[10-11-00) Oregon State Police Officers' Association, Complainant v. State of Oregon, Department of State Police and Department of Administrative Services, Respondent Case No. UP-30-00. In the Matter of Interest Arbitration between State of Oregon, Department, Petitioner v. Oregon State Police Officers' Association, Respondent. Case No. AR-3-00.
The Board held an expedited hearing on July 24, 2000, in Salem, Oregon.
Mark J. Makler, Attorney at Law, Garrettson, Goldberg, Fenrich & Makler, 1313 N.W. 19th Avenue, Portland, Oregon 97209, represented the Oregon State Police Officers' Association.
M. Ann Boss, Assistant Attorney General, Labor and Employment Section, Department of Justice, 1162 Court Street N.E., Salem, Oregon 97310, represented the State of Oregon, Department of Administrative Services, and Department of State Police.
On June 13, 2000, the State of Oregon, Department of Administrative Services on behalf of the Department of State Police (State), filed exceptions to an interest arbitration award issued on May 31, 2000. The State sought review of the award pursuant to ORS 240.086(2), ORS240.888, and ORS 243.752.
On June 22, 2000, the Oregon State Police Officers' Association (Association) filed an answer denying the State's allegations and asserting as affirmative defenses that: (1) this Board does not have jurisdiction to review interest arbitration awards under ORS Chapters 240 and 243; (2) the State's exceptions request relief not within this Board's jurisdiction; and (3) the State's actions constitute an unfair labor practice. On that same date, the Association filed an unfair labor practice complaint alleging that the State had violated ORS 243.672 (1)(f) and (g), as well as ORS 243.752, by refusing to implement the arbitrator's award. The Association also alleged that the State engaged in direct dealing with employees in seeking to partially implement the award, in violation of ORS 243.672(1)(a), (b), and (e).
The State filed an answer to the Association's complaint on July 11, 2000, admitting and denying certain allegations. The State also asserted as affirmative defenses that the award was not final and binding, and that the Association's allegations of direct dealing failed to state a claim upon which relief may be granted.
This Board granted expedited consideration of the unfair labor practice complaint under OAR-115-40-017.(1) This Board also consolidated Case No. UP-30-00 with Case No. AR-3-00.
The issues presented are:
1. Does this Board have jurisdiction to hear exceptions to an interest arbitration award pursuant to ORS 240.086?
2. Did the State violate ORS 243.752 and ORS 243.672(1)(f) by refusing to implement the interest arbitration award issued on May 31, 2000?(2)
3. Did the State violate ORS 243.672(1)(a), (b), and (e) by dealing directly with members of the Association's bargaining unit regarding partial implementation of the award?
For the reasons set forth below, we decide that we do not have jurisdiction to hear exceptions to an interest arbitration award pursuant to ORS Chapter 240. However, we conclude that the State violated the Public Employee Collective Bargaining Act (PECBA) in refusing to implement the interest arbitration award. We further determine that the State did not violate ORS 243.672(1)(a), (b), and(e) by certain communications.
Having the full record before it, this Board makes the following:
RULINGS
With its unfair labor practice complaint, the Association filed a motion to dismiss the State's exceptions to the interest arbitration award (Case No. AR-3-00). The Association argues that this Board does not have jurisdiction to review interest arbitration awards under the statutes cited by the State. The Association asserts that ORS 240.086(2), relied upon by the State, applies only to grievance arbitration awards. The Association contends that only PECBA provisions, namely ORS 243.752, apply to the review of interest arbitration awards.
We initially denied the Association's motion. At hearing, the Association renewed its motion. After fully considering the matter, we grant the Association's motion. The State's exceptions were filed under ORS 240.086 and seek review of the interest arbitration award under ORS 240.086 but applying standards from ORS 243.752. Issues concerning the final and binding nature of an interest arbitration award are typically raised as a defense to an unfair labor practice complaint under the PECBA, alleging refusal or failure to comply with the award. Neither the PECBA nor our rules allow a party to file a direct challenge to an interest arbitration award. The ORS 243.752 issues raised by the State in its exceptions filed under ORS 240.086 are not properly before us.(3)
In addition, after examining the language of ORS 240.086, we are convinced that its scope does not extend to interest arbitration awards. ORS 240.086 and ORS 240.088 were designed to allow review of arbitration awards involving the State and employees in certified or recognized collective bargaining units. ORS 240.088 provides that ORS 240.086 and that section are the exclusive means for review of such awards (except for judicial review where appropriate). There is no mention of interest arbitration in ORS Chapter 240. And, the exclusivity provision of ORS 240.088 conflicts with ORS 243.752(1), which expressly identifies the standards and means for review of the refusal or failure to comply with an interest arbitration award. The provisions of Chapter 243, including ORS 243.752 (1), expressly apply to the State as a public employer.(4) We conclude that ORS 240.086(2) reviews do not apply to interest arbitration awards. The proper mechanism for review of such awards is through the PECBA, specifically ORS 243.752 and ORS 243.672(1)(f). The petition in Case No. AR-3-00 will be dismissed.
FINDINGS OF FACT
1. The State is a public employer and the Association is a labor organization.
Procedural history
4. The parties commenced negotiations for a successor agreement in January of
1999. Negotiations and mediation failed to result in a successor agreement. On
March 1, 2, 3, and 30, 2000, an interest arbitration hearing was held before
Arbitrator Howell L. Lankford in Salem, Oregon, pursuant to ORS 243.742-746. The
Association and State submitted numerous issues to the arbitrator, the main
areas of dispute concerning various salary selectives and differentials. The
Association was represented by Attorney Daryl S. Garrettson. The State was
represented by Assistant Attorney General M. Ann Boss. The parties stipulated
that there were no procedural irregularities in the hearing process. On or about
May 31, 2000, the arbitrator issued his findings, opinion, and award. Arbitrator
Lankford awarded the Association's last best offer (LBO).
5. By letter dated June 13, 2000, Ronald C. Ruecker, Superintendent of the Department of State Police, notified nonbargaining unit bureau commanders, division directors, and district commanders of the following:
"The award has the potential to negatively affect the State now and in the
future, and comes at a time when the Department is working diligently to hire
100 new troopers and to replace those who are retiring. We know that the
experience we are losing cannot be overcome by simply hiring new people.
Clearly, we appreciate and respect the workforce of our Department and all that
they do on a daily basis. One of the objectives of the State's appeal is to
obtain permission to implement the undisputed provisions of the parties'
proposals, including the 10-1-99 2% pay increase, while seeking an expedited
hearing on the appeal itself. Ideally, the appeal process can be completed with
the least possible disruptions to our employees.
"In discussion with the Department of Administrative Services, legal counsel, and our own staff, we are mindful and respectful that there will be contrary views on some of the issues. Nevertheless, I ask for your patience and pledge to keep you informed. Please share this information with your employees. It is important that they understand that there is a context to this award that extends beyond its effect on them personally. If you need information to assist you with answering questions, Captain Robert Miller or Lieutenant Alfred Bathke should be able to assist you."
7. The State notified the Association that it was refusing to implement the arbitrator's award by letter dated June 20, 2000.
The arbitration award
8. In his award in favor of the Association's LBO, the arbitrator discussed in depth all of the applicable statutory criteria (ORS 243.746), and the evidence and argument of the parties. On pages 3-10, the arbitrator compared the current language of the arbitration provisions of the PECBA with the language that existed prior to Senate Bill 750. In this context, the arbitrator made some initial observations and stated his interpretations of the current statute, including the following:
"Finally, it seems to me that supervisory pay data does fit under the 'secondary' statutory factors, first, as it affects the employer's ability to pay a proposed wage increase, and, second, as an 'other priority' under Subsection (b). [Footnote omitted.] On the other hand, it is an [sic] reasonable systemic assumption of collective bargaining that managers and supervisors will make more than bargaining unit members. [Footnote omitted.] In order for supervisory pay data to be very interesting, therefore, the data ordinarily must show that supervisory pay rates are substantially disproportionate one way or the other. The record in this case would not support such a claim. (fn 10) (Emphasis in original.)
fn 10: "Two other 'other factors' require brief mention. The State spent a lot of time and money in the 1980's on an internal comparability study and realignment of its personnel. It is not at all clear that such issues of 'internal comparability' fall under any of the listed statutory factors except when they point to employees doing essentially the same (i.e. 'equal' rather than merely 'comparable') work. Second, it is not at all clear that the very notion of a labor market fits within the listed statutory factors. The Department's Post Hearing Brief argues as much (at 36ff), without, perhaps, realizing what a shocking suggestion that is. Labor market analysis simply is what modern personnel departments do. Depriving an interest arbitrator of that tool would be like depriving a carpenter of a saw (while reserving the right to complain bitterly about the resulting strange structure the carpenter might be forced to create), and interest arbitrators have generally continued to analyze these cases in labor market terms--as near as possible--without considering the Department's astonishing suggestion--well supported by the language of the statute--that labor market is simply an 'other factor,' and thus ordinarily out of bounds in these cases."
9. In discussing comparability pursuant to ORS 243.746(4)(e), the arbitrator said:
"First, by far the most costly provision at issue here is the Association's incentive proposal for 3% for an AA degree or Intermediate DPSST certificate and 6% for a BA degree or Advanced certificate. The Department proposes 2% for an AA or 4% for a BA, with no DPSST equivalency.
"Virtually every other police employer in the State uses the DPSST training program for new recruits; but OSP trains its own. DPSST gives credit for 680 hours for OSP recruit school and gives credit for the Department's 20 hours per year of required patrol inservice training. Thus, without any formal college degree at all, OSP required recruit and inservice training will make an employee eligible for an intermediate certificate after five years of experience (with the addition of 38 education 'points') and eligible for an advanced certificate after ten years (with 40 education 'points'). The Department therefore characterizes the Association's proposal as a 'thinly disguised' pay rate increase, and I will essentially treat it as such for purposes of comparability analysis. Of course, this treatment quite skips over the very substantial issue of the value of an AA or BA degree to a police officer (apart from potentially increasing his or her total compensation) and to the public. Insofar as the record before me addresses that issue, it shows without serious dispute that the welfare and interest of the public are well served by encouraging OSP officers to acquire formal college degrees; but it does not show that there is substantial value to the Department or to the interest and welfare of the public for Department employees to acquire DPSST Intermediate or Advanced certification. (fn 11) (Emphasis in original.)
fn11: "Troopers cannot promote to Sergeant without completing the DPSST supervisor course and certification within a year of the promotion. With that single exception, and except for the overall compensation consideration, I must agree with the Department that its proposal to credit only actual AA and BA degrees--without DPSST equivalents--would better serve the welfare and interest of the public if judged purely from the prospective of the value of college degrees to police officer performance. From the prospective of total compensation, however, the Association's proposal is one percent more for both AA and BA degrees; and I assume that the Department is correct in arguing that the DPSST certification equivalence essentially turns it into a wage rate increase. (The Association's proposal also does not restrict those premiums to classifications which do not require a degree; but the record does not really show whether or not such classifications--which are generally in the non-sworn part of the unit--are substantially behind their comparables, so I cannot conclude that the record particularly favors extending the compensation increases to those employees.) (Emphasis in original (underlined) and emphasis added (italics).)
"Second, the statute clearly and expressly requires a comparability analysis in terms of 'the overall compensation' received by the employees being compared, rather than an analysis in terms of the costs to the employers. (fn12) 'Overall compensation' is defined in the prior subsection; and the Legislature changed the language of the comparability provision to echo that term exactly, lest there be room for doubt. Suppose, for example, that an employer pays $10 per hour and is subject to a 20% payroll tax which does not inure to the benefit of the employees. Regardless of whether those employees were the ones at issue in an interest arbitration proceeding or were proposed as comparables, their 'overall compensation' would be $10 per hour and not $12. In the real world, of course, it is unusual to find a cost to the employer which indisputably 'does not inure to the benefit of the employees;' but not all employer costs automatically translate dollar for dollar as compensation received by the employees. (This case presents a classic example, because both parties propose to include in the primary comparables some states which are FICA participants and some states which are not. (fn13)) Both the current and the prior versions of the statute clearly require the comparison analysis to reflect 'vacations, holidays and other excused time' as part of the 'overall compensation' of the employees being compared. Moreover, on the face of the current statutory language the comparison is expressly required to be conducted in terms of overall compensation reflecting all such leave time. (Emphasis in original.)
fn12. "OSP's Post Hearing Brief suggests (at 25) that I 'initially objected to the Employer's inclusion of several elements as compensation...' I must respectfully beg to disagree. The State initially presented a comparability case couched entirely in terms of comparison of employer costs, rather than employee compensation; and the State's primary witness on comparability agreed that those figures did not reflect 'compensation received . . .as in total wage.' It seems to me that the PECBA invests an interest arbitrator with a public duty to insure at least a minimally adequate record on an issue as crucial as comparability. Rather than face the Association's inevitable argument that the State's own witness had agreed that its comparability analysis was not what the statute expressly required, I pointed out that clear statutory provision, on the record, and allowed the State additional time to prepare and present a comparability case in terms of 'overall compensation of other employees performing similar services.' (Emphasis in original.)
fn13. "Similarly, in Teamsters Local #670 v. Yamhill County (Lankford, 1997) I held that the differential in PERS rates paid by different public employers in Oregon could not automatically be factored in as differences in compensation received by those employees--since those different employer rates have no effect on the eventual retirement benefits of those employees--but that PERS 'pick-up,' if paid by an employer, was part of the employee's compensation. (Emphasis in original.)
"Third, the statute requires comparison of the compensation 'of other employees performing similar services,' but of course it does not tell the arbitrator where OSP compensation should be in relation to such a comparison. At the 'average?' Above it? At some particular rank? Both parties here propose the four contiguous states as 'primary comparables;' but they disagree substantially on how OSP compensation should stand in comparison to that paid in the four contiguous states. (Emphasis in original.)
"This issue has come up in every one of the parties' prior resorts to interest arbitration. In 1985 the State proposed the four contiguous states as comparables, and the Association proposed California, Washington and Portland. Arbitrator Timothy Williams (NAA) used the four contiguous states, but included comparison to Portland as an 'other factor' under the then-current language of the statute. He also began a series of discussions of the issue of exactly where OSP compensation should fall in comparison with the appropriate other employees' compensation, and he concluded (at 83-84) that OSP 'salaries and benefits...ought to be in all cases above the four state average (in other words, be closer to the salaries of California and Washington than to the salaries of Idaho and Nevada).' Professor Ross Runkel followed Arbitrator Williams' determination of comparables in the next interest arbitration award in this unit, in 1990; and Arbitrator Jack Calhoun continued that tradition in the next, 1993, case, noting (at 41) (Emphasis in original.)
"It is important to the interest arbitration process to have an amount of constancy in the use of labor market comparables. Constancy enhances predictability, which in turn facilitates the relationship between the parties.
"Finally, in 1996, under the current version of the statute, Arbitrator William Bethke again used the traditional four contiguous states as comparators. He departed from Arbitrator Williams' approach only in detail, using a 'rank' approach--behind California and ahead of the other three--rather than Williams' 'above the four state average.' (Footnote omitted.) (Given Arbitrator Williams' own explanation--which is set out immediately above--the difference is not very substantial.) However, he held (at 10-11) that the current Statute also required him to compare these employees with those performing similar services in 'the largest population cities and counties' in Oregon. (Emphasis in original.)
"Despite this history, OSP again proposes to compare trooper salaries to what it calls the 'average' of the four contiguous states. Of course, the statute does not use the term 'average;'and not a single one of the interest arbitrators who have dealt with this unit in prior years has been sold on the 'average' of the four comparator states. The Association is certainly correct in arguing that nothing in this record suggests that there has been any change from 1985 when the State argued to Arbitrator Timothy Williams (NAA) that
"the Oregon state police officer had to be better trained and more knowledgeable than any counterpart in any other state of local jurisdictions because the breadth of his/her responsibility was significantly greater than that of officers in other jurisdictions.
"As far as this record shows, none of the comparable employees of other public employers have the breadth of training and responsibilities of an Oregon State Patrol Trooper or Senior Trooper. It is largely for that reason that every single interest arbitrator who has considered this issue in the past has found, in effect, that OSP compensation should be above the four state 'average' and should fall just behind that of similar employees in California, and ahead of similar employees in the other three comparator states. Nothing in the record before me justifies a departure from that conclusion. (Footnote omitted.)
"The fourth preliminary issue is whether OSP pay should be compared with the rates of pay offered by the largest cities and counties for the same services. Arbitrator Bethke held that the statute required such comparison. (Footnote omitted.) Arbitrator Thomas Levak (NAA) reached that same conclusion earlier this year in International Association of Firefighters, Local 1660 v. State of Oregon, pointing out (at 8) that the current statutory language defined comparables to 'include' other states, not to be 'limited to' other states. Even if the current version of the statute allows an arbitrator to 'limit' his or her consideration to other states, I submit that the State of California has correctly grasped the relation between recruitment and retention and this issue of comparability and has enshrined that grasp in this statutory language: (Emphasis in original.)
"In order for the state to recruit and retain the highest qualified employees for the California Highway Patrol, it is the policy of the state to compensate state traffic officers the estimated average total compensation . . . [of equivalent employees] within the Los Angeles Police Department, Los Angeles county Sheriff's Office, San Diego Police Department, Oakland Police Department and the San Francisco Police Department. * * *
"This simply recognizes that large police employers are inherently the primary competitors for the limited human resource of skilled police officers. Considering the role that recruitment and retention play in the current version of the Oregon interest arbitration statute, it makes no sense to refuse to compare OSP compensation with that offered by the actual local competitors for these employees' services. (fn 17)
fn 17: "The ultimate result in the case at hand does not depend on consideration of any but the four contiguous states which the parties agree to be the primary comparators.
"On the merits.
"* * * * *
"In short, for what the parties agree to be the 'primary comparators,' the State's figures set out in Table 1 are as rosy as the picture gets from OSP's point of view. (Footnote omitted.) I therefore skip over many subsidiary comparability issues (e.g. the proper treatment of employer and employee insurance costs and of employer retirement contributions), simply because, on the most optimistic picture the record provides, and treating the Association's incentive proposal simply as a disguised wage increase as OSP characterizes it, the maximum 6% education and certification incentive would still leave a Trooper behind Washington--and, of course, quite far behind California--at the ten year point. At the five year point, where the total compensation lag is the greatest, an employee with a minimum of 38 education 'points' would automatically receive at least the 3% intermediate certification incentive. (On the Department's proposal, such an employee would receive no incentive increase unless he or she had actually been awarded an AA degree.) As far as this record shows, no interest arbitrator who has ever considered the issue has found such a rate of overall compensation to serve the interest and welfare of the public."
10. In his discussion of the statutory factor of recruitment and retention the arbitrator made the following comments:
"The Association argues (PHB at 11) that it is not necessary 'to wait until the horse is out of the barn before addressing this issue.' This factor assumes unusual importance in the case at hand because the Legislature has established a service level of 380 Troopers and Sergeants 'routinely assigned to patrol' (quoting a Budget Report Note).(Footnote omitted.)
"There is not much dispute that Troopers have not often voluntarily departed from the Department in the past. In the 1997-1999 biennium there were only five resignations (three of which occurred in the course of personnel investigations). The Association argues, and I must agree, that those figures should not be automatically projected into the future, because the seniority composition of the unit is changing substantially. Police officers seldom move in the later part of their careers; but the seniority composition of this unit grows shorter and shorter due to the increase in the sworn workforce coupled with the unusual volume of retirements.
"There is no dispute in the record that State Police Officers are extremely expensive to train. A Trooper spends sixteen weeks in the academy and three months with a coach before even being allowed the opportunity to be minimally productive on the road. The unusually long, 18-month trial service period for these employees shows how long it takes--and how much initial wage and training costs must be invested--before OSP can even make an informed judgment about whether or not an applicant will make a good Trooper.
"The OSP hires at the bottom. As far as this record shows, the agency makes no particular systematic attempt to lure employees from other police agencies in mid career. (Footnote omitted.) That means that the evidence of the agency's 'ability...to attract...qualified personnel' is inherently limited: there could be crowds of potential mid-career applicants, or none. OSP has no opportunity to argue that crowds of trained and experienced mid-career police officers are beating on the door; because that door is notoriously closed to lateral transfers. On the other hand, that same policy answers the Association's argument (Post Hearing Brief at 25) that police officers are not transferring into what should be 'the premier law enforcement agency in the state' from any other major local police forces. (Emphasis in original.)
"OSP's applicant pool numbers are not encouraging. In 1995, OSP invited over 4,200 minimally qualified applicants to take the admission test, and 1,157 (about 25%) accepted. At the beginning of 1996, OSP invited 2,279 such applicants, and 761 (33%) accepted. At the beginning of 2000, OSP invited almost 1,500; 587 (39%) tested; and 277 (18% of those invited and 47% of those tested) passed the written and physical tests. After the subsequent interviews, the Department determined that 84 of the applicants were qualified for the 40 vacancies. If those numbers are not untypical, then it takes about 18 minimally qualified applicants to generate one qualified potential OSP trainee. (The record provides no adequate explanation for the apparent steady decline in the numbers of minimally qualified applicants for Trooper positions.)
"There were 90 retirements and a total of 14 other departures from the Department's Trooper/Senior Trooper ranks during the 1997-1999 biennium. As long ago as 1996, OSP accurately projected its retirements during the current, 1999-2001 biennium at 110, with an additional 82 during the 2001-2003 biennium. In addition, the Legislature authorized 100 new patrol officers. Filling those 292 vacancies, at the rate of 18 minimally qualified applicants per each qualified potential trainee, would take a pool of over 5,200 minimally qualified applicants; and nothing in this record suggests that such a pool is available at current pay levels. In fact, the OSP recruiting officer told the Association President that OSP, like many other police employers, was having trouble finding adequate qualified applicants.
"The record shows no retention problem to date. Police officers are among the most employer-stable of public employees. The Association argues that that stability is generally less in the early years of a law enforcement career. (Footnote omitted.) If that general claim is correct, then the high percentage of recent hires may justify some concern over retention in the near future, given the compensation differential between OSP and large local police agencies. In mid-1999 52 percent of the force was Senior Trooper; and by January, 2000 that percentage had declined to 47. The Association's figures show that a young Trooper with a BA degree could make almost $1,000 more per month by transferring out to the City of Portland. Moreover, as the Association points out (Post Hearing Brief at 58) (Emphasis in original.)
"virtually every mid to large police agency in the Willamette Valley and the State of Oregon offers an incentive based on DPSST certificates [so] a trooper with an intermediate or advanced DPSST can turn that certificate into cash simply by taking a position with another Oregon jurisdiction."
11. In his concluding remarks concerning which package better served the interest and welfare of the public, the arbitrator had this to say:
"There are two unfortunate consequences of the overall superiority of the Association's package: First, if this were an issue-by-issue proceeding, I would certainly award the Telecommunicators the increase proposed by the Department. This is not because I disagree with the Association's argument that the data do not establish that the turnover in that classification is based on pay rate. It is, rather, that the turnover rate is so shocking, and the safety hazard of overworked and--with such turnover--underexperienced employees in these positions is so great that it seems to me that the welfare and interest of the public would be well served by providing the Department with the additional tool of higher pay as it works toward a solution to the turnover and recruitment problem. Second, considered in isolation, nothing in this record begins to justify the Association's proposed 20% differential for pilots of more than three years tenure. In package-based interest arbitration there is an inevitable hazard that the prevailing package will include one or two quite disreputable minor proposals. This is such a case.
"None of the other disputes here weigh very strongly toward one package or the other, so the final answer must be that the Association's education/certification proposal will put the key classifications into nearly their proper relationship to their agreed comparables, particularly at the five year point which should be most attractive for recruitment purposes. None of the other secondary factors outweighs this consideration, and the interest and welfare of the public will better be served by the Association's package."
CONCLUSIONS OF LAW
DISCUSSION
the state violated the pecba by refusing to implement the award
The Association charges that the State violated ORS 243.752 and ORS 243.672(1)(f) by refusing to implement an interest arbitration award issued to the parties by Arbitrator Lankford on May 31, 2000. The State admits it refused to implement the award, but contends that the award is not final and binding because it does not meet applicable statutory requirements. We conclude that the award is based on the statutory factors and is supported by substantial evidence. The State, therefore, is bound by its terms.
ORS 243.752 provides, in relevant part:
"A majority decision of the arbitration panel, under ORS 243.706 and 243.726 and 243.736 to 243.746, if supported by competent, material and substantial evidence on the whole record, based upon the factors set forth in ORS 243.746(4), shall be final and binding upon the parties. Refusal or failure to comply with any provision of a final and binding arbitration award is an unfair labor practice. * * *"
Under this statute, our charge is two-fold: to determine if the interest arbitration award is (a) supported by substantial evidence and (b) based upon the statutory factors. Oregon City Police Employees Association v. City of Oregon City, Case No. UP-9-89, 11 PECBR 343 (1989). The State argues that the award here complies with neither of these requirements.
Recently, in Eugene Police Employees' Association v. City of Eugene, Case No. UP-8-00, 18 PECBR 673, 683-684, this Board described the nature of our review under ORS 243.752:
"The statutory language that empowers this Board to review interest arbitration awards is not out-come oriented, but process-oriented. We are to ensure that the decision is based upon the statutory criteria and supported by substantial evidence. Our role is to determine whether the arbitrator applied the statutory factors, not whether he or she did so in the manner that we would have. If we were to substitute our judgment for that of the arbitrator as to the 'correct' application of the statutory criteria, the express objective of having final and binding interest arbitration would be defeated. Likewise, we do not substitute our judgment for that of the arbitrator as to the evidence. Our task is to decide if the award is supported by substantial evidence, but that does not mean that we would have reached the same result as the arbitrator. If the arbitrator applied the factors, and the award is supported by substantial evidence, then we will enforce it."
These words bear repeating because most of the State's arguments are aimed not at whether this award is based upon the statutory factors, but at how the arbitrator applied them. Similarly, the State's substantial evidence claims are objections to how the arbitrator interpreted the evidence, not whether there is evidence to support the decision. As we said in City of Eugene, our review does not extend to second-guessing the arbitrator's legal and factual interpretations.(5)
The State argues that our approach is wrong. The State claims that this Board is required by the language of ORS 243.746(4) and ORS 243.752 to examine not only the process followed by the arbitrator, but the evidence as well. According to the State, this result is mandated by Oregon cases(6) which set forth the methodology for construing Oregon statutes. The State says that the substantial evidence language of ORS 243.752 implies that the weight of the evidence must be more than just reasonable(7) and that ORS 243.746(4) requires us to analyze the arbitrator's application of the factors for correctness. We disagree. Nothing in the language of ORS 243.746(4) or ORS 243.752 broadens our review to encompass the correctness of the arbitrator's legal and factual determinations. The plain language of ORS 243.752 simply tells us to ensure that the arbitrator's decision is "based upon" the factors in ORS 243.746(4) and that it is supported by substantial evidence on the whole record.
The interest arbitration decision is based upon the statutory factors
The State insists that the arbitrator's award is not based upon the statutory factors because it fails to give first priority to the "interest and welfare of the public." The State also argues that the arbitrator improperly based his award on nonstatutory factors. The State makes the following specific claims: (1) the arbitrator improperly considered the education/certification differential to be a wage issue and "delegated" to California and Washington the decision of proper compensation to be paid Oregon troopers; (2) the arbitrator improperly relied upon prior arbitration decisions between the parties in determining comparability; (3) the arbitrator made findings that run directly counter to his decision to award the Association's LBO; (4) the arbitrator ignored the recruitment and retention factor; (5) the arbitrator improperly considered local jurisdictions as comparators; (6) the arbitrator improperly used internal comparators; (7) the arbitrator incorrectly required insurance and PERS components of compensation to be submitted in the form of "benefit to the employee" as opposed to cost to the employer; and (8) the arbitrator incorrectly excluded roll-up costs of the Association's proposal in analyzing the Department's ability to pay. These arguments are addressed, in turn, below.
Education/certification differential. By all accounts, the crux of the difference between the parties' LBOs were certain salary selectives and differentials--the most important being the education/certification differential for troopers.(8) In its post-hearing brief to the arbitrator, the State argued: "The essential effect of the Association's selective and differential proposals is an unjustified across-the-board salary increase on top of the '2 plus 2' to the Trooper classification (additional 3 and 6% for DPSST Certificates or college degrees)." Picking up on the State's characterization of the LBO, the arbitrator stated in his award:
"The Department therefore characterizes the Association's proposal as a 'thinly disguised' pay rate increase, and I will essentially treat it as such for purposes of comparability analysis."
The State now asks us to find error with the arbitrator's conclusion that the differential was tantamount to a wage increase. The arbitrator's discussion about this matter fell squarely under his consideration of the statutory factor of overall compensation. (ORS 243.746 (4)(e).) The State would have us delve into the specifics of how the arbitrator applied the statutory criteria, and that is not our role. Furthermore, it is disingenuous for the State to argue for this depiction of the Association's proposal, then turn around and charge the Arbitrator with error for adopting it.
Other state comparability. In performing his comparability analysis of overall compensation, the arbitrator utilized four contiguous states--California, Washington, Idaho, and Nevada. Both parties proposed these states as "primary comparables." The arbitrator decided that Oregon belonged below California but above Washington with respect to employee compensation. Because of that determination, the State argues that the arbitrator improperly "delegated" to California and Washington the proper compensation for Oregon troopers. Once again, the State is asking us to review not whether the award is based upon the statutory criteria, but whether the arbitrator applied the comparability factor correctly.
ORS 243.746(4)(e) provides, in relevant part:
"Comparison of the overall compensation of other employees performing similar services with the same or other employees in comparable communities. As used in this paragraph, 'comparable' is limited to communities of the same or nearest population range within Oregon. Notwithstanding the provisions of this paragraph, the following additional definitions of 'comparable' apply * * *
"* * * * *
"(C) For the State of Oregon, 'comparable' includes comparison to other states."
The arbitrator applied this statutory factor, looked to other states, and determined, based upon the evidence, where Oregon's compensation should fall. Nothing in the arbitrator's decision runs afoul of this factor. The statute properly leaves it to the arbitrator's discretion to determine the appropriate relationship to comparables, and we leave it there as well.
Prior arbitration awards. The State next claims that the arbitrator improperly relied upon prior interest arbitration decisions between these parties in deciding comparability. At hearing the Association offered these decisions as evidence, and they were received without objection. In his award the arbitrator discussed previous approaches adopted by arbitrators on comparability. He ultimately concluded:
"As far as this record shows, none of the comparable employees of other public employers have the breadth of training and responsibilities of an Oregon State Patrol Trooper or Senior Trooper. It is largely for that reason that every single interest arbitrator who has considered this issue in the past has found, in effect, that OSP compensation should be above the four state 'average' and should fall just behind that of similar employees in California, and ahead of similar employees in the other three comparator states. Nothing in the record before me justifies a departure from that conclusion." (Emphasis added.)
The State seeks a right/wrong review of the arbitrator's comparability analysis, which was clearly conducted pursuant to ORS 243.746 (4)(e) and based upon the record before him. We will not substitute our judgment for the arbitrator's with respect to application of the statutory criteria.
Arbitrator's factual findings. The State's next objection to the award is that the arbitrator made factual findings inconsistent with his determination to award the Association's LBO. Specifically, the State says that the arbitrator found that DPSST intermediate and advanced certification was of no substantial value to the department or to the interest and welfare of the public. The State also emphasizes that the arbitrator found "disreputable" the Association's proposed differential for pilots and the Association's failure to include a salary selective for telecommunicators.
The State has taken these statements out of context. In analyzing overall compensation under ORS 243.746(4)(e), the arbitrator commented that the record before him showed that the interest and welfare of the public was well-served by encouraging OSP officers to acquire formal college degrees, but that it did not show that there was a substantial value to the interest and welfare of the public for the employees to acquire DPSST intermediate or advanced certification. He noted that the State's proposal to only credit actual degrees would better serve the welfare and interest of the public judged from the value of college degrees to police officer performance. From the perspective of total compensation, however, the arbitrator found that the Association's proposal offered more of a wage increase. Ultimately, the arbitrator concluded that the interest and welfare of the public was better served by giving this bargaining unit a greater increase in overall compensation because these employees had fallen from their proper relationship to their comparables.
These factual determinations were properly the arbitrator's to make. As emphasized above, we will not scrutinize such findings for correctness. The fact that the arbitrator implied that one of the Association's proposals was disreputable has nothing to do with whether the award is based upon the ORS 243.746 factors. Likewise, a finding that DPSST certifications were of little value does not mean that the arbitrator did not apply the statutory factors.
The State also claims error based on remarks made by the arbitrator in the context of his ultimate conclusion regarding the interest and welfare of the public. In deciding that the Association's package better served the interest and welfare of the public, the arbitrator commented on what he called the "unfortunate consequences" of the LBO approach of the Oregon statute, namely that: "In package-based interest arbitration there is an inevitable hazard that the prevailing package will include one or two quite disreputable minor proposals. This is such a case."
The arbitrator made these remarks while analyzing statutory criteria factors he is charged with applying. He did so in the context of deciding that the interest and welfare of the public was better served by the Association's package--as a whole. It is not our job to second-guess these particular judgments of the arbitrator.
Recruitment and retention. The State further objects to the award on the grounds that the arbitrator ignored the recruitment and retention factor of the statute. We disagree. The arbitrator did not ignore this factor. Using the State's numbers regarding troopers, the arbitrator determined that "it takes about 18 minimally qualified applicants to generate one qualified potential OSP trainee." Looking to the upcoming demand for 292 new troopers, the arbitrator concluded that nothing in the record suggested that the necessary qualified applicant pool was available at current pay levels. Although he found a recruitment problem, the arbitrator found no retention problem to date.
The State complains that the arbitrator did not consider the lack of problems in attracting and retaining other classifications at issue (pilots, bomb technicians, etc.). To the contrary, the arbitrator made findings about attraction and retention in these classifications. He found that the State had consistently filled the bomb technician positions with internal postings and that there were no recent voluntary departures. He also noted that there had been only one opening for a pilot in the last three years, and there were several troopers who wanted a pilot slot. Moreover, as we recently said in Lane County Peace Officers' Association v. Lane County, Case No. UP-28-00, 18 PECBR 750 (September 26, 2000), while an interest arbitrator must consider all evidence and then decide which LBO best effectuates the PECBA factors, there is no requirement that the arbitrator discuss and analyze all of the evidence produced in an interest arbitration hearing. Id.
The arbitrator determined the relevant recruitment and retention evidence and then discussed and made interpretations of that evidence. The State's complaint is not that the arbitrator failed to base his decision on this statutory factor, but rather with the conclusions he drew from the evidence concerning this factor. The latter inquiry is not within our scope of review.
Local jurisdiction/internal comparators. The State's next two complaints are similar: the arbitrator considered local jurisdictions and internal comparators which, the State argues, violated the PECBA statutory criteria. According to the State, considering local jurisdictions violates the statute's requirement that the State be compared with other states. The State also argues that the statute does not allow for consideration of internal comparators.
With respect to the use of local jurisdictions, the arbitrator said that it makes no sense to refuse to compare OSP compensation with that offered by local competitors for the employees' services. However, the arbitrator noted that the ultimate result in this case did not depend on consideration of any but the four contiguous states which the parties agreed were the primary comparators.
As to internal comparators, the arbitrator commented that, in his opinion, supervisory pay fits under the statutory factor of ability to pay--but that in order for the data to be "very interesting," the data would have to show substantially disproportionate rates one way or the other. He said the record in this case would not support such a claim. The arbitrator also noted that was it was not clear whether issues of internal comparability fall under any of the other listed factors except when the employees are doing essentially the same work. In the context of evaluating the Association's proposal for a selective increase for communication system analysts (CSAs), the arbitrator discussed evidence concerning the pay rates of ODOT employees performing substantially the same work as CSAs.
As long as an interest arbitrator's decision is based on the statutory factors, issues concerning the scope and reach of particular criteria are properly for the arbitrator to decide. The arbitrator did just that here. He acknowledged certain statutory gray areas and made decisions about how to apply the criteria. We will not disturb his interpretation of the statutory factors.
Compensation received. The State's remaining objections to the arbitrator's application of the statutory criteria involve two things: the arbitrator's determination that insurance and PERS components of compensation should be submitted in the form of "benefit to the employee" and his exclusion of roll-up costs in analyzing the State's ability to pay the Association's proposal.
On the ability to pay factor, the arbitrator concluded that the primary focus in this case should be on current ability to pay rather than projected costs in the next biennium. It was within the arbitrator's discretion whether or not to include such costs in analyzing the ability to pay factor.
In comparing the overall compensation presently received by bargaining unit employees with that of comparables, the arbitrator discussed whether employer cost was an appropriate measure of employee compensation. He explained that while it is unusual to find a cost to the employer that does not inure to the benefit of employees, not all employer costs "automatically translate dollar for dollar as compensation received by the employees." He had this to say about the State's initial presentation of evidence on the subject of overall compensation:
fn12 "* * * The State initially presented a comparability case couched entirely in terms of comparison of employer costs, rather than employee compensation; and the State's primary witness on comparability agreed that those figures did not reflect 'compensation received . . .as in total wage.' It seems to me that the PECBA invests an interest arbitrator with a public duty to insure at least a minimally adequate record on an issue as crucial as comparability. Rather than face the Association's inevitable argument that the State's own witness had agreed that its comparability analysis was not what the statute expressly required, I pointed out that clear statutory provision, on the record, and allowed the State additional time to prepare and present a comparability case in terms of 'overall compensation of other employees performing similar services.'"
It is obvious from the arbitrator's comments that in deciding what form the evidence should take, the arbitrator was directly applying the statutory factors. That was his job, and it is not our's to intrude into such determinations.
In summary, the legislature has given us the job of ensuring that an interest arbitration decision is based upon the factors set forth in ORS 243.746(4). As we said at the outset, the State's complaints about the arbitrator's decision go beyond the scope of our review under ORS 243.752. The State's objections are leveled at the way the arbitrator interpreted the statutory criteria, his factual determinations in connection with the criteria, and/or a combination of the two. We do not judge the correctness of such determinations. Our review of the award convinces us that the arbitrator's decision is based upon the statutory factors.
The interest arbitration award is supported by substantial evidence
Related to the above arguments, the State asserts that the arbitrator's decision is not supported by competent, material, and substantial evidence on the whole record. Specifically, the State lodges these complaints: (1) There is no evidence to support the Arbitrator's finding of a recruitment and retention problem for troopers, or any other classification except for telecommunicators. And, the arbitrator entirely, and improperly, relied on hearsay evidence to reach his conclusion on this factor; (2) The arbitrator inappropriately used evidence as summarized and discussed in prior arbitration awards. Particularly, the arbitrator used language from a prior award to find that troopers must be better trained and more knowledgeable than officers in other jurisdictions; and (3) The arbitrator found that there was no substantial value to the Department or to the interest and welfare of the public for employees to acquire DPSST intermediate or advanced certification. This finding, the State claims, supports its LBO rather than the Association's.
Pursuant to ORS 243.752(1), this Board must review interest arbitration awards to determine if they are supported by substantial evidence. In Oregon City Police Employees Association v. City of Oregon City, supra, we adopted the substantial evidence test as explained by the Oregon Supreme Court in Younger v. City of Portland, 305 Or 346, 752 P2d 262 (1988). In Younger, the court addressed the duty of an agency that is charged with review of a decision to determine if the decision was supported by substantial evidence on the whole record. Id. The court adopted a "reasonableness" standard. Id at 360. To paraphrase the court, the question we must decide is whether, in light of all of the evidence in the record, the decision was reasonable. Id. After reviewing the record, we are convinced that this award meets that test.
Hearsay. First, the State is incorrect in claiming that there is no evidence regarding a recruitment and retention problem for troopers. The arbitrator primarily utilized numbers from the State's exhibits concerning applicant data and employee turnover to arrive at the conclusions he did. Second, the State wrongly claims that the sole evidence of a recruitment problem was hearsay. The arbitrator made one reference to a hearsay statement as a concluding remark to his discussion on recruitment. Again, for the most part, he relied on the State's own numbers. There is substantial evidence in the record to support his factual determinations.(9)
Prior awards. The State next reiterates its objection to the arbitrator's use of prior arbitration awards in discussing comparability. The State contends that the arbitrator improperly relied upon evidence discussed in the prior awards to reach his conclusions. As stated previously, the arbitration awards were offered and received as evidence, without objection, in this proceeding. In addition, the record includes training exhibits and testimony from Charles Hayes, the Director of the Training Division for the Department. Hayes detailed the training received by troopers and expressed his opinions about its quality. The record reflects ample, credible evidence to justify the arbitrator's findings.
Certification value. The State contends that its LBO should have been awarded because of the arbitrator's finding that there was no substantial value to the Department and the interest and welfare of the public for employees to acquire DPSST intermediate and advanced certification. As previously discussed, the State has taken this finding out of context. See pps 23-24 supra. The arbitrator made this statement judging the value of such certification vis-a-vis college degrees. He concluded, however, that from a total compensation perspective, the Association's package better served the interest and welfare of the public because the bargaining unit was out-of-step with its comparators. From our review of the record, the arbitrator's decision was reasonable.
After reviewing the entire record before the arbitrator, we find that a reasonable person could conclude, as the arbitrator did, that the Association's package better served the interest and welfare of the public than the package proposed by the State. The arbitrator's decision is supported by substantial evidence.
The State did not violate the pecba by directly dealing with the bargaining unit
The Association's second count in this case alleges that the State violated ORS 243.672(1)(a), (b), and (e) by directly dealing with bargaining unit employees about partial implementation of Arbitrator Lankford's award. The centerpiece of this claim is a letter written by Superintendent Ruecker to certain supervisors. In that letter, Ruecker informs these supervisors about the State's appeal of the award and explains the reasons for the appeal. In this context, Ruecker said that one of the objectives of the appeal was to obtain permission to implement the undisputed provisions of the parties' proposals, including the two percent pay increase. Ruecker, later in the letter, also asks the supervisors to share the information contained in the letter with their employees.
ORS 243.672(1)(a) claim. The Association claims that Ruecker's letter violates ORS 243.672(1)(a), which provides that it is an unfair labor practice for a public employer to: "[i]nterfere with, restrain or coerce employees in or because of the exercise of rights guaranteed in ORS 243.662."(10) (Emphasis added.) After reviewing the evidence, we conclude that the Association has failed to establish either an "in" or "because of" violation of (1)(a).
The Association alleges that the contents of the Ruecker letter were directly communicated to members of the bargaining unit, which resulted in telephone calls to the Association president from members. Botwinis received two telephone calls questioning why the Association would not agree to partial implementation of the award. The Association responded to Ruecker's letter by sending out a packet of materials to each member to let members know what was going on. This action was out of the ordinary and cost the Association about $750 beyond the normal costs of communicating with members.
In order to establish a "because of" violation under (1)(a), we must be persuaded, after all of the evidence is received, that the reason the employer acted was to "'coerce, restrain or interfere with'" the exercise of PECBA-protected rights. ATU v. Tri-Met, Case No. UP-48-97, 17 PECBR 780, 787 (1998). We are not so persuaded here.
Ruecker's letter was sent to nonbargaining unit employees--supervisors. On its face, there is nothing about the letter that is threatening. It plainly was intended to inform Department employees (supervisors and bargaining unit employees alike) about the State's decision to appeal the award and the reasons for the appeal. Ruecker felt that this communication should occur soon after the State's decision to appeal because he knew there would be questions and predictably a negative impact on the morale of personnel. Ruecker mentioned partial implementation because he wanted to convey that it was neither his nor the State's intent to unnecessarily disrupt people's lives by depriving them of undisputed portions of the award.
We find nothing in the text of this letter, or in Ruecker's testimony, that establishes that Ruecker sent this letter to coerce, restrain, or interfere with the protected rights of Department employees. Similarly, with respect to the "in" prong of (1)(a), these facts do not show that the natural and probable effect of this letter would tend to interfere with, restrain, or coerce employees in the exercise of their PECBA rights. There is nothing inherently coercive about either Ruecker's words or the context in which they were delivered. We will dismiss the Association's (1)(a) claim.
ORS 243.672(1)(b) claim. The Association relies upon the facts set forth above to assert its (1)(b) claim. ORS 243.672(1)(b) prohibits an employer from interfering with the existence or administration of a union. A complainant must prove actual interference by the employer, i.e., employer conduct which has a direct effect on the union. Haphey and Bondietti v. Linn County Sheriff's Office, Case No. UP-115-87, 11 PECBR 631 (1989). We find the facts insufficient to establish a (1)(b) violation.
Botwinis received two telephone calls questioning the Association's stance on partial implementation of the award. Botwinis did not specify whether the calls were from bargaining unit employees--he said only that one was from east of the mountains and one from the west. Without more, two calls questioning the Association's stance on a matter simply does not rise to the level of interference with the administration of a labor organization.
The Association also points to the fact that it spent about $750 more than usual in communicating with its members as a result of Ruecker's letter. Instead of posting information on bulletin boards or delivering information through representatives, the Association sent individual packets to members. On this record, we are not convinced that the Association was forced to use alternative means of communication because of Ruecker's letter or that the other usual means for communicating with members were inadequate. We will dismiss the Association's (1)(b) claim.
ORS 243.672(1)(e) claim. Lastly, the Association alleges that sending Ruecker's letter to designated supervisors constitutes unlawful direct dealing in violation of (1)(e). The Association contends sending the letter, with instructions to inform the bargaining unit, was tantamount to "self-dealing" and was an "end-run" around the Association.
ORS 243.672(1)(e) provides that it is an unfair labor practice for an employer to "[r]efuse to bargain collectively in good faith with the exclusive representative." The question here is whether sending Ruecker's letter to supervisors violated the State's obligation to bargain in good faith by direct dealing with unit members. We conclude that it did not.
In ATU v. Rogue Valley Transportation District, UP-80-95, 16 PECBR 559 (1996), we found that the employer violated its duty to bargain in good faith when it bypassed the union, met with employees to discuss its contract proposal, revised its proposal in response to address issues raised in the meeting, and then submitted new proposals directly to unit members. Id at 16 PECBR 576. The conduct here does not in any way resemble the conduct we found objectionable in Rogue Valley. Ruecker sent this letter to his supervisors, not directly to unit members. While he asked supervisors to share information in the letter with employees, there is nothing in the letter that suggests he was attempting, either directly or indirectly, to bargain with employees. Rather, the purpose of the letter was to inform the workforce about the State's appeal and the reasons for it--in hopes of minimizing the negative impact on employee morale. The Association's (1)(e) claim will be dismissed.
Civil penalty
In connection with its claim that the State violated ORS 243.672(1)(f) and ORS 243.752, the Association requested a civil penalty. The Association has not met the pleading requirements for a civil penalty set forth in OAR 115-35-075(2).(11) We will not consider the request.
ORDER
1. The State shall cease and desist from refusing to implement Arbitrator Lankford's arbitration award.
2. The remainder of the Association's complaint is dismissed.
3. The State's arbitration review petition (Case No. AR-3-00) is dismissed.
Member Thomas's Special Concurrence:
In my dissent to the majority's decision in Eugene Police Employees' Association v. City of Eugene, supra, I concluded that ORS 243.746(4) requires a process, similar to that mandated by the Administrative Procedure Act, which results in a decision that is clearly based on the statutory factors: "In summary, interest arbitration opinions must contain findings of fact and a reasoned explanation of how the proposals, based on the facts, relate to the statutory criteria." 18 PECBR at 697. The decision at issue here meets that standard.
However, this dispute could have been minimized (or avoided) if the arbitrator had simply stopped after applying the statutory interest arbitration factors to the facts and after basing the decision on those factors. He should have refrained from ruminating about the meaning of the factors. Instead, the arbitrator presented an elaborate, extensive interpretation and historical analysis of the interest arbitration law, as it existed both before and after the 1995 enactment of Senate Bill 750.
In spite of my concern with some of the many details in the arbitrator's decision, I agree with my colleagues that the award complies with the law and should be enforced.
1. The State also requested expedited review of its exceptions to the arbitrator's award. Our rules do not provide for expedited consideration of a petition filed under ORS 240.086.
2. In addition to its (1)(f) claim, the Association alleged that the State violated (1)(g) by refusing to implement the interest arbitration award. The proper PECBA provisions for interest arbitration review are ORS 243.752 and ORS 243.672(1)(f)-- not (1)(g). See Marion County Law Enforcement Association v. Marion County and Marion County Sheriff, Case No. UP-142-92, 14 PECBR 591, 596 and n.6 (1993). We therefore do not consider the Association's (1)(g) claim.
3. As a practical matter, our ruling does not effect the resolution of the issues in this case. The State has raised all of the issues identified in Case No. AR-3-00 as defenses to the Association's unfair labor practice complaint.
4. ORS 243.650(20) provides, in relevant part: "'Public employer'" means the State of Oregon * * *."
5. Board Member Thomas dissented in City of Eugene. She agrees with the nature of our review as stated here and as applied to the facts of this case.
6. PGE v. BOLI, 317 Or 606, 859 P2d 1143 (1993); Young v. State of Oregon, 161 Or App 32, 983 P2d 1044, rev den 329 Or 447 (1999).
7. This claim is contrary to the discussion of "substantial evidence" contained in the Oregon Attorney General's Administrative Law Manual (2000). See pp. 163-164. The manual includes the following quote from Berwick v. AFSD, 74 Or App 460, 464-465, 703 P2d 994, rev den 300 Or 332 (1985): "The agency tries to be right; we only decide whether it has been rational." Our role in reviewing interest arbitration awards is similar. We decide whether the decision, on the whole record, is rational, not whether it is right.
8. The parties agreed to a general salary increase for all bargaining unit members of two percent on October 1, 1999, and two percent on January 1, 2000. With respect to the remaining economic issues in dispute, the difference in the 1999-2001 cost between the State and the Association's LBO packages was about $200,000.
9. As we have said repeatedly, factual determinations are properly for the arbitrator to make--including whether to accept or exclude hearsay evidence and/or the weight to accord it.
10. ORS 243.662 provides: "Public employees have the right to form, join and participate in the activities of labor organizations of their own choosing for the purpose of representation and collective bargaining with their public employer on matters concerning employment relations."
11. OAR 115-35-075(2) provides, in part: "Any request for a civil penalty must be included in a party's complaint or answer. The request must include a statement as to why a civil penalty is appropriate in the case under these rules, with a clear and concise statement of the facts alleged in support of the statement. * * *"