Oregon Labor and Employment Law

Sizemore PAC Lawsuit Dismissed

2011-03-31T09:57:00.000-07:00

After the 2008 election, Oregonians for Honest Elections, a Sizemore political action committee, filed suit against OEA, SEIU, AFT and several other union-affiliated organizations. OHE claimed that OEA et al violated the Oregon Corrupt Practices Act by publishing documents that stated Sizemore was a convicted racketeer. OHE argued that the statement was false and caused Measure 64 to be defeated at the ballot. BHMK attorneys Greg Hartman, Mike Morris, and Christine Moore represent the majority of defendants. Defendants filed a motion pursuant to ORS 31.150 to strike the claims against them, arguing that it was a meritless case aimed at chilling free speech. After extensive briefing, multiple court hearings, and two proceedings before the Oregon Supreme Court, on March 18, 2011, the trial court granted the motion and struck all claims against defendants.

Failure to Reinstate After Leave - Burden on Employer and Allowable Reasons Strictly Limited

2011-03-18T14:19:00.000-07:00

The Ninth Circuit has held that an employer that fails to reinstate bears burden to prove refusal justified. Moreover, an employer can only sustain that burden based upon the limited reasons provided under statute and rule. The court has remanded the case to the District Court to retry the family leave causes of action. Thomas Doyle represents the plaintiff in this matter.

No Just Cause for Discipline: Arbitrator Awards Reinstatement with Back-pay

2011-03-02T10:02:00.000-08:00

BHMK attorney Christine Moore represented a union member who was terminated from her employment as a School Office Specialist by the school district. Ms. Moore successfully arbitrated the grievance. The arbitrator found that the district failed to implement progressive discipline and did not have just cause to terminate the member’s employment. The arbitrator awarded reinstatement with back-pay, a major win for the member.

Change In Working Condition, Not Refusal to Bargain, Begins ULP Timeline

2011-01-12T15:17:00.000-08:00

The employer implemented and then fully executed a plan to redistribute work resulting in members from 2 different bargaining units doing the same work at different rates of pay. After the parties commenced negotiations on a new collective bargaining agreement, the association made a demand to bargain the change. The employer refused and the association filed a ULP. ERB dismissed the complaint finding the association failed to file within 180 days of occurrence. ERB refused to address the question of whether occurrence means the occurrence of the event or the discovery of the event by the union because ERB concluded the complaint was not timely under either test.
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.

Court of Appeals Gets It Wrong and Finds Loss of Right to Arbitration Not "Materially Adverse Action"

2011-01-05T11:22:00.000-08:00

In an unusual case against Portland State University, the Oregon Court of Appeals has allowed a collective bargaining agreement to waive grievance arbitration if the employee chooses to pursue administrative or civil action. In this case, PSU refused to process a discrimination grievance where the grievant had filed a complaint with the EEOC. PSU cited a Resort to Other Procedures (ROP) clause in the contract that permitted PSU to withdraw from the grievance process when the grievant filed a complaint with an administrative or judicial body. The association brought a (1)(g) complaint against PSU alleging failure to adhere to the grievance process language. ERB found the ROP clause unenforceable because it sanctioned discrimination against an employee who complained of discrimination. On appeal, the Court of Appeals found ERB had not applied the correct definition of “materially adverse action” because a reasonable employee would not be dissuaded from bringing a complaint merely because PSU withdrew from the grievance process. The Court’s analysis was premised on the recent Supreme Court opinion in 14 Penn Plaza in which the Court distinguished between statutory remedies for discrimination and contractual remedies for discrimination. Because the ROP clause affected only the grievant’s contractual remedies, the grievant’s statutory remedies remained unfettered. Therefore, the Court remanded the case to ERB to apply the proper definition of “materially adverse action” to the grievant’s statutory rights as defined by 14 Penn Plaza. The dissenting opinion argued Title VII forbids discrimination against any employee who has opposed discrimination in the workplace and the ROP discriminates against such an employee by removing a bargained-for right to seek redress under the union grievance procedure only from those employees who bring complaints in an administrative or judicial body.

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.

Health Care Reform Provision Invalidated

2010-12-13T13:37:00.000-08:00

In an widely expected decision, Virginia Federal District Court Judge Henry Hudson found the minimum essential coverage provision of the Affordable Care Act (ACA) unconstitutional. According to the court, Congress exceeded its authority to regulate commerce and to protect public welfare. In order to get this conclusion, the court had to rely upon cases issued in the 1930's during the waning attacks on the New Deal. Notably, the Judge did not enjoin the implementation of this Act since this provision does not go into effect until 2013. In addition, and perhaps more importantly, the judge's opinion does not extend to a vast majority of the ACA, including the employer and Exchange mandates. Ultimately, it is expected that this case will be considered with several other cases that our wending their way through the courts of appeals. Ultimately, the U.S. Supreme Court will be asked to resolve what are likely to be conflicting Circuits. A cautionary note -- in the three District Court opinions that have been issued in these challenges, the judge's have resolved these issues based upon political appointment. (Judge Hudson is a George W. Bush appointee.) The continuing conservative majority in the U.S. Supreme Court does not bode well for this portion of the ACA.

ERB Reviews Confidential Employee Criteria - IBEW, Local Union No. 659 v. City of Canyonville, 23 PECBR 962 (2010).

2010-12-10T14:43:00.000-08:00

The International Brotherhood of Electric Workers filed a unit clarification petition with the ERB, requesting that it determine whether a bookkeeper and a deputy city recorder were confidential employees and thereby excluded from the bargaining unit. ORS 243.650(19)(excluding confidential employees from PECBA and collective bargaining agreement). The ERB applies a three-part test for determining confidential employee status:
(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.

ERB Finds Public Records Law Trumps CBA Records Expungement Requirement

2010-12-08T14:42:00.000-08:00

IAF Local 890 filed a ULP after the Klamath County Fire District refused to implement an arbitrator’s award ordering the District to purge its files of a discipline in compliance with the CBA. The District argued it was prohibited from purging the files by the Public Records Law (ORS 392.410 – 505 and ORS 357.895). The case presented an apparent conflict between the Public Records Law and the PECBA. The Board held the District did not commit a ULP because, while the PECBA favors the use and implementation of arbitration awards, such awards may not be implemented if they are contrary to public law. The majority found ORS 357.895 prohibits the state’s archivist from granting permission to a government entity to destroy records before the proscribed timelines. The majority found the parties are prohibited from contracting around the District’s statutorily imposed requirement to maintain records. Therefore, the District did not violate ORS 243.672(1)(g).
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.

Follow Us On Twitter

2010-12-08T13:50:00.001-08:00

We are now posting our blog updates on Twitter. Simply follow @BHMKLaw on Twitter and you will get regular updates on labor and employment law developments both locally and nationally. We will also provide updates about recent developments on cases within the firm.

City of Portland Violates Existing Conditions Clause

2010-12-08T13:24:00.000-08:00

In late 2009, the Portland Police Chief attempted to change well-established policies related to flex time for Police Commanding Officers union. The City refused to negotiate the changes. Hank Kaplan, representing the union, brought a grievance against the employer for violation of past practice and existing conditions language in the union contract. The City asserted that the practice was not approved by the elected officials, and that a prior settlement had waived the union’s right to file a grievance. The Arbitrator ruled that the prior settlement did not waive a grievance, and then sustained the union’s grievance. The employer was ordered to rescind the change and reinstate the past practice.

ERB Reviews Supervisory Exclusion Two Member Card Check Unit

2010-12-07T14:47:00.000-08:00

The Laborers’ International Union of North America, Professional Law Enforcement Officers Assoc, Aurora sought to certify a bargaining unit without an election composed of two professional law enforcement officers. The City of Aurora requested exclusion of one of the officers because he allegedly performed substantial supervisory and managerial duties.
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.

PERS Board Reversed on Variable Account Administrative Expenses

2010-05-12T13:21:00.000-07:00

Today the Oregon Court of Appeals reversed the Oregon PERS Board on its decisions to charge the PERS Variable Account for administrative expenses in years of account loss. This will result in almost two-million dollars being returned to PERS members. This case arose in 2001 and 2002 when the PERS Variable Account suffered losses due to the equity market downturn. Normally, Variable Account administrative expenses are charged against Variable Account interest in the same way that the PERS Regular Account earnings are charged for Regular Account administrative expenses. However, when the Variable Account had no earnings in 2001 and 2002, PERS charged those expenses against its principle. This was different than what PERS agreed it was obligated to do for the Regular Account. For that account, in non-interest years, employers are charged for administrative expenses. PERS argued that the statutes allowed it to treat the Variable Account differently and charge against its "negative interest". The Court "readily" rejected this "negative interest" argument and held that the Variable Account was entitled to be treated on the same basis as the Regular Account when allocating administrative expenses.

Tom Doyle represented the Petitioner in the administrative hearing and on appeal.

Arbitrator Orders County to Make OPSRP Employer Supplemental Contributions

2010-04-22T10:33:00.000-07:00

Arbitrator Janet Gaunt has found in favor the Multnomah County Corrections Deputies Association on a retirement contribution grievance. At issue was whether the County was obligated to make a 6% supplemental contribution for employees hired under the Oregon PERS OSPRP plan. OSPRP is the new plan created by the 2003 legislature to replace PERS as the retirement plan for new hires. Under OSPRP, employers can voluntarily contribute between 1% and 6% percent of employee salary to an employee's Individual Account Program account. This additional employer contribution allows the employer to supplement the meager retirement benefits available to new hires under OSPRP. The County had agreed in 2004 to make this 6% contribution. However, in subsequent years it failed to do so. When a grievance was filed, it argued it never meant to agree to make that contribution and did not understand the contract language. Arbitrator Gaunt held that even if there was a unilateral mistake by the County, such a mistake is no defense. In the face of clear and unambiguous contract language, the County could not alter that language through arbitration.

BHMK Attorney Tom Doyle represented the union in the arbitration of this matter and BHMK attorney Hank Kaplan represented the union in the bargaining of this contract.

Arbitratrator Upholds Union Jurisdiction Grievance

2010-04-22T10:27:00.000-07:00

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.

Medical Marijuana Use Not Subject to Accommodation Requirement

2010-04-19T10:01:00.000-07:00

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.

New Law for Breastfeeding Mothers in the Workplace

2010-04-06T14:49:00.000-07:00

With the passage of the Federal Health Care Reform comes a major step forward for the rights of nursing mothers in the workplace. Thanks to the efforts of Oregon Senator Jeff Merkley and the United States Breastfeeding Committee, it is now Federal Law that employers provide nursing mothers an unpaid 30 minute break every four hours for expressing breast milk. In addition, the employer must provide a private location and it cannot be a bathroom stall. In effect, this is a nationalization of the Oregon law that went into effect over a year ago. However, it goes even further than the Oregon law. It applies to all employers and has a limited defense of undue hardship available only to small, i.e. less than 50 employee, employers. This law is notable also for its extension of the current Fair Labor Standards Act (FLSA) beyond overtime into mandating break time. This is a first. Until now, mandatory breaks had been the province of State laws. Although figuring out enforcement via the FLSA for denied breaks will present some growing pains for both DOL and private litigants, this law presents a significant step forward for working women throughout the country.

BHMK Tom Doyle advises on family medical leave and workplace wage and hour issues.

Oregon Supreme Court Reiterates IP 43 Holding

2010-03-19T11:10:00.000-07:00

In a comparatively long running Ballot Title case, the Oregon Supreme Court once again referred the Title for IP 43 back to the Attorney General for revision. This is the second decision on this proposed initiative petition. At issue in the prior decision and the subsequent objections was whether the Title accurately reflects the subject matter of IP43. IP 43 is an attack on recent attempts by the Oregon legislature to preserve the integrity of the signature gathering process for ballot measures. For instance, the legislature has implemented registration requirements for signature gatherers which prevent convicted forgers from collecting signatures. Under current law, signatures unlawfully collected by a convicted forger could not be included in the signature verification process. Under IP 43, the flood gates would be opened up to allow chief petitioners to use those unlawfully obtained signatures. The Court has now stated in two separate opinions that the voters must be informed of that aspect of IP 43.

Tom Doyle represented the party challenging the Attorney General's Certified Ballot Title. BHMK attorneys Aruna Masih and Tom Doyle have an active election law practice that includes Ballot Title comments, petitions for review, and procedural and substantive litigation.

ERB Certifies Part and Full-Time Community College Bargaining Unit

2010-02-11T16:22:00.000-08:00

The faculty at Klamath Community College will soon be bargaining for a contract that will provide them desperately needed stability and benefits. Klamath Community College Faculty Association petitioned the Employment Relations Board seeking certification of a bargaining unit composed of both full and part-time faculty. The College opposed inclusion of all part-time faculty. The Board issued an order in favor of the Association and designated the bargaining unit as the Association requested.

BHMK attorney Christine Moore represented the Klamath Community College Faculty Association

Management Rights Clause Does Not Allow Contract Violations

2009-11-24T09:52:00.000-08:00

Arbitrator Marvin Shurke ruled in favor of the ATU Local 757 recently on a case relating to the scope of a management right clause. The facts were as follows: After a change in management, the employer implemented a "no-fault" attendance policy which assigned points for absences and tardiness, (whether excused or unexcused), and which provided progressive discipline for various accumulations of points. The Union grieved the change. The employer asserted it had the right to set attendance policies under the very broad management rights section of the collective bargaining agreement.

Attorney Hank Kaplan represented the union, and argued that management has no fundamental right to make unilateral changes to the contract, and that the new policy affected union members' rights under several sections of the contract, including the just cause discipline and the union leave provisions of the contract.

The Arbitrator held that the new policy violated the contract. He ordered the employer to restore the status quo, to refrain from changes to the attendance policy for the duration of the contract, to rescind all imposed or threatened discipline under the new policy and restore lost pay, to write the union's chief steward a letter of apology, and to pay all of the Arbitrator's fees and expenses.

James v. Clackamas County

2009-06-08T08:08:00.000-07:00

Clackamas County Circuit Court Judge Eve Miller issued an opinion at a bench trial relating to retiree benefits. The case was brought on behalf of Neil James, a retired Clackamas County command officer. At the time of Mr. James' retirement, he had been promised continuation of retiree benefits at the same level and at no cost until age 65. The County lived up to that obligation for several years but then decided to curtail benefits and merge the fund with another fund for the peace officers. At the same time, the County began to require substantially increased contributions from the command officer retirees. This merged fund, began to grow substantially to the point that it now has an operating surplus of close to $1,000,000.00. Nonetheless, the County continued to curtail benefits despite its contractual obligation to the contrary. The court found that the initial reduction in benefits and requirement of payment of increased premiums was a breach of retirees' contracts since there were adequate funds available to pay for those benefits. Bennett Hartman attorney Thomas Doyle currently represents the Plaintiff in this action.

Ninth Circuit Retirement Benefits Victory

2009-06-08T07:53:00.000-07:00

The Ninth Circuit Court of Appeals issued an opinion this week in favor of retirees of Simpson Paper. Tom Doyle represented these retirees in claims for unpaid health benefit premiums. The facts were fairly simple. Simpson Paper agreed in a collective bargaining agreement to provide health care for early retirees until they turned age 65. After several years of providing this benefit, the company ceased all payments. According to the company, the retireees did not have a "vested" benefit because the agreement said the benefit could be changed "subject to negotiation with the union." Although the Company did not negotiate with the union, the Company argued that since the benefit could be changed, it was variable, and as a result it could not "vest" and was entirely unenforceable. The District court agreed. The panel of the Ninth Circuit initially affirmed the District court and held that not only was there no vested right to benefits, the lack of such a vested right prevented the Courts from even having jurisdiction over the case. In response, our firm petitioned for rehearing en banc, i.e. by the entire Court. In support of the Petition, several allied groups filed supporting "friend of the court" briefs - AARP and California Employment Lawyers Association. However, before the entire Ninth Circuit could consider the Petition, the panel itself requested additional briefing. Now, in a stunning reversal, the Panel of the Ninth Circuit has withdrawn its prior opinion and reversed its own prior opinion on this case. As a result the Court withdrew an opinion that had substantially limited Federal Court jurisdiction in ERISA cases. Under this new opinion, it is clear that union retirees have a right to assert claims in Federal Court regarding breaches of collectively bargained entitlement to health benefits. Moreover, this opinion remanded the matter to the District Court for a jury trial on the issue of whether the Company "negotiated" with the union prior to making the changes. This is a major win for unionized employees and retirees throughout much of the country.

Sizemore Jailed !!!

2008-12-01T13:48:00.000-08:00

Judge Janice Wilson found Bill Sizemore in contempt of court today and remanded him into the custody of the Multnomah County jail. The Oregon Education Association and the American Federation of Teachers filed the contempt action against Sizemore for violating the court's injunction in a RICO case. It was their contention that Mr. Sizemore established a sham charitable foundation, which received the majority of its “donations” from Loren Parks and a Dick Wendt organization.

Judge Wilson agreed. In a highly unusual move, the Judge read her forty-two page opinion from the bench for almost three hours. In part, she stated that Sizemore used the charity to fund his political activity and as a personal “piggy bank,” as well as to illicitly “facilitate fundraising because of tax deductibility and to permit his supporters to shield their personal support of Mr. Sizemore and his activities from public scrutiny.” She also extended the injunction for another five years.

Mr. Sizemore will remain in custody until he files full and complete tax reporting documents for 2006 and 2007 for his charitable foundation. BHMK Attorneys Greg Hartman, Christine Moore and Mike Morris represented the unions in this matter.

Americans with Disabilities Act Given New Life

2008-09-26T08:12:00.000-07:00

In a remarkable demonstration of the value of political action (i.e. a Democratic Congress), the Congress and President have enacted a revitalization of the Americans with Disabilities Act. These amendments reverse the all-out assault that has been waged by the Federal Court's on the ADA for a decade and a half. The highlights include:

1. Broadening the scope of what is considered a disability by lowering the level of impairment required;

2. Specifying that impairments in remission may still be considered disabilities;

3. Rejecting consideration of ameliorative measures in determining if someone has a disability;

4. Prohibiting discrimination based upon an actual or perceived "impairment," regardless as to whether that impairment would limit a major life activity.

This act specifically overrules two of the most damaging U.S. Supreme Court cases, Sutton v. United Airlines and Toyota Motor Manufacturing v. Williams. As a result, Federal protections for those with disabilities will be expanded.

Police Lieutenant Termination Overturned

2008-08-04T11:31:00.000-07:00

An 18-year veteran Portland Police Lieutenant was terminated after shooting a suspect driving a stolen vehicle, on the grounds of poor performance and violation of the Police Bureau’s policies regarding shooting at moving vehicles. The union grieved the termination sanction. Hank Kaplan represented the grievant in a week-long hearing attended by the City’s Mayor and the top police brass. The arbitrator accepted the Union’s arguments that the City had failed to prove a violation of its shooting policy; but sustained the poor performance finding. The termination was reduced to a 30-day suspension, the grievant was reinstated to his position as a police Lieutenant, and was awarded lost pay and benefits.

PERS Required to Live-Up to Estimate for Retirement Benefits

2008-07-28T10:12:00.000-07:00

On July 16, 2008, a Marion County Circuit Court jury unanimously found the PERS Board liable for over $200,000 in damages for negligent misrepresentations made to a PERS member in the case of Kay Bell v. Public Employees Retirement Board (Marion County Case No. 07C11097). BHMK attorney Aruna Masih represented the PERS member at trial.

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.

Teacher Who Serves as Part-Time Athletic Director Loses FDAB Protections

2008-06-18T08:43:00.000-07:00

The Oregon Court of Appeals today rejected an appeal by a terminated Athletic Director at the Riverdale School District. The decision in Edwards v. Riverdale School District appears to limit the rights of teachers who serve as Athletic Directors for public school districts. Apparently, Mr. Edwards served as a teacher for several years and then received a "promotion" to Athletic Director at 3/4 time. His remaining 1/4 of time was continuing as a teacher. Subsequently, he was terminated by the District. The District treated him as a probationary administrator because he had not served three years in that position. As a result, they summarily terminated him without the procedures that are required for non-probationary terminations under the Fair Dismissal Statute. Edwards took the position that he was not an administrator, therefore still a teacher, and protected by the Fair Dismissal statute as it applies to contract teachers -- which he had been prior to being "promoted." The Fair Dismissal Appeals Board (FDAB) agreed with Edwards. However, the Court of Appeals reversed and found that Athletic Directors are, in fact, administrators.

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.

Oregon Court of Appeals Affirms BOLI Mandate of Medical Marijuana Accomodation

2008-06-17T14:46:00.000-07:00

In the case of Emerald Steel Fabricators v. BOLI, the Oregon Court of Appeals affirmed the Oregon Bureau of Labor and Industries' requirement that employers accommodate medical marijuana use. Employee was a participant in the Oregon medical marijuana program who was hired as a temporary drill press operator. Employee did not tell his employer that he was a medical marijuana program participant upon being offered the temporary position because he was afraid that Employer would not hire him if they were aware of his marijuana use. Employer’s policy was to have employees work on a temporary basis for three months and then evaluate the employee as to whether they should be offered a permanent position. Employee never used the prescription marijuana while working and Employer never suspected that Employee was using drugs. Employee informed his supervisor that he was participating in the medical marijuana program when he planned to move his residence and needed to know if he was going to be given a permanent position with Employer. Employee’s supervisor spoke with the owner about hiring Employee and ultimately decided that they did not need to hire Employee on a permanent basis.

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.

Supreme Court Supports Retaliation Claims

2008-06-02T13:50:00.000-07:00

On May 27, 2008, the United States Supreme Court decided two important employment cases. Both cases presented the issue as to whether a statute prohibiting discrimination also encompasses a claim for retaliation without expressly stating so in the statute. The Court answered in the affirmative in both cases.

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.

Court of Appeals Allows Discovery in Licensing Cases

2008-05-29T11:05:00.000-07:00

The Oregon Court of Appeals reversed the Oregon State Board of Nursing (OSBN) in the case of Shank v. OSBN. BHMK Attorney Tom Doyle represented the nurse in the matter at hearing and on appeal. The basis for the reversal and remand back to the OSBN was that the it had unlawfully prohibited its own investigator from answering questions on cross-examination. these questions related to the Board's own investigation into the Nurse's alleged misconduct. Remarkably, during the hearing the Board took the position that it would not tell the Nurse who it spoke with as part of its investigation and what they said. According to the Board, the Nurse was entitled to no more information than any other member of the public, even though it was her license that was at stake. The Court of Appeals rejected this star-chamber version of due process. This case not only opens the door to a fairer process for nurses, but will apply to many professionals who are subject to the contested case process.

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.

ERB Finds Union Representative Had Apparent Authority

2008-05-28T10:28:00.000-07:00

The Oregon Employment Relations Board (ERB) issued a decision finding that the union committed an unfair labor practice by repudiating a side agreement that the union president had entered into. The union defended the case by arguing that the President did not have actual authority to enter into the agreement, but rather had to obtain the approval of the Union Executive Board. ERB agreed that there was no actual authority, but ruled against the Union in any case. The ERB found that, from the perspective of the management representatives, the President had apparent authority and therefore it was unlawful to repudiate the deal.

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.

Judge Finds Sizemore in Contempt

2008-05-27T14:03:00.000-07:00

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.

Arbitrator Finds that City of Portland Violated Maintenance-of-Standards Clause When It Tried to Change Criteria for Awarding Executive Leave

2008-01-23T21:26:00.000-08:00

An Arbitrator this week issued a decision against the City of Portland, and in favor of the Portland Police Commanding Officers Association (PPCOA). For many years, PPCOA members received an “executive leave” benefit as their only compensation for hundreds of hours of overtime required of all PPCOA members, who are not covered by the Fair Labor Standards Act. The City negotiated an increase in the executive leave benefit, but as soon as the contract was settled, the Mayor directed the Chief of Police to implement a new policy which raised the criteria needed to qualify for the benefit. The City claimed that the automatic award of executive leave was inconsistent with the contract standards. The PPCOA grieved the change, claiming that the new policy violated the maintenance-of-standards clause.
The Arbitrator ruled that the contract language was ambiguous, and that under the maintenance-of-standards clause the City could not unilaterally change the policy without the PPCOA’s consent. The City now must bargain over the change, and the contract is settled for the next four years. The City was ordered to restore the benefit to those who lost it because of the new policy. BHMK Attorney Hank Kaplan represented the PPCOA in this matter.

ERB Holds That Resignation Agreement Provision is Illegal and Unenforceable

2008-01-16T10:19:00.001-08:00

The Oregon Employment Relations Board held in AFSCME Council 75 v. Department of Corrections that an agreement not to "respond to unemployment inquiries" was illegal when it prevented disclosure of "material facts" by the employer to the employment department. ORS 657.300 prohibits employers from willfully failing to report a material fact regarding a claim. In this case, the claimant made a misrepresentation to the Employment Department and copied the employer. Despite the fact that it had agreed not to respond to Employment Department inquiries, the employer contacted the Department to correct the misrepresentation. The ERB held that despite its agreement to the contrary, the employer was required to make this disclosure and therefore there was no breach of the agreement.

9th Circuit Addresses Employer Business Necessity Defense

2008-01-04T10:19:00.000-08:00

The Ninth Circuit Court of Appeals reconsidered its prior ruling in Bates v. UPS, 04-17295. In its opinion enbanc, the court changed its analysis of an employer's use of the business necessity defense in Americans' With Disabilities Act (ADA) cases. Ultimately, it appears to have broadened the use of this defense by employers, but only slightly. In addition, the court clarified its analysis under the "qualified individual" element of the ADA. As a result, employers will now bear the burden to establish that an employee is not qualified because of safety or business necessity reasons. There had been some movement in the lower courts to boot strap that defense into the plaintiffs case-in-chief, which resulted in increasing the burden on Plaintiffs.

Limited Types of Arbitration Decisions Have Preclusive Effect

2007-09-07T13:43:00.000-07:00

The Oregon Court of Appeals decided on September 5, 2007 in Deanna Barackman v. Anthony Anderson that an arbitration decision determining liability for personal injury protection (PIP) in an automobile accident should have preclusive effect in a subsequent personal injury lawsuit. The question for the court was whether the differences between the arbitration proceeding and a regular trial were so great that it would be unfair to accord the arbitration decision preclusive effect. The court held it sufficient protection when the plaintiff was permitted to cross-examine witnesses, she was represented by counsel, and the impartiality of the arbitration panel was not disputed. As a result, the appeals court precluded the plaintiff from relitigating the arbitrated issues.

Oregon Supreme Court Allows for Appeal of Trial Court Decision Before Class Certification

2007-08-27T09:50:00.000-07:00

The Oregon Supreme Court issued an opinion in Richard Joarnt v. Autozone, Inc., on August 16, 2007 overruling the Oregon Court of Appeals and holding that a party who files a class action under in state court may file an interlocutory appeal under ORS 19.224 before a class has been certified. Plaintiffs filed a wage claim against their employer and identified their proceeding as a class action. Before the trial court decided the class certification issue, the court granted the defendant’s motion for judgment on the pleadings regarding the wage claim for rest periods and meal time. The trial court granted immediate appeal under ORS 19.225. The Court of Appeals determined that the underlying proceeding was a not a class action because the trial court had not certified the proceeding as a class action. Therefore, the order could not be appealed under ORS 19.225. The Oregon Supreme Court overruled the Court of Appeals, determining that under ORCP 32 the entire proceeding is a class action, even before any decision on the certification question.

Bennett Hartman has an active practice in class actions on behalf of unpaid and underpaid workers.

Washington Court of Appeals Affirms Decision in Favor of Teachers

2007-08-23T12:04:00.001-07:00

The Washington Court of Appeals denied the State of Washington's motion to reconsider the Court's prior decision finding that State School's teachers have been underpaid for years. This case is a class-action filed on behalf of all current and former teachers at the Washington State Schools for the Deaf and the Blind in Vancouver. At issue is a state law requiring that these teachers be paid a salary equivalent to that paid to Vancouver School District teachers. The State had argued that "salary" did not include supplemental contracts provided by the Vancouver District under the state "TRI" statute. According to the State, since that money should not be considered "salary," it did not need to be matched by the State for its teachers at the State Schools. The Court rejected this argument as being contrary to the clear text of the statute, as well as common sense. In its motion for reconsideration, the State argued that the court had misstated a date of the enactment of one of the applicable statutes and that this different date should change the outcome of the case. This argument was rejected by the Court. If this decision stands, it may result in a multi-million dollar back pay award for these teachers. Bennett Hartman attorney Thomas Doyle is class counsel on this case.

ERB Administrative Law Judge Finds Multnomah County Committed Unfair Labor Practice

2007-06-30T11:56:00.000-07:00

An administrative law judge for the Oregon Employment Relations Board (ERB) this week issued a decision against Multnomah County. The County had been charged with committing numerous unfair labor practice’s as part of its transfer of the Close Street supervised release program from the Multnomah County Corrections Deputies Association (MCCDA) bargaining unit. That program is widely recognized as a model for post-release intensive supervision of inmates. The judge found that the County failed to notify the union of the change, failed to bargain over the decision and impact, and failed to provide information to the union. As a result, the County may owe over a million dollars in lost overtime to the bargaining unit as a whole and will have to return the program to the bargaining unit. The County has filed objections to this recommended order and it will be heard by the entire Board this fall. BHMK Attorney Thomas Doyle represents the Association in this matter.

Oregon Teachers Win Big at Oregon Supreme Court

2007-02-20T15:54:00.000-08:00

In a sweeping decision, the Oregon Supreme Court drastically limited the authority of the Oregon Teachers Standards Practices Commission (TSPC) to punish off-duty misconduct, which is unrelated to teaching. This case arose out of an off-duty attempted suicide attempt by a respected schoolteacher. The suicide attempt was away from school during a holiday break. The teacher was the only injured party. In response the District ultimately terminated her. TSPC attempted to suspend her license based upon the suicide attempt. The ALJ who heard the case held that she had not committed gross neglect of duty and gross unfitness. However, the Commission reversed its own judge and found that this off-duty misconduct merited suspension.

The basis for its holding that the teacher neglected her "duty" was that TSPC defined "duty" to require acting lawfully "at all times." The Oregon Supreme Court held that professional duties must relate to the profession, and could not be so broad to include being a good citizen or broad moral duties.

The second basis for discipline was alleged "gross unfitness." TSPC did not argue that the teacher was unfit at the time of the hearing. Instead, it held that the off-duty misconduct rendered her unfit at the time the misconduct occurred. The Court reversed and held that a teacher could only be found "unfit" when the teacher is rendered unfit by severe conduct which irreparably impairs their ability to teach permanently or semi-permanently. The court used the example of shooting a principal.

As a result of this case, TSPC will only be able to discipline teachers for off-duty misconduct when there is a clear effect on their ability to teach. This reverses a longstanding trend by this Agency to discipline every instance of off-duty misconduct, regardless of any connection to teaching. This is a substantial victory for teachers throughout the State. BHMK Partner Thomas Doyle represented the teacher on behalf of the Oregon Education Association.

Court Restricts Whistle Blowing Protections for Oregon Workers

2006-12-08T16:34:00.000-08:00

The Oregon Court of Appeals has restricted the scope of the important public duty exception to at-will employment in the whistle blower context. The facts were as follows: Ms. Love, the plaintiff, noticed what she considered inadequate training policies. She was unaware of any legal requirement regarding the training but nonetheless, complained about the inadequate policies. Meanwhile, a training accident occurred, involving a death. A federal investigation was being prepared. Plaintiff believed that her superiors were planning to tell federal authorities that certain safety policies had been in place, when in fact they had not been. Plaintiff objected to this possible cover-up and was discharged the very day the investigators were to arrive. Plaintiff sued for common law wrongful discharge. The trial court granted summary judgment in favor of the employer. In reversing, the Court of Appeals held that summary judgment was proper with regard to the allegation of retaliation for complaints about inadequate safety policies, because there was no evidence Plaintiff was aware of any legal basis for her complaints. But summary judgment was not proper with regard to Plaintiff's allegation of retaliation for objecting to the cover-up because a cover-up is contrary to important societal interests, without reference to specific laws being violated.

Thus, plaintiff was never aware of any legal requirements pertaining to training, therefore her complaints about inadequate training were not objectively reasonable, and so she was not fulfilling an important public duty. In contrast, objecting to the illegal cover-up would fulfill an important public duty, and was thus protected from retaliation by the wrongful discharge action. Bottom line: Whistle blowing is an important public duty protected by a wrongful discharge action only if the whistle blower has both a good faith and objectively reasonable basis for blowing the whistle. This represents a retreat from McQuary v. Bel Air Convalescent Home, Inc., 69 Or App 107, 684 P2d 21, rev den, 298 Or 37 (1984).

Oregon Supreme Court Vacates "Lipscomb" Decision

2006-06-30T10:42:00.000-07:00

On June 30, 2006, the Oregon Supreme Court granted Intervenor employees' request to vacate the January 13, 2003 judgment issued by the Marion County Circuit Court in favor of employers in the City of Eugene case, popularly known as the "Lipscomb" decision. As a result, under the Supreme Court's ruling, employers and PERS can no longer rely upon the Lipscomb decision in support of any action. The Lipscomb decision had formed the basis for many of the draconian changes made to the PERS system over the past three years. The effects of the vacature are potentially far reaching. Intervenor employees in this case were represented by BHMK, through the PERS Coalition.

Increase in Hours for Same Pay Is Not a "Reduction in Pay"

2006-05-11T09:47:00.000-07:00

The Oregon Court of Appeals affirmed today a decision of the Fair Dismissal Appeals Board ("FDAB") in a case brought by a school district administrator. The District had increased the administrators number of hours, but had not increased his pay. In response, the administrator challenged the workload increase as a de facto "reduction in pay" under the Fair Dismissal Appeals Statute (which protects Oregon public school teachers and administrators from certain adverse job actions). The FDAB and the Court both held that even though effectively the employee was working for less money for each hour actually worked, that this was not a "reduction in pay" under the FDAB statute.

Oregon Supreme Court Finds Employee Has No Protection for Treatment of His Medical Condition Because . . . He Can Treat His Medical Condition?

2006-05-09T11:20:00.000-07:00

In an astounding exercise of legal logic, the Oregon Supreme Court held that a medical condition that can be treated is not protected under the Oregon Disabilities Act. (Washburn v. Columbia Forest Products.) What makes this opinion all the more disheartening for anyone concerned about the rights of disabled employees is that it brings Oregon law closer to Federal Law. As a result, in order to have protections under either law, you have to be presently impaired in a major life activity. Employers now argue under federal law, and will now do so under state law, that even though someone has a medical condition, such as diabetes, if that condition is treatable such that the person is symptom free, she can be fired specifically because she is a diabetic. In short, under their version of the law, you lose protections to the extent you treat your medical condition. It is amazing how a bunch of lawyers can turn on its head a law meant to protect disabled employees.

As a side note, this is also a medical marijuana case. However, the court appears to have dodged the fundamental question posed: i.e. is it a reasonable accommodation for an employee to be allowed use of medical marijuana, off-duty, even if it results in a violation of the employer's drug policy? The Court of Appeals had ruled that an employer could not terminate the employee for a failed urinalysis drug test (a result of use of medical marijuana) because allowing off-duty use of the medication was an accommodation for treatment of the disability. Because of the Supreme Court's resolution of the case on the disability issue, i.e. there was no disability, this holding of the Court of Appeals appears to still be the law in Oregon.

Bennett Hartman is a Portland Oregon law firm which specializes in representing employees against their current and former employers. For more information, please see the Bennett Hartman website.

Window Retiree Class Action Filed

2006-01-19T15:09:00.000-08:00

On January 17, 2006, BHMK filed a class action complaint in Multnomah County Circuit Court on behalf of Tier One PERS members who retired between April 1, 2000 and April 1, 2004 , referred to as the window period. The class action complaint alleges that the withholding of COLA for the years 2003 to 2006 from these Tier One PERS members, constitutes a breach of their PERS contract and a violation of the Oregon wage and hour laws, in light of the Oregon Supreme Court's decision in Strunk v. PERB, 338 Or 145, 108 P3d 1058 (2005). In addition, the complaint alleges that the PERS Board's intent to pursue collection actions against such retirees for alleged overpayment of 1999 earnings would also constitute a breach of their PERS contract, would be without probable cause, and would cause irreparable harm. It is anticipated that this case can be resolved by summary judgment which will allow PERS members to ask the trial judge to halt the process which PERS has commenced to collect any alleged overpayments.

PERS Class Action to be Filed by Month's End

2006-01-06T08:24:00.000-08:00

In mid-January, a class action complaint will be filed on behalf of PERS retirees who retired between April 1, 2000 and April 1, 2004. The class action complaint alleges that in light of the Oregon Supreme Court's decision in Strunk v. PERB, 338 Or 145, 108 P3d 1058 (2005), the PERS Board's withholding of COLA for the years 2003 to 2006 from these Tier One PERS members, constitutes a breach of retirees' PERS contracts and a violation of the Oregon wage and hour laws. In addition, the PERS Board's pursuit of collection actions against these PERS retirees for the alleged overpayment of 1999 earnings also constitutes a breach of contract, is without probable cause, and is subject to estoppel and injunctive relief. The complaint seeks plaintiff class certification for all such retirees and requests monetary damages, attorney fees, and costs. The complaint also seeks defendant class certification of all employer participants in PERS. At this time, the required 30 days notices of intent to file the class action complaint have been served on all named defendant PERS employers.

Court of Appeals Reverses ERB on SEIU Home Health Care Case

2005-11-09T16:13:00.000-08:00

Today the Oregon Court of Appeals issued a decision overturning the Oregon Employment Relations Board's finding that the Oregon Home Care Comission (HCC) had committed an unfair labor practice. The ERB had found that the HCC, by and through the Department of Human Services, told employees pay would be affected because of "unionization." Under Oregon law, it is an unfair labor practice for an employer, or an employer's designated representative, to interfere with, restrain or coerce employees in or because of the exercise of their union rights. This statement was found to be interference because of union activity. The Court, on the other hand, found that even though DHS "administers a program . . . through which it authorizes payments to home care workers" employed by the Commission, DHS was not a designated representative. Because there was no dispute the DHS was not the employer, the Court found that DHS could not have committed an unfair labor practice under ORS 243.672(1)(a). The crux of the decision is that a third party, even one who is acting in concert with an employer, is not liable for unfair labor practices unless that third party is a "designated representative."

ERB Declares Oregon Trail Strike Lawful

2005-11-08T09:38:00.000-08:00

The Employment Relations Board issued a decision today dismissing the Oregon Trail School District's petition to declare the current strike unlawful. The crux of the District's petition had been that the Association struck based upon permissive subjects. As support for that argument, the District pointed to two major facts: a recognition clause proposal that had been withdrawn by the Association prior to the strike and newspaper articles indicating that the reason for the strike was a failure to agree on teacher evaluation and prep-time. The ERB rejected both arguments. First, it held that where a party promptly withdraws a permissive proposal after objection from the other side and there is no evidence that the proposal was a cause of the strike, it does not render the strike unlawful. Second, it held that where there are no permissive proposals in the final offer or in the strike notice, newspaper reports of other permissive subjects being the "real" basis for the strike are not probative of strike unlawfulness. In sum, the ERB correctly rejected this petition for what it was: a last ditch attempt by the District to avoid having to bargain with its employees based upon ill conceived legal theories.

Oregon Employment Relations Board Clarifies Standard For Duty to Provide Information

2005-10-31T16:35:00.000-08:00

Under the Public Employee Collective Bargaining Act (PECBA) a public employer has a duty to provide information to a union, when that information is to assist the union in bargaining or enforcing the bargaining agreement. In AFSCME Local 3581 v. State of Oregon, Real Estate Agency, the Board reaffirmed that there need not be a pending grievance for that obligation to arise. Rather, as long as the request clearly indicates that the information is of probable or potential relevance to a grievance, then a union need "not need to identify a specific action upon which a grievance would be filed nor a specific set of facts which, in the view of the [employer], would support the Union's request for information." Thus, this case makes clear that employers who resist requests based upon the lack of a pending grievance or what they regard as an acceptable rationale for a grievance, do so at their peril.

BHMK Files Motion Requesting Vacature of Lipscomb Decision

2005-08-29T08:37:00.000-07:00

In follow-up to the Oregon Supreme Court's dismissal of their appeal of the Lipscomb decision, intervenors represented by BHMK have requested that the court clarify the effect of its ruling. Specifically, under long standing Oregon and Federal precedent, where a circuit court judgment is declared moot, it is then vacated to prevent it from having any precedential effect. If the court were to order vacature, the Lipscomb decision could no longer be relied upon by the PERS Board as a basis for its adjustments to 1999 earnings distributions.

Lipscomb Decision Issued: Appeal is Moot

2005-08-11T16:21:00.000-07:00

The Oregon Supreme Court issued its decision in the City of Eugene case today. The court dismissed the various appeals of Judge Paul Lipscomb's Marion County Circuit Court decision as moot based primarily on the settlement agreement entered into between PERB and the local public employers. Intervenor public employees (represented by BHMK) were not party to that settlement agreement. As a result, the issues raised by the employees in the appeal were not ruled upon and will now have to be dealt with in the White case, which is currently pending in the Multnomah County Circuit Court. Despite statements in several local papers to the contrary, the Supreme Court did not affirm Judge Lipscomb's decision and did not hold that retirees or current members were required to pay back PERS. These issues were part of the settlement agreement between PERB and the employers and will be addressed in the White litigation or other lawsuits that may be filed in the near future. Those actions will be posted on the Bennett Hartman website as they are filed.

9th Circuit Affirms Dismissal Of DFR Suit Against AWPPW - "Last Chance Means Last Chance"

2005-08-09T11:24:00.000-07:00

The 9th Circuit has affirmed Magistrate Judge Donald Ashmankasas' dismissal of a duty of fair representation lawsuit against the Association of Western Pulp and Paper Workers. In that suit, a former member sued the union because it refused to appeal his termination. That member was on, not one, but two last chance agreements (LCA's) with the company. Under those LCA's, he agreed that he would face discipline, including termination, if he violated plant rules and would waive all defenses. He was then fired after two co-workers alleged that he attempted to run them over with a large piece of heavy equipment. The AWPPW local executive board met and concluded that based upon the facts alleged, the corroboration of at least two employees, and the last chance agreements, that it would not appeal the termination. The member then sued, arguing that last chance really did not mean last chance and that the union should have appealed what they regarded as an unwinnable case. The District Court and the 9th Circuit disagreed and reaffirmed that a union that reviews a grievance and determines that it has a low chance of success is well within its rights to refuse to arbitrate that grievance. BHMK Attorney Tom Doyle litigated this case at both the District Court and Appellate levels.

BHMK Attorneys Score Hat-trick in Three Consecutive Arbitration Wins!

2005-07-01T13:41:00.000-07:00

So far this summer, BHMK attorneys have racked up three arbitration wins.

First, Hank Kaplan successfully arbitrated a grievance challenging the demotion of a police lieutant. The grievant was demoted from lieutenant to sergeant based on an allegation of poor performance during an investigation. This was an investigation of off-duty officers who were said to have assaulted a citizen in a fight outside a bar. The lieutenant, a recent transferee to the bureau, had requested training in bureau procedures for supervisors. The request was ignored. On the night in question, the investigation had been led by sergeants under the grievant's supervision. Grievant was not given all the pertinent information, and therefore failed to insist on adequate documentation. A more senior lieutenant then took the lead in the investigation, and grievant's subsequent involvement was limited to reviewing his peer's memorandum. After the police review commission received a citizen complaint, the investigation was re-opened. The involved officers were terminated, the investigating sergeants received suspensions, and both lieutenants were demoted. The arbitrator determined that under the circumstances, demotion was too harsh a penalty. The penalty was reduced to a 30-day suspension, and the grievant was reinstated with back pay.

Second, Tom Doyle won an arbitration challenging a community college's refusal to recognize a faculty member's PhD. The college refused to recognize the faculty member's PhD because new language in the collective bargaining agreement required that degrees be approved by a specific outside organization that determines the equivalency of foreign degrees. This degree was not approved by that organization. However, the college had already approved the degree under a prior version of the collective bargaining agreement. The arbitrator held that the college was estopped from denying recognition of that degree, even where the contract language had changed, when it had given its approval in the past.

Finally, Heidi Brown won an arbitration challenging a community college's workload policy for the two departments. The arbitrator found the workload was excessive for the Nursing department. Students in the Nursing department are required to perform clinical work at local hospitals two days per week. The faculty teaching clinical were given credit at the rate of .682 towards their workload requirements for every credit hour of work in clinical, consistent with the credit given for laboratories. The Nursing department requested an increase to .841, arguing under the collective bargaining agreement, that their workload was excessive compared to other faculty at the college. The college unsuccessfully attempted to argue that the workload for clinical was comparable to other laboratories, and that it should therefore remain the same. The arbitrator found the workload for the Nursing department's clinical time was excessive, and increased the credit given to .841.

Please contact our office for more information about any of these labor arbitration wins.

Motion for Reconsideration Filed Regarding Strunk Dicta

2005-03-21T12:12:00.000-08:00

Greg Hartman filed today a Motion for the Oregon Supreme Court to withdraw dicta in its March 8 Strunk decision relating to excess earnings. As reported by the March 21 Oregon AFSCME E-Lert:

"[T]his is not a motion for the Supreme Court to reconsider the entire case - that will not happen. Rather, it is a technical legal move requesting the court to reconsider (and in fact remove) what are essentially some "editorial comments" from the final Strunk decision document.

Hartman explains that the text of the majority opinion in Strunk contained language in which, after a very brief discussion, the justices concluded that PERS members had no protectable contract right to excess earnings over and above the 8 percent guarantee.

"This was somewhat curious," says Hartman, "since the issue of excess earnings was not before the court and was not briefed or argued by any of the parties. In fact, the judge who presided over the court's findings of fact indicated in his findings that this issue was specifically outside the scope of the issues that the parties were litigating."

Hartman's reconsideration motion will ask the court to remove that part of its discussion, as it is outside the court's limited scope of jurisdiction and they should not have addressed that issue. Hartman simply doesn't want that language to exist in a court decision where it could come back to haunt the unions in a future case.

"But," Hartman stressed, "removing that language will have no impact on the court's remaining opinion regarding Strunk and would not make any change in their determinations about the constitutionality of the 2003 legislation."

Victory for Oregon Public Employees!

2005-03-08T14:31:00.000-08:00

The Oregon Supreme Court issued a 90-page decision which overturned several key provisions of the 2003 PERS legislation. A thorough analysis will take us some time. However, here is a quick summary of what the court decided.

The Supreme Court's decision was unanimous that the changes to the 8% guarantee were unconstitutional and that the withholding of the COLA for current retirees was a breach of the PERS contract. In a 3-1-3 decision, the court denied our other challenges (6% diversion, actuarial factors, variable, call, & 14b corrections) on either justiciability (not ripe for review) or narrow statutory grounds. The Court did, however, reaffirm its prior cases recognizing the contractual nature of PERS and left no room for those who might be interested in abrogating the system.

A more detailed analysis will follow shortly. This is a clear victory for PERS members.

Opening Brief Filed In Federal PERS Appeal

2005-03-04T13:04:00.000-08:00

Bennett Hartman filed its opening brief today in the appeal of Judge Mossman's ruling in the Federal PERS case. That case challenges the 2003 PERS legislation as a violation of PERS' members Federal Constitutional Rights. In August 2004, Judge Mossman dismissed the challenge based upon a narrow interpretation of the PERS contract. In this appeal, Plaintiffs challenge that interpretation as being at odds with both Federal and State case law.

Oregon Taxpayer's Union Liable for Sizemore Liabilities

2004-12-16T14:59:00.000-08:00

Today, Multnomah County Circuit Court Judge Pro Tem Eric Neiman granted summary judgment to the Oregon Education Association against Oregon Taxpayers Union-PAC. The Judge found that Oregon Taxpayers Union-PAC was a successor organization to Oregon Taxpayers United-PAC, and was therefore liable for that organization's judgment debt. Both organizations are run by Bill Sizemore, who has also been found personally liable for that same debt. All of this liability stems from a 2002 jury verdict in which OTU was found liable for civil racketeering. BHMK Attorney Aruna Masih represented OEA in this matter.

BHMK has an active practice representing labor unions in complex litigation. For more information regarding this or any other matter, please contact Greg Hartman at (503) 227-4600.

Police Officer's E-Bay Sex Tape Not Protected by First Amendment

2004-12-09T14:15:00.000-08:00

In keeping with the general trend that the 9th Circuit Court of Appeals generally stands a good chance of being overturned by the U.S. Supreme Court, the Supreme Court overturned the 9th Circuit's recent decision on a public employee free speech matter. In that case, City of San Diego v. John Roe (December 6, 2004), the city terminated an officer who made a video showing himself stripping and masturbating in uniform. The officer was also selling it on E-Bay. The 9th Circuit went out on quite a limb and found that he could not be terminated for making that video because he was speaking out on a matter of public concern. The Supreme Court disagreed and held that the lower court had departed from the general rule that a matter of public concern is a matter concerning governmental policies that are of interest to the public at large. The Court went on to find that even though the tape was made outside of the employment context, it still had an adverse impact on the employer, and therefore must meet the public concern test. Once again, while not a huge departure from past case law, the Supreme Court has reaffirmed that it is not interested in expanding constitutional free speech protections.

BHMK Attorney Nelson Hall Wins Firefighter’s Reinstatement

2004-12-07T13:08:00.000-08:00

In mid-2004, the City of Salem terminated a firefighter who was on long-term disability after aggravating an old on-the-job injury. The City did this, even though the union’s contract with the City prevented termination for two years from the time of the disability and the firefighter had only been out on disability for a few months. The City asserted that the two years should be measured from the time of the original injury, which had happened several years before. Nelson Hall, on behalf of the IAFF Local 314 argued that the City was clearly violating the contract and that the protection began to run at the time the disability was approved. The arbitrator agreed and held that the contractual two year protection started at the time the long-term disability is approved, in this case after the aggravation, not the original injury.

BHMK Attorney Nelson Hall advocates for injured and disabled workers as well as those injured in accidents outside of the workplace. To contact Nelson, please call (503) 227-4660.

Supreme Court Grants Review of Bergerson FDAB Decision

2004-11-30T14:13:00.000-08:00

The Oregon Supreme Court has agreed to review the Court of Appeals decision in Bergerson v. Salem-Keizer School District. This case presents a challenge to the “no reasonable school board” standard in teacher dismissal cases. Under that standard, even if an agency finds that a dismissal is clearly excessive, unreasonable or arbitrary, the agency must uphold the dismissal unless it can say that “no reasonable school board” would have terminated the teacher. This standard is much higher than what is required by the teacher Fair Dismissal statute. Nonetheless, lower courts have repeatedly applied this standard to deny teachers reinstatement. Oral argument will be by BHMK attorney Thomas Doyle and is set for March 8 at Willamette University College of Law.

Suit Alleging Retaliation for Filing Worker's Compensation Claim Will Go to Jury

2004-11-22T15:57:00.000-08:00

In Oregon, it is against the law for an employer to retaliate against an employee for filing a workers compensation claim. However, frequently trial courts will dismiss plaintiffs claim before a jury has a chance to decide the case because the employee has only circumstantial evidence of retaliation. In the recent case of Williams v. Freightliner, the Oregon Court of Appeals clarified the standard for courts to determine if a retaliation case will go the jury. In Williams, the employee was injured at work and was returned to work under light duty restrictions. The employer moved the employee to a light duty position. However, that work exacerbated her injury and she refused to continue in the position because the job was outside her doctor's restrictions. Ultimately, she was terminated for insubordination. The trial court dismissed her case because it found that she had not rebutted the employer's claim that she was fired for insubordination. The Court of Appeals disagreed and held that because there was evidence of discrimination, in particular the timing of the termination following her complaints, dismissal was inappropriate. The court went on to hold that "after a plaintiff has presented evidence of discrimination, evidence of an employer's nondiscriminatory motive in terminating an employee will not support summary judgment." In other words, once an employee produces evidence of discrimination, it is very likely that the cased will be allowed to be presented to a jury. As a result of this case, judge's will be more likely to allow employee's cases to be tried to juries, rather than be summarily dismissed.

BHMK's Labor and Employment Practice Group represents individual employees in worker's compensation and all other employment related matters.

BHMK Files Suit on Behalf of Disabled Police Officers

2004-11-17T10:06:00.000-08:00

BHMK Attorneys Thomas Doyle, Hank Kaplan, and Nelson Hall filed suit this week against the City of Portland on behalf of seven disabled police officers. These officers have accepted disability claims for diseases, including cancer, lymphoma and heart disease, which resulted from their occupation, including exposure to toxic chemicals in methamphetamine labs during their law enforcement careers. Under City policy, because they suffer from diseases directly related to their employment, these officers are entitled to receive health insurance. However the City has refused to pay for that insurance. According to the City, the promises contained in its own manuals can not be relied upon by its employees as a contract.

BHMK's Labor and Employment practice team specializes in representing employees in contract and wage claims against both public and private employers. For more information, please contact Thomas Doyle at (503) 227-4600.

Tentative Settlement Optional Retirement Plan

2004-11-15T14:56:00.000-08:00

BHMK Attorney Thomas Doyle represented a group of six plaintiffs on behalf of a class of thousands of Oregon University faculty who participate in State's Optional Retirement Plan ("ORP"). The Oregon University System had unlawfully reduced ORP participants contributions by in excess of two-million dollars. As a result of the filing of the suit and this settlement, OUS has reimbursed its employees in excess of two-million dollars, including repaying lost earnings on those contributions and plaintiffs' attorney fees.

BHMK specializes in representing plaintiffs in wage class actions against public and private employers..

Employer may be liable for the statements of an employee

2004-10-20T14:12:00.000-07:00

In a recent decision, the Oregon Court of Appeals ruled that an employer may be liable for the statements of an employee, when the statement was made made to promote positive relations with the employer's clients. In Coney v. Fagan, a supervisor (Ms. Fagan) of Firco Healthcare, Inc. stated to another company’s manager that she had seen one of it’s employees (Mr. Coney) using cocaine. As a result, Mr. Coney was terminated. Thereafter, Mr. Coney brought a claim against the supervisor and Firco Healthcare, Inc. for defamation and intentional interference with economic relations.

The Court of Appeals determined the trial court erred in granting summary judgment for Firco Healthcare, Inc. and Ms. Fagan. When an employee does in the course of his employment a duty in an improper manner, his employer is liable for any consequent injury. The Court found there to be genuine issues of fact that should be decided by a jury.

The Oregon Supreme Court significantly limits review of some state and city actions

2004-09-27T14:48:00.000-07:00

The Oregon Supreme Court issued an opinion on September 16, 2004 which significantly limits review of some state and city actions. In Yancy v. Shatzer, the court overruled several previous cases which recognized an exception to the mootness doctrine. Under the mootness doctrine, a case will be dismissed as moot if the rights of the parties will no longer be affected by a decision of the court. For instance, the plaintiff in Yancy was subject to an exclusion order which prevented him from going to city parks for 30 days. The Circuit Court upheld the exclusion, but was not able to render its decision until after the 30 days had expired. Therefore, since the 30 days had already expired and there were no other consequences to the plaintiff, the case was moot. To address this issue, Oregon courts have recognized an exception to the mootness doctrine which allows review of matters which are capable of repetition and because of mootness, will evade review. In effect, this exception prevents matters from being unreviewable because of mootness. However, under Yancy, the court rejected this exception to the mootness doctrine. As a result, some actions by the state which are short lived may never be reviewed by the appellate courts. The bottom line, racing to the court is necessary in some cases to avoid mootness.

Failure to Accommodate Promptly is ADA Violation

2004-09-17T14:09:00.000-07:00

In Stamper v. Salem-Keizer School District, the Oregon Court of Appeals held that an employer may be liable if they fail to accommodate an employee within a reasonable time under the Americans with Disability Act. Mr. Stamper was injured in a car accident and developed an "abnormal hearing sensitivity" which prevented him from continuing his employment as a full-time teacher. He informed the school district in mid 1997 of his disability, but did not receive a full time in a suitable position until the end of 2000, even though the district had an open position for which Mr. Stampers education and experience qualified him. Thereafter, Mr. Stamper brought an action against the School District for failing to reasonably accommodate his disability.
The Court of Appeals held that a reasonable jury could find the accommodations provided were unreasonable because of the delay between the time plaintiff requested suitable full-time employment and actually receiving the accommodation. The Court stated that an employer does not meet its obligation to reasonably accommodate an employee if it could have done so within a reasonable period of time, but did not.

Wage Claim Can Be Waived Before It Arises

2004-08-25T17:13:00.000-07:00

The Oregon Court of Appeals held that an employer can defend its failure to pay wages under Oregon Wage Laws by arguing that the employee agreed to waive their rights to the wages before leaving employment. Erickson v. American Golf Corporation. Up until now, it was generally understood that an employee could not waive his rights under the wage and hour statute by implication. The court agreed that waiver of statutory rights was not allowed, but held the waiver of the underlying substantive right to be paid a certain amount could occur. The key for the court was that the employee allegedly agreed to be paid a smaller amount while still employed and before the cause of action arose. This case has a potentially far reaching effect on the rights of employees to sue over inadequate payments of wages when they agree in some manner during the course of employment to receive a smaller amount than is actually due. However, the better interpretation of this case will be to confine it to circumstances where employees enter into subsequent written agreements which explicitly agree to a smaller amount.

Break-In-Service Lawsuit Filed

2004-08-25T16:05:00.000-07:00

Bennett Hartman, on behalf of the PERS Coalition of public employee unions, has filed a new challenge to another piece of the 2003 PERS "reform" legislation. This suit attacks the Break-In-Service (BIS) provisions of HB 2020 (2003). Under this law, PERS members who fail to perform service for a public employer for longer than six months are kicked out of PERS and placed into the PERS successor plan known as OPSRP. In general, OPSRP members receive a smaller benefit than the member would have received under PERS. Under the previous law, a member had to be "out of service" for five years before they would lose PERS membership. Moreover, the law applies retroactively, so that time without service from before the law took effect is counted towards the BIS calculation. The suit argues that by removing these members out of PERS prematurely, the law violates PERS members’ contract rights. Pleadings may be found at our firm’s website.

Mosman Rejects PERS Federal Constitutional Claim

2004-08-24T15:12:00.000-07:00

Federal Judge Mosman granted summary judgment in favor of the PERS Board yesterday in the PERS Coalition's federal lawsuit to challenge the 2003 "reform" legislation. This suit is the counterpart, but is technically unrelated, to the pending State Supreme Court challenge. In what may be a first, Federal Judge Mosman refused to grant Federal Constitutional protection to a state contract right. Instead, the judge declared that he was not bound by the Oregon Supreme Court's 1996 holding that PERS members had a continuing right to the terms of their PERS contract for their entire career. The judge went on to find that because the PERS statute did not explicitly say that PERS members had a right to the terms of their contract in the future, no such right existed. As a result, under this Judge's ruling, PERS members only have a right to their account balance, not to any possible future earnings. This holding is directly contrary to both State and Federal cases. Bennett Hartman will be filing a Motion for Reconsideration on this matter and ultimately an appeal to the Ninth Circuit Court of Appeals. The decision and additional pleading can be found on our website.

Reopener Negotiations Subject to 150-Day Bargaining, Not Expedited 90-Day Process

2004-08-20T14:59:00.000-07:00

The Oregon Employment Relations Board ruled on July 16, 2004 that the normal 150-day bargaining period applied to reopener negotiations. In re Declaratory Ruling by Medford School District/OSEA. This case resolves one of the lingering areas of confusion over the changes instituted by the 1995 Senate Bill 750 revision to the Public Employee Collective Bargaining Act (PECBA). Over the years, many employers have argued that a reopened negotiations should be covered by the expedited 90-day process. However, the ERB confirmed that the expedited process only applies where the parties are negotiating "concerning a proposed change in employment relations not covered by a collective bargaining agreement," or the parties are renegotiating an invalid contractual provision pursuant to ORS 243.702. OAR 115-40-000(2)(a). As a result of this ruling, employers will be slowed in their efforts to implement change in reopened subjects and will hopefully be more inclined to reach negotiated agreements.

Failure to Pay All Wages Owed Results in Penalty and Attorney Fee Award

2004-08-20T14:22:00.000-07:00

In what seems like an obvious decision, the Court of Appeals ruled on August 4, 2004 that an employer must pay all wages owed within a day of an employee's termination or else a penalty will be awarded. Salinas v. One Stop Detail. In this case, an employer terminated an employee and paid him all wages owing for that pay period. However, the employer had unlawfully deducted $300 from the plaintiff's earlier pay check. The plaintiff sued and asked for a penalty wage under ORS 652.150. Under that statute, an employer's failure to pay wages to an employee after termination will result in the employer having to pay up to 30 days of penalty wages. The court ruled that the wages do not have to be owed from the last pay period in order for the penalty to accrue, but rather the wages can be owed from an earlier pay period. The bottom line -- all wages that are owed must be paid by the end of the first business day after termination.

Bennett Hartman has an active practice in wage and hour litigation on behalf of employees. Please contact us if you have a wage dispute that we can help with.

Plaintiff Who Fails to Disclose Possible Tort Lawsuit Loses It In Bankruptcy

2004-08-20T09:01:00.000-07:00

On August 11, 2004, the Oregon Court of Appeals held that a plaintiff who files for bankruptcy must disclose possible lawsuits or lose the right to pursue the suit in court. Therefore, individuals pursuing bankruptcy should consult an attorney about possible lawsuits they have against third parties. Otherwise, they will lose it in the bankruptcy proceeding if it is not properly disclosed. In Vucak v. City of Portland, Plaintiff sustained injuries in an automobile accident involving a city employee and filed a tort claim against the city. After filing her notice of the tort claim, but before filing her complaint, plaintiff obtained a discharge of her debts by filing for bankruptcy. During the bankruptcy procedure, plaintiff failed to include her pending tort claim on the schedule of her assets. The court ruled if the claim is not included on the schedule of assets by the debtor and the trustee does not dispose of the claim, it becomes property of the estate and the debtor is no longer the real party in interest. As a result, the trial court granted defendants motion for summary judgment, because plaintiff lacked standing. The bottom line is that bankruptcy debtors use the bankruptcy code at their own peril and must make sure that all claims are disclosed properly.

Sizemore Personally Liable for $2.5 Million

2004-08-19T13:27:00.001-07:00

Yesterday, Multnomah County Judge Ann Fisher ruled from the bench that Bill Sizemore is personally liable for the approximately $2,500,000 judgment against his organization Oregon Taxpayers United PAC. That judgment was obtained in 2002 by Bennett Hartman on behalf of the Oregon Education Association. This means Sizemore will have to pay the money out of his own pocket. Bennett Hartman Attorney Aruna Masih wrote and argued the motion. More details will follow on the BHMK website.

Supreme Court sides with PERS Coalition on crucial procedural ruling

2004-08-12T13:46:00.000-07:00

On August 10, 2003, the Oregon Supreme Court issued an order denying the motion to dismiss filed by a group of public employers in the appeal of the City of Eugene lawsuit, which has come to be better known as the Lipscomb decision. The motion was filed by public employers after they settled with the new PERS Board appointed by the Governor. In their motion, public employers argued that their settlement with the PERS Board mooted the appeal pending before the Supreme Court. The pending appeal was one filed by Bennett Hartman on behalf of public employees represented by the PERS Coalition of labor unions who had intervened earlier in the case. If the public employers’ motion had been granted, the intervening public employees would have been denied the opportunity to have their appeal of Judge Lipscomb’s decision reviewed by the Oregon Supreme Court. As a result of the court’s August 10th order, however, the public employees’ appeal will be heard by the State’s highest court on September 21, 2003, at 9:00 a.m. Public employees will be represented at that hearing by Greg Hartman of Bennett Hartman. Recent pleadings from the case can be found at the Bennett Hartman website.

Tort Claim Notice Filed in PERS White Case

2004-08-09T12:50:00.000-07:00

A tort claim notice was filed in prelude to amending the pending White v. ? case. The White case is a Circuit Court Action challenging the City of Eugene Case Settlement and subsequent arnings allocation decisions. This case was filed in the Multnomah County Circuit Court challenging the PERS Board’s settlement of the City of Eugene case as a breach of its fiduciary duty and under the Administrative Procedure’s Act (APA). The case also challenges the Board’s allocation of earnings to the Contingency, Gain-Loss, and Capital Preservation Reserves under the APA.

Public employees who cooperate in internal investigations are absolutely immune from liability for defamation

2004-08-09T11:29:00.000-07:00

Tom Johnson, a Deschutes County employee, brought this suit for defamation after being dismissed from his job. Leading up to the termination, the County investigated concerns that Mr. Johnson engaged in official misconduct and work-related wrongdoing. As part of the investigation, Ms. Brown was asked questions about Mr. Johnson and she responded with negative comments. After being terminated, in part based upon those comments, he sued. As a result, the Court of Appeals was asked to decide whether or not a public employee who cooperates with an investigation and makes negative statements about another public employee can be sued for those statements. The Court ruled that "executive privilege" applies to all public employees, and therefore Ms. Brown had absolute immunity from liability. In other words, she could not be sued for her statements made about Mr. Johnson during the course of investigation. This case acts as a two edged sword. On one hand, it expands the protections for Oregon public employees to cooperate in investigations. At the same time, it reduces public employees' ability to sue supervisors and co-workers over false statements. Tom Johnson v. Nancy Brown and Deschutes County, 193 Or.App. 375, 2004, affirmed in slip opinion at 99CV0360AB; A115017 (August 4, 2004.)

Optional Retirement Plan Notice of Class Action Served

2004-08-06T11:18:00.000-07:00

Oregon University System faculty have the option to participate in a retirement plan other than PERS. Under this Optional Retirement Plan or ORP, members receive the same contribution to their accounts as their PERS counterparts.

Last November voters passed Ballot Measure 29, which allowed the State to borrow two billion dollars to pre-pay its obligations for its PERS employees. This pre-payment allowed the State to borrow money at a lower rate than it would have to pay if it waited until the bill was due. This pre-payment had the effect of reducing the monthly percentage of the employer contribution; since the State was paying ahead of time, the monthly rate was correspondingly lower. However, when it came to figuring out how much to contribute to the accounts of ORP members, the Oregon University System completely ignored the two billion dollar pre-payment. As a result, employer contributions to ORP members' accounts dropped.

The Association of Oregon Faculty retained BHMK to file suit challenging this take-away. In response, the OUS reversed their decision and has begun to pay ORP members the correct amount. However, the Oregon University System is still refusing to pay most ORP members any interest on late contributions and is refusing to pay the penalty for their failure to pay the wages in a timely manner. As a result, BHMK gave notice yesterday that OUS has 30 days to correct its unlawful actions, or this lawsuit will be turned into a class action on behalf of all ORP members.

Any deprivation likely to deter the exercise of free speech constitutes adverse action

2004-08-04T11:22:00.000-07:00

It is well know that a public employer cannot take adverse action against a public employee because the employee speaks out on a matter of public concern. However, under the recent case of Spiegla v. Hull, 371 F.3d 928 (7th Cir 2004) a claim of First Amendment retaliation does not require an adverse employment action within the meaning of the antidiscrimination statutes, such as Title VII of the Civil Rights Act of 1964. The adverse action may give rise to a constitutional claim even if the deprivation to the employee was permissible under the terms of employment. This means that reassignment and other less tangible changes in a job, in response to speaking out on a matter of public concern, can be challenged in Federal Court.

In Spiegla, correctional officer Nancy Spiegla questioned a new vehicle search policy and reported the suspicious behavior of two co-workers consistent with contraband trafficking. Four days later, Spiegla was reassigned to a more physically demanding and less skilled post and an unfavorable change in schedule; the reassignment was permissible under the terms of Spiegla’s employment contract. Spiegla brought suit under 42 U.S.C. 1983 against her employer, alleging unlawful retaliation against her First Amendment rights. After the district court ruled against Spiegla on summary judgment, the Seventh Circuit Court of Appeals reversed. Therefore, a public employee will prevail on a § 1983 claim where protected speech is a "motivating factor" in the employer’s adverse action, and the adverse action is likely to deter protected speech (even if the action is permissible under the terms of plaintiff’s employment contract).

Hartman Argues PERS Case

2004-07-30T17:08:00.000-07:00

Greg Hartman argued a challenge to the 2003 PERS "Reform" Legislation today before the Oregon Supreme Court. For those real PERS geeks out there, the two hour oral argument will allegedly be available by DVD from the Oregon Judicial Department in the near future. The parties expect the court to issue an opinion by January 2005. This matter has been widely covered in the Oregon papers, both in Portland, Salem, and around the State.

Court of Appeals Remands Case to FDAB

2004-07-29T15:07:00.002-07:00

The Oregon Court of Appeals has remanded a dismissal case back to the Fair Dismissal Appeals Board and has ordered the FDAB to explain its decision in more detail. The case of Bergerson v. Salem Keizer School District, www.publications.ojd.state.or.us/A118518a.htm , involved a challenge to the termination of a teacher. The District terminated the teacher for intentionally driving her van into the back of her estranged husbands parked and unoccupied truck. The FDAB found that the termination was unreasonable and was an excessive punishment. Under ORS 382.850, FDAB is empowered to overturn the dismissal if the termination was arbitrary, unreasonable, or clearly excessive. However, according to the Court, the FDAB did not explain its decision well enough. Specifically, the Court wanted the FDAB to use the "no reasonable school board" standard which it adopted from pre-statutory case law. Under that standard, FDAB can only overturn an otherwise proper dismissal if it finds that no reasonable school board would have terminated the teacher. Of course, one would expect that FDAB’s use of the term unreasonable must be synonymous with the "no reasonable school board" standard since that phrase purports to define the term unreasonable.
On the question of whether the termination was "clearly excessive" the court ordered the FDAB to define clearly excessive. Apparently, the Court did not believe that this term was adequately defined adequately. The teacher had argued that clearly excessive should be defined differently than the "no reasonable school board" standard which is apparently derived from the "unreasonableness" The Court did not define the term itself, but rather ordered the FDAB to defined it. However, the Court indicated that the term could be defined differently than the "no reasonable school board" standard which is used for the "unreasonable" determination.

Court of Appeals Remands Case to FDAB

2004-07-29T14:47:00.000-07:00

The Court of Appeals issued an opinion remanding a case back to the Fair Dismissal Appeals Board so that the Board can explain its decision to reinstate a teacher. Bergerson v. Salem-Keizer School District, http://www.publications.ojd.state.or.us/A118518a.htm. The case is a challenge to the Salem-Keizer School District's dismissal of a 20 year verteran teacher for her crashing her van into her estranged husband's parked and unoccupied truck. The FDAB had found that the termination was unreasonable and clearly excessive. The Court directed the FDAB to explain how its decision applies the "no reasonable school board" standard, which it derived from pre-statute case law. Under that standard, the FDAB must find that "no reasonable school board" would have terminated a teacher for the teacher's conduct.

The Court also noted that the "no reasonable school board" standard may also apply to a determination of whether a termination is a "clearly excessive" sanction. However, the Court did not define the term "clearly excessive." Rather, the Court ordered the FDAB to do so. Interestingly, although the Court appears to lean toward using the same definition (i.e "no reasonable school board") for both the terms "unreasonable" and "clearly excessive," it has left the door open for the FDAB to define "clearly excessive" differently than the term "unreasonable."

Finally, the court rejected the District's argument that remand to the school board was required where some of the facts were found to be unsubstantiated, even where the dismissal was overturned on other grounds. In rejecting the District's argument, the Court explicitly overruled the case of Thomas v. Cascade School District.

PERS Oral Argument Set For July 30, 2004

2004-07-27T15:57:00.000-07:00

Greg Hartman will argue the challenge to the PERS "reform" legislation before the Supreme Court on July 30. For copies of the most recent filings, including the recently filed sur-reply briefs, go to www.bennetthartman.com.

Sizemore Held in Contempt

2004-07-24T15:57:00.000-07:00

In June 2004, Bill Sizemore was held in contempt by Multnomah Circuit Court Judge Jerome LaBarre for his failure to comply with the Court's orders. In particular, the Judge Labarre found that Mr. Sizemore had violated his orders regarding the transfer of assets from Oregon Taxpayers United Education Foundation and Oregon Taxpayers Union Political Action Committee, and had also filed false tax forms on behalf of the Education Foundation in violation of Judge LaBarre’s April 2003 injunction. The Court ordered Sizemore to relinquish the assets that he had transferred and disgorge the contributions that his new PAC, Oregon Taxpayers Association, had acquired through illicit use of the OTU mailing list. Mr. Sizemore has 60 days from the date of the Court's order to comply with the Court's directives or more severe sanctions may yet be considered.

The case is significant because it puts teeth into the Court's previous injunction against Bill Sizemore's organization, and makes it more difficult for Mr. Sizemore's new organization, Oregon Taxpayers Association, to fund its brand of right wing political extremism.

Welcome Heidi Brown to Bennett Hartman

2004-07-20T14:57:00.000-07:00

Heidi Brown has joined the firm as an Associate in our labor and employment group. Her background includes 12 years of criminal defense including felonies and juvenile justice issues. She is also a second degree blackbelt in the Indonesian martial art of Poekoelan.

Judge Tentatively Approves $122,000 Class Action Wage Settlement

2004-07-12T16:46:00.000-07:00

Lane County Judge Holland has tentatively approved a settlement of a wage class action arising out of a 2001 strike by long time Bennett Hartman client Association of Wesern Pulp and Paper Workers (AWPPW), www.awppw.org, against Weyerhauser Paper Company. After the strike settlement, and as workers were returning to work, the company layed off over a hundred employees. However, the company did not pay those workers the retroactive pay and holiday pay which was set out in the strike settlement agreement. Plaintiffs sued, on behalf of the class, alleging that this failure to pay wages was a violation of Oregon wage statutes. While the defendant denies it did anything wrong, it has agreed to pay each of the 122 affected employee $1000 each to settle this lawsuit. To see the class notice and other public documents on this case, please go to www.bennetthartman.com.