243.650(23).
The ERB also concluded that while the officer performed some limited, administrative work, he did not conduct substantial managerial duties. He had a sufficient continuity of interest with the other unit member in that they both had patrol and law enforcement duties. Therefore, it constituted an appropriate bargaining unit.
Christine Moore represents public employee unions in representation and unit clarification matters.
Wednesday, May 12, 2010
Thursday, April 22, 2010
Woodworkers Lodge 246 represents Weyerhaeuser Timber employees in the Springfield and Cottage Grove areas. Prior to 2000 these were two distinct timber areas and distinct crews of Company employees worked those areas. At that time, the Company proposed to consolidate the two areas into a single unit with the primary camp being located at the Springfield site. The union agreed, but specified there would be no change in the union members' rights to log the timber in the Cottage Grove area. Over the years, the Company ceased using its employees to log the Cottage Grove area and instead used contractors. However, the Company still met its contractual production obligations and thus there was no contract breach at the time. However, the contract also provided for simultaneous furlough of contractor and Company employees so that the Company could not use contractors in a timber area if Company employees were in a layoff status. In 2009, the Company furloughed Springfield employees but continued to work contractors in the Cottage Grove area. A grievance was filed. The Company responded that the Cottage Grove woods were no longer included in the Springfield area. Arbitrator Thomas Levak held that the although there had been no logging by Company employees in the Cottage Grove area for many years, the parties never bargained to change the original consolidation agreement. As a result, the Company violated the contract by laying off Company employees while continuing to work contractors in the Cottage Grove woods.
BHMK Attorney Tom Doyle represented the union in this successful arbitration.
Monday, April 19, 2010
Despite the fact that Oregon law allows for the use of medical marijuana, Oregon employers do not have to accommodate an employee’s use of medical marijuana. In Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries, an employer discharged a forklift operator because he used marijuana for a medical problem and the employee sued under Oregon’s disability and discrimination laws. The employee held a registry identification card under the Oregon Medical Marijuana Act. That Act allows a person to engage in the medical use of marijuana if a physician states that the person has a debilitating medical condition for which marijuana may mitigate the symptoms or effects of that condition. The Oregon Supreme Court decided that the federal Controlled Substance Law, which illegalizes the use of marijuana, preempts the Oregon law. Consequently, the Court stated that the employee was using illegal drugs and did not qualify for protection under Oregon’s disability and discrimination laws.
Tuesday, April 06, 2010
Friday, March 19, 2010
Thursday, February 11, 2010
Tuesday, November 24, 2009
Monday, June 08, 2009
Monday, December 01, 2008
Friday, September 26, 2008
Monday, August 04, 2008
Monday, July 28, 2008
The case was allowed to proceed to trial by Marion County Circuit Court Judge Claudia Burton, who, at summary judgment, found that the PERS Board owes a special duty of care to PERS members to protect them from economic loss by not supplying them false information or by not making a material misrepresentation to them. In this case, PERS had provided the PERS member, a school teacher and counselor, incorrect information on annual statements and estimates over a period of many years. The PERS member resigned her position and retired in reliance on that incorrect information. Only months after the PERS member retired did PERS ever reveal that the information it had provided her was inaccurate by over $1,100 per month. Of course, by this point, the PERS member’s former position had already been filled, and she had lost the seniority she had accrued.
The jury unanimously found that the teacher reasonably relied on the false information provided by PERS and that she suffered loss of salary and benefits as a result of giving up her job in reliance on the false information provided by PERS. The case will likely be appealed by the PERS Board which would give the Oregon appellate courts the opportunity to decide whether PERS does owe a special duty of care to PERS members to provide them accurate information for purposes of their financial planning.
Wednesday, June 18, 2008
This decision illustrates the fact that a teacher who agrees to be an administrator, as long as its over half of their work, loses the statutory protections of the FDAB statute. They only regain those protections following three more years of probation.
Tuesday, June 17, 2008
decision was subsequently reversed by the Oregon Supreme Court, the Employer attempted to Employee filed a complaint with the Bureau of Labor and Industries (BOLI) claiming that the Employer had engaged in unlawful employment practices. BOLI charged the employer with a violation of Oregon disability laws. The Employer asserted several affirmative defenses to the charges. Subsequently, the Oregon Court of Appeals decided a similar case. In Washburn v. Columbia Forest Products, the Court of Appeals held that a plaintiff (a medical marijuana user) was disabled despite the existence of alternative mitigating measures (to medical marijuana use) and that accommodation was necessary. Upon the release of the Washburn decision, Employer’s counsel did not produce any evidence in support of the affirmative defenses. However, after the Washburn decision, Employer reraised in its appeal the affirmative defenses. On appeal, the court rejected these defenses.
There are a few notable aspects to this case. First, it appears that BOLI is giving full effect to the Court of Appeals' Washburn decision as to accommodation of medical marijuana. That case was reversed on other grounds, and therefore the court of appeals decision stands on the un-reviewed aspects of the decision. Thus, employers must accommodate a disabled individuals medical marijuana use. While not permitting on the job use, the applicability of zero-tolerance policies to registered users is clearly in doubt. Second, the effective dismissal of this appeal on preservation issues underlines the importance of careful preservation of affirmative defenses in the administrative context.
Monday, June 02, 2008
In Gomez-Perez v. Potter, a postal clerk sued the United States postal Service for retaliation based on the fact that she had filed an age discrimination complaint against the employer. The employee asserted her claim under the Age Discrimination in Employment Act (ADEA). The ADEA creates a cause of action for employees of private employers to sue their employer for retaliation. The ADEA, however, does not expressly create such a right for federal employees. The Court relied on the rationale of prior decisions to decide that the text of the ADEA prohibiting ‘discrimination based on age’ includes retaliation. The Court reasoned that retaliation is a form of discrimination because the employee is being subjected to differential treatment based on the nature of the complaint.
In CBOCS v. Humphries, an African-American manager of a Cracker Barrel restaurant sued his employer for retaliation based on the fact that he had complained about discrimination against other African-American managers. The employee asserted his claim under Section 1981 (a federal statute passed during post-Civil War Reconstruction granting freedom of contract to African Americans). Similar to the ADEA, Section 1981 does not explicitly prohibit retaliation based on claims of discrimination. Again, the Court relied on the rationale of prior decisions and the similarity of Section 1981 to other statues to hold that Section 1981 includes a prohibition against retaliation.
The most certain impact of these two cases on employees is the allowance of retaliation claims for federal employees. Whereas private employees have always enjoyed retaliation claims for age discrimination under the ADEA, it is now certain that federal employees will have the same rights.
However, the less certain impact of these cases is whether the analysis of the Court, reading retaliation claims into language generally prohibiting discrimination, will be applicable to other statutes. If so, retaliation claims may be made available in all instances of prohibited discrimination unless it is expressly provided otherwise in the statute. This is important because retaliation claims are often easier to prove than discrimination for employees. For this reason, retaliation claims represent a large number of employment claims.
Further decisions and interpretation of these decisions will determine whether the scope of employees’ retaliation claims will expand. For the immediate future, these cases create an ADEA retaliation claim for federal employees and indicate the Court’s support of discrimination-related retaliation claims in general.
Thursday, May 29, 2008
BHMK is the only law firm in Oregon to have an entire practice group that specializes in representing individuals in licensing matters. The attorneys at BHMK have represented literally hundreds of nurses, teachers, paramedics, police officers, physicians assistants and other professionals who are licensed by the agencies of the States of Oregon and Washington. If you have received notice of a complaint or pending investigation, call us before you meet with the investigator.
Wednesday, May 28, 2008
This case is a cautionary tale. Frequently, the limits of a representative's authority are not clear. It is important that representatives have a clear understanding of what authority they have to bind the union. Once that is clear, then the best practice is for business agents or union leaders to explicitly notify the other side ahead of time if ratification of the "deal" will be necessary. Absent such a notification, there is a potential that the union will be held to the agreement, without the approval of the real decision makers.
Tuesday, May 27, 2008
The teachers' unions have won another battle in their attempt to ensure that Bill Sizemore abides by Oregon law. In 2003, as a result of litigation headed by BMHK on behalf of the Oregon Education Association, the Multnomah County Circuit Court entered an injunction against Bill Sizemore for his participation in racketeering, including funneling money through non-profit organizations for political purposes, thereby giving donors charitable deductions for their political donations in violation of the law.Despite the injunction, Sizemore continued to flout the law by creating another non-profit organization through which he funneled political money. He also solicited funds for a political action committee in direct violation of the injunction. The teachers' unions requested that the Court hold Sizemore in contempt of the law. On May 27, Judge Wilson recognized Sizemore's flagrant defiance of the injunction and ordered that he pay restitution totaling over $30,000 to the teachers' unions, as well as attorney fees to BHMK.