[05-19-00] Oregon AFSCME Council 75, Complainant v. State of Oregon, Department of Public Safety Standards and Training, Respondent. ORS 243.672(1)(e), Case No. UP-56-98

A hearing was held before Administrative Law Judge (ALJ) William Greer on November 23 and 29, 1999, in Monmouth, Oregon. The hearing closed on January 18, 2000, upon receipt of the parties' post-hearing briefs.

Barbara J. Diamond, Attorney at Law, Smith, Gamson, Diamond and Olney, 2110 S.W. Jefferson, Suite 200, Portland, Oregon 97201-7712, represented Complainant.

Rudolph S. Westerband, Attorney-in-Charge, Labor and Employment Section, Department of Justice, 1162 Court Street NE, Salem, Oregon 97310, represented Respondent.

______________________________

Oregon AFSCME Council 75 (AFSCME) filed this complaint on August 3, 1999, and amended it on November 5. The amended complaint alleged that the State of Oregon, Department of Public Safety Standards and Training (DPSST) unilaterally changed its background check procedure, in violation of ORS 243.672(1)(e). DPSST filed an answer on November 10, in which it admitted and denied portions of the complaint and asserted two affirmative defenses.

The issues are:

  1. Did DPSST unilaterally change its background check procedure for existing bargaining unit members, in violation of ORS 243.672(1)(e)?
  2. Did DPSST unilaterally change its background check procedure by conditioning job retention upon: (a) completion of a background information form and (b) passing the background investigation? If so, did that conduct violate ORS 243.672(1)(e)?

RULINGS

  1. Motion to dismiss and to strike allegations. On September 21, 1999, DPSST filed a motion to dismiss or to strike allegations in the complaint. AFSCME responded on October 6, and DPSST replied on October 8. On October 12, the ALJ properly ruled that an issue of fact or law existed that warranted a hearing. The ALJ correctly denied the motion to strike, stating that DPSST could object at hearing to testimony that it considered irrelevant.
  2. Motion to amend complaint. On October 15, AFSCME filed a motion to amend the complaint to allege that DPSST's unilateral changes violated employees' privacy rights under the U.S. Constitution. DPSST responded on October 19, arguing that amendment was not appropriate because the hearing was then scheduled for November 2. On October 22, AFSCME argued that DPSST could not have been surprised by the new allegation. Simultaneously, AFSCME agreed to a setover of the hearing. DPSST responded further on October 25. After rescheduling the hearing, the ALJ properly allowed AFSCME to amend its complaint, with the requirement that it make the proposed amendment more definite and certain. AFSCME filed an amended complaint on November 5.
  3. Motion to quash. On October 19, DPSST filed a motion to quash subpoenas issued by AFSCME's counsel, arguing that the documents sought were irrelevant. AFSCME responded on October 22, contending that the materials were relevant. DPSST responded further on October 25.

The Board permits a party to subpoena information that is of "general relevance" and "reasonable scope" to the issues in a complaint; OAR 115-10-055(1). Except as noted, the ALJ ruled properly on the motion to quash the following subpoenas:

a. Blank forms for performing original-hire background checks for corrections officer, state police officers, nonsworn state police clericals, and nonsworn corrections clericals. The practice of other state agencies is not relevant to a complaint that DPSST's alleged unilateral change violated the PECBA. Disparities in background questionnaire disclosure requirements may be due to differing workplace operations and management priorities. Motion to quash granted.

b. Blank background check forms for applicants seeking promotion to corrections sergeant, state police sergeant, and another classification in the Department of Corrections (DOC) and State Police. For the reasons stated in paragraph a, motion to quash granted.

c. Background check materials regarding bargaining unit employees Judy Keller and Diane Woods, DPSST Executive Director Middle, and employees promoted in the past two years. Complainants assert that they do not have copies of the blank and completed forms Keller and Woods were directed to complete. To the extent that DPSST used a completed form to rescind their promotions, the completed form appears to be relevant and the motion to quash was properly denied. Middle is not similarly situated to Complainants; her background materials are irrelevant. Motion to quash granted.

d. Job announcements for certain positions in DPSST, corrections, and state police over the past year. AFSCME did not establish why this information is relevant. Motion to quash granted.

e. Documentation of pressure on DPSST employees by unscrupulous persons over the past five years. DPSST established passing a background check as a criterion or qualification required for a promotion. At hearing, DPSST established that it based some of its questions on its desire to avoid promoting applicants who are subject to pressure from outside parties. The ALJ incorrectly quashed AFSCME's subpoena. Our decision of this complaint, however, would not turn on that evidence.

f. Communications between DPSST and a background check contractor for bargaining unit positions. To the extent that DPSST used communications from a contractor to rescind any of the affected employees' promotions, the completed form is relevant and the motion to quash was properly denied.

  1. Offers of proof. After the ALJ quashed some of the subpoenas, AFSCME requested the opportunity to present certain offers of proof at hearing. The ALJ correctly granted that request and properly specified that the offers of proof were to be submitted in writing. AFSCME submitted an offer of proof about the background procedure in effect at the Oregon DOC.

During the hearing, AFSCME filed a supplemental offer of proof in rebuttal to testimony provided at hearing by agency Executive Director Middle. AFSCME stated that "no other state agency has made the type of intrusive [background check] inquiries made here" and offered to prove details about the background procedure used at the Oregon Parole Board. (Offer at 2-3.)

  1. Subpoena. AFSCME subpoenaed witnesses to testify. Some of those witnesses were in the hearing room before being called to testify. DPSST directed the employees to return to work, until called to testify. AFSCME requested the ALJ to order DPSST to permit the employees to remain in the hearing room, until called to testify. DPSST objected to that request and stated that it would produce the subpoenaed employees, when they were called to testify.

The ALJ ruled, correctly, that he did not have the authority to order subpoenaed individuals to remain in the hearing room when they were not testifying. Under this Board's rules and statutory authority, a public employer has the prerogative to assign its employees, subject to producing a subpoenaed, on-duty employee to provide testimony at a time designated by the ALJ.

  1. The ALJ's other rulings were reviewed and are correct.

FINDINGS OF FACT

  1. AFSCME, a labor organization, is the exclusive representative of a bargaining unit of personnel employed by DPSST, a public employer. DPSST is the agency that provides training and certification to employees of Oregon police, fire, and corrections agencies; see generally ORS 181.610 to 181.712. The purpose of the agency "is to promote and advance the highest level of professionalism in the delivery of public safety services throughout the state of Oregon." (Exhibit C-3 at 2.)
  2. AFSCME and DPSST were parties to a 1997-1999 collective bargaining agreement. (Exhibit C-1.) The parties extended its effective date to August 31, 1999. (Exhibit C-23.) The bargaining unit includes all classified employees of the agency, excluding managerial, supervisory, confidential, temporary, certain part-time employees, and certain program trainers who provide classroom instruction. (Exhibit C-1 at 1, Article 1.)

The collective bargaining agreement contains provisions regarding:

a. Promotion: "The parties agree that the Employer and the Agency have the right to operate and manage the agency, including, but not limited to, the right: * * * to recruit, examine, select and hire employees; [and] to promote * * * employees; * * *." (Exhibit C-1 at 1.)

b. Discipline: "No employee who has completed the initial trial service period shall be disciplined or dismissed without just cause." (Exhibit C-1 at 7.)

c. Filling of vacancies: "The employee is responsible for preparation for advancement and qualifying for promotion within the bargaining unit. It shall be the employee's responsibility to see that he/she has taken the appropriate tests and is active on the appropriate list." (Exhibit C-1 at 10.)

d. Trial service: "At any time during the [six month] trial service period, the Agency may remove an employee if, in the judgment of the Agency, the employee is unable or unwilling to perform his/her duties satisfactorily or if, in the judgment of the Agency, his/her habits and dependability do not merit his/her continuance in the position." (Exhibit C-1 at 10.)

e. Work out of classification. (Exhibit C-1 at 11-14.)

The collective bargaining agreement does not contain any "personal life" provision regarding employees' off-duty conduct.

  1. Since 1997, DPSST management has included Executive Director Middle, Deputy Director Alan Sharn, and Personnel Officer Paul Koch.
  2. Prior to 1997, DPSST received negative publicity after certain instructors made controversial comments about individuals in protected classes. (Exhibit C-27.)
  3. DPSST hired some of its current employees without performing a background investigation. Since at least 1996, DPSST has required outside applicants to complete a background information form (BIF). (Testimony of Koch and Exhibit C-2.) A background investigator uses a BIF as the starting point in reviewing a promotion applicant's suitability for employment. (Testimony of Middle.)
  4. When she became executive director, Middle reviewed DPSST's hiring and promotion practices, formed an opinion that they were not satisfactory, and initiated changes to create an open and competitive recruitment process.

Middle believes that requiring all promotion applicants to pass a background investigation enhances the reputation of agency management with DPSST's constituent police, fire, and corrections agencies. Other agencies expect DPSST to maintain in confidence, the confidential information of their employees. Middle believes that requiring a background investigation of DPSST employees will reassure those agencies of the reliability of DPSST as an agency.

In addition, she believes that a background investigation can produce information that indicates whether a promotion applicant will be reliable, fit in the workplace, be suitable for the work, respect confidences, and have an acceptable level of integrity.

  1. The 20-page BIF requires disclosure of the information described in italics:

a. Personal data, including race,(1) sex, distinguishing marks, or features. DPSST established that obtaining race and sex information is standard practice in background investigations. DPSST uses race information in the criminal background check process for the purpose of verifying identification. DPSST has information about current employees' race, sex, and Social Security numbers in the employees' personnel files. A promotion applicant's distinguishing marks and features include readily visible scars and tattoos; DPSST could use that information to differentiate between people with the same name.

b. Traffic records. This information is also contained in public records. DPSST considers traffic records as one indicator of an individual's temperament and lifestyle.

c. Arrest records of (1) the promotion applicant and (2) "any member of your family, including in-laws or anyone else with whom you are closely associated, or with whom you have lived * * *." DPSST considers those records to be public records that can reflect an individual's integrity and trust. DPSST believes that a promotion applicant's association with people who have been arrested could adversely affect DPSST's reputation and that individuals with whom DPSST employees associate could coerce them into obtaining confidential information about police officers from DPSST's database.

d. Personal history, including names and addresses of former spouses, the reason for divorces, child support obligations, names of siblings, and names of in-laws. DPSST wants to know the reason for a divorce to determine whether the former spouse might be hostile. DPSST established at hearing that it considers "incompatibility" as an acceptable response as the reason for a divorce.

e. Residences since age 17, and names and relationship of persons with whom the promotion applicant lived. DPSST asserts that this information can reflect an individual's stability.

f. Military service. DPSST seeks this information as an element of a promotion applicant's work history.

g. Education. DPSST considers educational attainment to be a reflection of an individual's motivation, commitment, and follow through, and the level of a promotion applicant's education is one factor considered in the selection process. The agency believes that some promotion applicants embellish their actual educational attainments. A promotion applicant's falsification of this information would reflect on the individual's integrity. (Exhibit C-15.)

h. References who are not related by blood or marriage. DPSST contends that this information assists it in determining how a promotion applicant has acted over a long period of time and is another check for integrity and truthfulness.

i. Employers since age 17, description of disciplinary action taken against the promotion applicant, and consent for DPSST to contact the applicant's current employer. DPSST asserts that details about a promotion applicant since age 17 are appropriate for a thorough understanding of the applicant's conduct.

j. Financial: monthly income (applicant and spouse) and list of assets. To DPSST, this information indicates dependability and reliability and can be reassuring to the agency if the promotion applicant is hired and works with public funds. In addition, the information can reflect whether the applicant has a gambling problem or is apt to be subject to pressure to obtain additional funds.

k. Credit history: list of creditors and reason for debt. In obtaining this information, DPSST attempts "to assess the degree to which an individual might be vulnerable to being compromised" and to look "for patterns of financial difficulties or excessive debt that might lead to unethical or illegal conduct." (Exhibit C-15 at 3-4.)

l. Personal questions: including debts assigned to collection agencies, bankruptcy, repossessed property, and use of illegal drugs or non-prescribed controlled substances. Responses to these questions, DPSST contends, may signal areas for its background investigator to investigate further.

m. Personal interests, such as hobbies, recreational activities, and involvement in civic organizations. DPSST wants to know if the promotion applicant will fit with current employees, provide new perspectives, or be a loner, and may use this information to select between similarly-qualified applicants.

n. Special skills, such as fluency in a language other than English. DPSST may use this information as a tie-breaker in selecting a promotion applicant.

o. Summary of "your experience, training, knowledge, skills and abilities which, in your opinion, establish your fitness for service in the [DPSST]. * * *."

p. Release for DPSST to investigate the applicant's credit, character, personal history, medical information,(2) academic record, job performance, criminal arrest and conviction, and school records. (Exhibit C-2.)

  1. On May 11, 1999, Middle announced that employees who had been promoted or were seeking promotion would be required to complete the agency's BIF.
  2. Later on May 11, AFSCME demanded that DPSST bargain regarding both the decision to implement the background check procedure and the impact of that decision on the employment terms of bargaining unit personnel. AFSCME also demanded that DPSST maintain the status quo that existed before adoption of the background check procedure. (Exhibit C-7.)
  3. AFSCME Representative Greg Schneider believes that DPSST implemented the promotional background check procedure in an overreaction to earlier adverse publicity, and in an attempt to improve the agency's image with its constituents and the public.
  4. On June 11, DPSST refused to bargain over the policy, stating that the policy applied to current employees only if they had not previously completed a BIF for the agency. DPSST also asserted that the policy did not change any employment terms. (Exhibit C-13.)
  5. Three bargaining unit employees sought promotions within the bargaining unit and DPSST directed them to complete all or part of the BIF:

Deborah Henderson--working out of classification/promotion. DPSST hired Henderson without conducting a background investigation. She is an office specialist 2 in a data entry operator position. She maintains a database of Oregon police, fire, and corrections employees. In that position, she has conducted Law Enforcement Data System (LEDS) checks for hundreds of police officers who have taken DPSST classes. (Testimony of Henderson.) DPSST assigned Henderson to work out of class in a vacant administrative specialist position.(3) (Exhibits C-4 at 133 and R-2.) While in that assignment, she applied for the permanent bargaining unit position. The position description states that the incumbent must be able to be certified to use the LEDS. (Exhibit C-4 at 136.)

As part of the application process, DPSST required Henderson to complete a BIF. She refused to complete the form. Henderson objected to providing information, as required by the BIF, regarding other individuals: she wants to keep her work and personal lives separate. As a result of not completing the BIF, DPSST did not promote her and instead hired another person for the vacancy. (Exhibit R-15.) On September 10, the agency returned Henderson to her former position as an office specialist 2.(4) (Exhibits R-4, R-5, and R-6.)(5)

Judy Keller--new hire. In July 1997, DPSST hired Keller as a temporary contract employee. In February 1998, when DPSST hired her as a bargaining unit accounting technician, it did not tell her that she would be subject to a background investigation before completing her six-month trial service period. In that position, Keller had no access to the agency's criminal records database. (Exhibit C-3.) However, she works with some sensitive financial information. (Testimony of Deb Holmberg.)

During Keller's trial service period, DPSST requested her to complete a BIF. Nothing in Keller's job performance raised security questions. (Testimony of Holmberg.) Keller completed her trial service period in September 1998, without having completed the BIF.

In December 1998, DPSST Supervisor Holmberg directed Keller to complete a BIF. She refused to complete it. Holmberg told Keller that Keller's resistance to completing the form jeopardized Holmberg's position with upper management. Due to the number of conversations they had about the BIF, Holmberg asked whether Keller was refusing to complete it, and Holmberg developed concerns about Keller's reliability. Keller felt pressured and thought--reasonably under the circumstances--that DPSST would terminate her if she did not complete the BIF. In the spring of 1999, Keller completed portions of the form in a manner that was acceptable to Holmberg.

Diana (Phillips) Woods(6)--promotion. DPSST hired Woods in 1986 as an office specialist. In February 1999, DPSST announced a recruitment for a bargaining unit administrative specialist 1 working in a curriculum specialist position. The announcement specified that applicants were subject to "a thorough background investigation" and that the position requires "a valid driver's license and a good driving record" or an acceptable alternate method of transportation.(7) (Exhibit R-1.)

The curriculum specialist works with materials that Middle wants to keep confidential, including the curriculum taught by DPSST instructors (regarding police officer survival skills, weapons use, and interrogation techniques used when interviewing criminal suspects) and tests administered in DPSST classes.(8) Some individuals have requested DPSST to disclose those materials under the Oregon Public Records Law. DPSST has resisted disclosure and has released some materials to some individuals only under protective court orders.(9)

Woods applied for promotion to the curriculum specialist position. On March 17, she began working out of class in that position. (Exhibit R-7.) Later, DPSST promoted her to the position, subject to completion of a trial service period and the BIF. (Exhibit R-8.) Woods left portions of the BIF blank and signed the form's medical background, educational background, and credit check authorizations under protest.

Woods discussed her objections to the BIF with Middle, who explained why DPSST requested the information. Middle did not require Woods to disclose or provide a release for some portions of the BIF, because Woods provided some of that information directly to Middle; Woods was a 12-year employee; Middle had access to some of the information from other sources; and Middle did not want to deny the promotion to Woods, who had previously applied for--and Middle suspected may inappropriately have been denied--promotions. (Testimony of Woods and Middle, and Exhibits C-10, C-11, and R-2.)

On July 21, however, DPSST indicated that it would terminate Woods' trial service period and return her to her former position, if she did not complete certain portions of the BIF. (Exhibits C-16 and R-12.) On July 29, Woods signed the required document, which DPSST had modified from the original format. (Exhibits C-17 through C-21.) Effective October 26, DPSST appointed Woods to the permanent position. (Exhibits R-10 and R-11.)

  1. When DPSST directed Henderson, Keller, and Woods to complete the BIF, they were regular employees who occupied responsible positions. The agency had no cause to suspect that they had engaged in or might engage in wrongdoing.
  2. DPSST employs some temporary employees and work-study students to perform work generally performed by AFSCME bargaining unit employees. DPSST does not require those individuals to complete a BIF. (Testimony of Schneider.) The agency does require certain temporary employees to pass LEDS and Department of Motor Vehicles (DMV) records checks. Temporary employees who are not LEDS-certified, do not have access to certain DPSST's LEDS and police officer files. (Testimony of Koch and Middle.) DPSST grants temporary employees and work-study students access to some agency records, depending on where they are assigned to work. (Testimony of Koch and Middle.)(10)
  3. Since at least 1997, DPSST has used a procedure to assure the security of BIFs. When an employee submits a BIF to the agency, the human resources division director copies the original, places the copy in a locked file cabinet, and gives the original to a background investigator. After completing the investigation, the investigator returns the original to the agency, which places it in an evidence bag that is locked in a file cabinet. At that point, DPSST shreds the copy of the BIF. The agency retains the original BIF and destroys it after ten years, in accordance with the State Archivist's retention schedule. (Testimony of Koch and Exhibit R-16.)

Under those procedures, the agency director, deputy director, background investigator, and an employee's immediate supervisor, at all material times, have been able to review employee BIFs. (Testimony of Holmberg.)

  1. AFSCME Local President Brian Kauffman, a DPSST curriculum coordinator, and Deputy DPSST Director Sharn determined, prior to the hearing of this complaint, that the agency's procedure for maintaining the confidentiality of the BIFs was satisfactory. (Testimony of Kauffman)
  2. The record does not indicate what DPSST has told bargaining unit employees generally about the BIF security measures. The agency told Keller that her BIF would be sealed and put in a locked drawer. The record does not indicate whether DPSST told Henderson and Woods about the measures, when it directed them to complete the BIFs. (Testimony of Koch.)
  3. Bargaining unit employees have concerns that DPSST may not retain the BIFs in a secure location, where confidentiality can be assured, and that the BIFs may be read by personnel who are not principals in the hiring process.
  4. BIFs contain personal information. ORS 192.502(2) provides that one type of information exempt from disclosure under ORS 192.410 to 192.505 is: "Information of a personal nature, such as but not limited to that kept in a personal, medical or similar file, if the public disclosure thereof would constitute an unreasonable invasion of privacy, unless the public interest by clear and convincing evidence requires disclosure in the particular instance."

CONCLUSIONS OF LAW

  1. This Board has jurisdiction over the parties and subject matter of this dispute.
  2. DPSST's refusal to bargain its decision to require promotion applicants to complete a background information form did not violate ORS 243.672(1)(e).
  3. DPSST unilaterally changed the status quo regarding promotion of employees within the AFSCME bargaining unit, without bargaining to completion about the effect of that decision on employment relations, in violation of ORS 243.672(1)(e).
  4. DPSST required Henderson, as a condition of being promoted, to disclose certain confidential information, in violation of ORS 243.672(1)(e).
  5. DPSST required Keller, as a condition of retaining regular classified employee status, to disclose certain confidential information, in violation of ORS 243.672(1)(e).
  6. DPSST required Woods, as a condition of continuing in the promotion trial service period and retaining promotion status, to disclose certain confidential information, in violation of ORS 243.672(1)(e).
  7. A civil penalty is not appropriate.

Discussion

DPSST requires all applicants for employment to complete a BIF. As of May 1999, the agency began to require all current employees who have not completed a BIF, but apply for promotion within the AFSCME bargaining unit, to complete a BIF.

AFSCME alleges that DPSST violated ORS 243.672(1)(e) by unilaterally imposing the BIF requirement on current employees who apply for promotions and have not previously completed the questionnaire.

We conclude that DPSST lawfully made the decision to require the BIF disclosures. However, DPSST violated ORS 243.672(1)(e) by refusing to bargain the effect of that decision. In addition, the agency violated ORS 243.672(1)(e) by requiring disclosure of certain information that an individual is entitled to keep private.

I. Scope of bargaining analysis

Under ORS 243.650(7) of the Public Employee Collective Bargaining Act (PECBA), a bargaining proposal or unilateral change is mandatory, permissive, or prohibited for bargaining.

If DPSST's change of the bargaining unit promotion procedure--requiring disclosure of certain information--involves a mandatory subject of bargaining, DPSST has a duty to bargain over the decision to mandate those disclosures. If the questionnaire disclosure requirement involves a permissive subject of bargaining, DPSST has no duty to bargain over the decision to mandate those disclosures but does have a duty to bargain, on demand, over the effect of that decision. If the questionnaire disclosure requirement involves a prohibited subject of bargaining, it is unlawful and cannot lawfully be implemented.

In 1995, the legislature amended ORS 243.650(7), superseding the then-existing method of determining whether a bargaining proposal or unilateral change was mandatory or permissive. As amended in 1995, ORS 243.650(7) provides, in part:

"(7)(a) 'Employment relations' includes, but is not limited to, matters concerning direct or indirect monetary benefits, hours, vacations, sick leave, grievance procedures and other conditions of employment.

"(b) 'Employment relations' does not include subjects determined to be permissive, nonmandatory subjects of bargaining by the Employment Relations Board prior to June 6, 1995.

"(c) After June 6, 1995, 'employment relations' shall not include subjects which the Employment Relations Board determines to have a greater impact on management's prerogative than on employee wages, hours, or other terms and conditions of employment.

"(d) 'Employment relations' shall not include subjects that have an insubstantial or de minimis effect on public employee wages, hours, and other terms and conditions of employment.

"* * * * *

"(f) For all other employee bargaining except school districts, 'employment relations' expressly excludes staffing levels and safety issues (except those staffing levels and safety issues which have a direct and substantial effect on the on-the-job safety of public employees), scheduling of services provided to the public, determination of the minimum qualifications necessary for any position, criteria for evaluation or performance appraisal, assignment of duties, workload when the effect on duties is insubstantial, reasonable dress, grooming, and at-work personal conduct requirements respecting smoking, gum chewing, and similar matters of personal conduct at work, and any other subject proposed that is permissive under paragraphs (b), (c) and (d) of this subsection." (Emphasis added.)

This Board described its post-1995 scope of bargaining analysis in Springfield Police Association v. City of Springfield, Case No. UP-28-96, 16 PECBR 712, 721 (1996), AWOP 147 Or App 729 (1997):

"Under our case law, a typical scope-of-bargaining dispute requires this Board to answer two questions concerning a negotiations proposal: (1) What is the subject of the proposal? (2) Is that subject mandatory or permissive for bargaining? The answer to the latter question may be found in the express wording of the statute or in this Board's precedents. Where the subject is not enumerated in the statute and has not been previously adjudicated, this Board employs the balancing test to determine the status of the subject." (Footnote omitted.)

The 1995 amendments to the PECBA altered our ORS 243.672(1)(e) scope of bargaining analysis. We now consider only the subject of an issue or proposal, not specific underlying facts relating to an unilateral change issue or bargaining proposal.

II. DPSST's decision to require disclosures--permissive bargaining subject

To determine whether DPSST's decision to require completion of the BIF is subject to bargaining before being adopted, we must consider questions arising under several subsections of ORS 243.650(7).

A. Under ORS 243.650(7)(b), does the scope of bargaining issue involve a subject that was determined to be a permissive or nonmandatory subject of bargaining by this Board prior to June 6, 1995?

This Board reviewed the bargainability of various promotion proposals in AOCE v. Oregon Department of Corrections, Case No. UP-91-93, 14 PECBR 832, AWOP 133 Or App 602 (1995), rev.den. 321 Or 268 (1995). In balancing the interests of employees and employers in the promotion process, this Board stated:

"Whether a bargaining proposal that concerns promotions addresses a 'condition of employment'--and therefore is mandatory for bargaining--will depend on its relative effects on working conditions and management's interests in the workplace involved. * * * Generally, however, proposals dealing with the creation of and qualifications for higher-ranking positions will have greater effects on basic rights of management and will be only permissive for bargaining, while proposals primarily concerned with allowing bargaining unit members to take advantage of the promotional opportunities created by management will have greater effects on employee conditions of employment and will be mandatory." 14 PECBR at 868-69.

On the merits, this Board held permissive those aspects of the promotion proposals that related to applicant qualifications and the rating process. This Board held mandatory those elements of the proposals that involved notice, clarity, and fairness in the promotion process. 14 PECBR at 869-70.(11)

However, none of the proposals in Department of Corrections involved the narrow issue presented in this case--required employee disclosures of certain personal information. Accordingly, that decision is not on point and ORS 243.650(7)(b) does not exclude DPSST's questionnaire disclosure requirement from mandatory bargaining.

B. Under ORS 243.650(7)(c), does the issue involve a subject which this Board "determines to have a greater impact on management's prerogative than on employee wages, hours, or other terms and conditions of employment"?

Management has the right to decide what qualifications are required for employment. To determine whether an applicant possesses certain qualifications, DPSST can ask the applicant for certain information. DPSST can screen applicants--thereby determining whether they meet the employer's qualifications for a position--based on their responses to lawful questions that involve job-related considerations.

As stated in AOCE, above, "proposals dealing with the creation of and qualifications for higher-ranking positions will have greater effects on basic rights of management and will be only permissive for bargaining * * *." 14 PECBR at 868. In this case, ORS 243.650(7)(c) clearly provides that the questionnaire disclosure requirement is a permissive subject of bargaining.

C. Under ORS 243.650(7)(f), does the issue involve the employer's "determination of the minimum qualifications necessary for any position * * *"?

As discussed above, DPSST's decision to require applicants to complete the BIF, and pass management's review of the answers, clearly involves a determination of the minimum qualifications for promotional positions. ORS 243.650(7)(f) provides that the questionnaire disclosure requirement is a permissive subject of bargaining.(12)

D. Under ORS 243.650(7)(d), does the issue include subjects that have an insubstantial or de minimis effect on public employee wages, hours, and other terms and conditions of employment?

Because ORS 243.650(7)(c) and (f) exclude from bargaining, DPSST's decision to require the questionnaire disclosures, we need not decide whether ORS 243.650(7)(d) also excludes that decision from bargaining.

III. Effect of DPSST's decision to require disclosures--mandatory subject

Even where an employer's decision is permissive and not subject to collective bargaining, a public employer has a duty to bargain the effect of that decision on mandatory subjects of bargaining, before implementing the decision.(13)

Immediately after DPSST announced that applicants for promotion were required to disclose information on the BIF, AFSCME demanded to bargain both the agency's decision to implement the background check procedure and the effect of that decision on the employment terms of bargaining unit personnel. DPSST refused to bargain.

Because Henderson refused to complete the BIF, DPSST rejected her promotion application. DPSST imposed the disclosure requirement on Keller after she completed her trial service period; she resisted completing the BIF but eventually--to retain her position--did complete it. Because Woods initially refused to make the required disclosures, DPSST gave her an ultimatum that her continued refusal would result in denial of a promotion.

Therefore, DPSST's implementation of the disclosure requirement clearly affected the bargaining unit employment and promotion opportunities for Henderson, Keller, and Woods. Promotions generally result in changes in wages, a mandatory subject of bargaining.

DPSST changed the promotion procedure by imposing a very broad disclosure requirement. The agency argues that requiring applicants to complete the BIF was simply one "qualification" for the position sought and that public employers have the right to establish qualifications. While generally employers do have that authority, they nonetheless must bargain the effect of changes in qualifications on mandatory subjects of bargaining.(14) In addition, as discussed in section IV, the law prohibits public employers from establishing certain qualifications.

DPSST's refusal to bargain the effect of its decision to require BIF information disclosures for individuals seeking promotion within the bargaining unit (Henderson and Woods), violated its ORS 243.672(1)(e) duty to bargain in good faith. DPSST's refusal to bargain the effect of that change on individuals who were already hired into a regular position (Keller) also violated section (1)(e).

To remedy that violation, we shall order DPSST to bargain with AFSCME about the effect of the mandatory disclosure requirement on employment relations. Pending completion of the bargaining process, we shall order the agency to return to the status quo and to cease and desist from requiring applicants for promotions within the bargaining unit, and employees who have completed trial service, to complete BIFs. In returning to the status quo, we will require DPSST to offer Henderson the promotion for which she applied and would have received, but for the BIF disclosure requirement.

IV. Employer conduct involving prohibited subjects of bargaining

A. PECBA provisions and caselaw

AFSCME also argues that DPSST's unilateral implementation of the new BIF requirement is a prohibited subject of bargaining, because the BIF requires personnel who apply for bargaining unit promotions to disclose information that AFSCME argues is protected by a constitutional right of privacy.

An employer cannot lawfully implement a policy involving a prohibited subject of bargaining. This Board has stated that a prohibited subject of bargaining is "one which would require either party to do an illegal act or perform an act which is contrary to any other statutory or constitutional provision * * *." Springfield Education Association v. Springfield School District, Case No. C-278, 1 PECBR 347 (1975).

More recently, we stated:

"[A] prohibited subject is not one for which specific statutory authority is lacking; rather it is one which is specifically contrary to statute or would require a party to act contrary to statute. Put another way, it is not the absence of statutory authority that makes a subject prohibited, it is the presence of a statutory violation or a requirement that a statute be violated." Eugene Police Employees Association v. City of Eugene, Case No. UP-5-97, 17 PECBR 299, 304 (1997), affirmed 157 Or App 341 (1998), rev.den. 328 Or 418 (1999).

AFSCME argues that the bargaining unit employees' right to privacy prohibits DPSST from requiring that promotion applicants disclose information that is within applicants' protected zone of privacy and prohibits DPSST from making promotion decisions based on such information.

B. Constitutional right to privacy or confidentiality

The federal courts have held that citizens have a right to privacy or confidentiality in certain matters. The U.S. Supreme Court described a right to privacy in Griswold v. Connecticut, 381 US 479, 483 (1965): "[T]he First Amendment has a penumbra where privacy is protected from governmental intrusion."

In a later privacy decision, Whalen v. Roe, 429 US 589 (1977), the Court held that a state did not violate the U.S. Constitution by maintaining records of the names of individuals who obtained prescriptions for certain drugs.

In another privacy decision, the Court stated that "public officials * * * are not wholly without constitutionally protected privacy rights in matters of personal life unrelated to any acts done by them in their public capacity." Nixon v. Administrator of General Services, 433 US 425, 457 (1977). The Court held that, even assuming that former President Richard Nixon had a legitimate expectation of privacy in particular materials, the public interest in preserving certain documents was sufficiently important to uphold the statute that required disclosure.

Several federal circuit courts have held that public employees have a right to confidentiality or privacy regarding certain information sought by their public employers, but a balancing of interests requires some disclosures.(15) In contrast, several federal circuit courts have questioned or rejected privacy challenges to information disclosure requirements.(16)

C. Test for review of AFSCME complaint

Based on our analysis of the above decisions, this Board concludes that a right of confidentiality exists for current AFSCME-represented employees who apply for promotions within the bargaining unit (and those who are already employed in regular classified service), subject to DPSST's greater interest in obtaining certain information. That right is based upon not simply the amorphous constitutional right to privacy but rather, as described in the cited decisions, on the First Amendment right to freedom of speech and association and the Fourteenth Amendment right to liberty.(17)

In this case, DPSST obtains some personal information about public safety officers who attend agency classes, and the agency wants to keep that information confidential. Public safety officers could be exposed to criminal conduct, in their private lives, if personal information (such as their home addresses) were inappropriately revealed by DPSST employees. In addition, DPSST develops and teaches police strategies to officers. If that information were disclosed to lawbreakers, law enforcement officers could be placed at risk.

All employers have a legitimate interest in employing only trustworthy employees, but DPSST has a heightened interest in assuring the confidentiality of certain information it possesses. To assure the confidentiality and security of that information, DPSST has a strong interest in minimizing the possibility of hiring or promoting untrustworthy or corrupt individuals into positions with access to the information. To address its interest in employing only employees who can be trusted with the noted confidential information, DPSST imposed the BIF disclosure requirements.(18) In doing so, DPSST established successful completion of the BIF as one of the qualifications or conditions for promotion.

We also consider the interests of current employees who apply for promotion into positions with access to that confidential information. As described in the decisions cited above, citizens have a strong interest in maintaining the privacy of certain personal information.

To determine whether a public employer can lawfully require an applicant for promotion within a bargaining unit to disclose certain information, during the application process, we consider the following factors:

(1) The reasonableness of the promotion applicant's expectation of privacy or confidentiality about particular information (the more personal the information, the more reasonable the expectation of privacy);

(2) The availability of the information from other sources (an individual does not generally have a reasonable expectation of privacy regarding information that is readily available elsewhere, such as in public records);

(3) The employer's legitimate or compelling interests in the information, based upon the duties to be performed by an employee in the promotional position (different degrees of disclosure are appropriate for support staff, administrative, supervisory, managerial, executive, public safety, military, and national security positions);

(4) Whether the scope of the required disclosure is narrowly tailored to meet the employer's legitimate or compelling interests;

(5) If disclosure is otherwise appropriate, the adequacy of the employer's measures to assure the confidentiality of the required disclosures (the more security measures the employer provides for the information and the more limited its availability within management, the less intrusion a required disclosure makes on a promotion applicant's privacy interest); and

(6) The adequacy of the employer's announcement to employees of the measures taken to assure the confidentiality of the required disclosures (before employees can be required to disclose otherwise protected information, the employer must inform them of the security measures that are in place).

Ultimately, we determine whether an employer's interest in obtaining particular information outweighs an employee's interest in confidentiality.

D. Analysis

Considering those factors, we analyze AFSCME's challenges to the disclosure of the particular information that DPSST requires.

a. Personal data, including race, sex, distinguishing marks or features. DPSST has information about the race and sex of promotion applicants (who are current employees) in their personnel files. From being on-the-job, applicants' generally visible, distinguishing marks and features are apparent to others. As a result, those applicants have no reasonable expectation that DPSST would not have that information and disclosure is required. To the extent that the BIF requires disclosure of "distinguishing marks and features" that a promotion applicant does not expose while at work, that information is not job-related and amounts to an unreasonably detailed manner of identifying an applicant for promotion to a support staff position. Considering the six factors described above, DPSST cannot lawfully require an applicant to disclose that very personal information.

b. Traffic records. DPSST asserts simply that traffic records may indicate an individual's temperament and lifestyle. The record contains no evidence that an individual's traffic record reflects untrustworthiness or corruption. The position description for one (and, likely, all) of the positions, however, requires "a good driving record" or other means of transportation. To the extent that an employee in a particular position may be required to drive, DPSST has a legitimate interest in that information. Further, we assume that DPSST has access to traffic records through LEDS. Accordingly, promotion applicants do not have a reasonable expectation that such records would be confidential. DPSST can require a promotion applicant to disclose this information.

c (1). Arrest records of the promotion applicant. DPSST contends that arrest records reflect an individual's integrity and trust, but the record does not establish that connection; an individual is presumed innocent until proven guilty of a charge.(19) However, arrest information is subject to disclosure under ORS 192.501(3), and we assume that DPSST can obtain those records through LEDS. Promotion applicants, therefore, do not have a reasonable expectation that such records are confidential. DPSST can require promotion applicants to disclose information about their arrests.

c (2). Arrest records of "any member of [the promotion applicant's] family, including in-laws or anyone else with whom you are closely associated, or with whom you have lived * * *." A promotion applicant has no reasonable expectation of confidentiality of the names of the applicant's family members (which can be obtained through a review of vital statistics public records), close associates, and domestic associates (whose names often can be obtained through employees' references and other required disclosures). DPSST, in contrast, has a strong interest in obtaining those names: the AFSCME support staff at issue in this case has access to sensitive information, and the agency may obtain some significant information about applicants' conduct through investigating the conduct of people close to an applicant. Once the agency has those names, it may conduct whatever investigation (including a LEDS inquiry) that is lawful.

DPSST did not show that employees in the support staff positions at issue have a legal requirement to disclose arrest records of other individuals.(20) While DPSST can require a promotion applicant to disclose that individual's own arrest records, the agency cannot mandate the disclosure of others' arrest records. Citizens have the freedom to associate with persons of their own choosing. Requiring an applicant to disclose the arrest records of other persons could tend to chill the applicant's ability to associate freely with those individuals.

d. Personal history, including names and addresses of former spouses, the reason for divorces, child support obligations, names of siblings, and names of in-laws. For the reasons described above, DPSST is entitled to require promotion applicants to disclose the names of siblings and in-laws. DPSST demonstrated no legitimate interest, however, in obtaining information about former spouses, the reason for divorces, and child support obligations for applicants for promotion into these support staff positions. An applicant's divorce and child support information may be in public records, reducing somewhat the applicant's expectation that such generally private information would be confidential. Applicants for support staff positions are not required to provide this highly personal information.

e. Residences since age 17, and names and relationship of persons with whom the promotion applicant lived. DPSST has a legitimate interest in obtaining the names of persons with whom applicants for support staff positions live or recently lived, but it demonstrated no legitimate interest in obtaining this more extensive historical census information from them. An applicant can lawfully be required to disclose information about the applicant's current, and two most recent, residences and domestic associates.

f. Military service. A promotion applicant has no reasonable expectation of privacy regarding prior employment in the military.

g. Education. When applying for a promotion that requires some level of education, a promotion applicant has no reasonable expectation of privacy regarding his or her level of education.

h. References who are not related by blood or marriage. A promotion applicant obviously has no reasonable expectation that an employer will not contact individuals who know the applicant, particularly where the applicant specifies the references to be contacted.

i. Employers since age 17, description of disciplinary action taken against the promotion applicant, and consent for DPSST to contact the applicant's current employer. To determine an applicant's general suitability for promotion, DPSST has a strong interest in knowing the applicant's entire work history. An applicant has no reasonable expectation of privacy regarding any prior employment. Regarding consent to contact an applicant's current employer, DPSST is the current employer.

j. Financial: monthly income (applicant and spouse) and list of assets. DPSST states that it seeks this information as an indication of a promotion applicant's dependability, reliability, trustworthiness with public funds, potential gambling problems, and likelihood of needing additional funds. While a direct question about an applicant's experiences in gambling (or treatment for excessive gambling) may be narrowly-tailored enough to be appropriate, DPSST did not ask such a limited question. DPSST did not establish such an interest in the personal finances of applicants for support staff promotions as to warrant disclosure of the broad information sought. Applicants are not required to provide this information.

k. Credit history: list of creditors and reason for debt. DPSST seeks disclosure of this information "to assess the degree to which an individual might be vulnerable to being compromised" and to look "for patterns of financial difficulties or excessive debt that might lead to unethical or illegal conduct." (Finding of Fact 7.k.) Promotion applicants, to the contrary, have a significant interest in maintaining the privacy of this personal information.

The record contains no evidence that an applicant's credit history would reflect untrustworthiness or corruption or would affect the applicant's job performance. The requested information goes beyond what is reasonably required in reviewing the promotion applications of current employees for support staff positions (Henderson and Woods)and in continuing the employment of an employee who had completed trial service employee (Kelley).(21) DPSST did not establish an interest in this information sufficient to require such detailed personal finance disclosures from these employees. They are not required to provide this information.

l. Personal questions: including debts assigned to collection agencies, bankruptcy, repossessed property, and use of illegal drugs or non-prescribed controlled substances. DPSST's rationale for this information (it "may signal areas for DPSST's background investigator to investigate further," Finding of Fact 7.l.), does not explain the value of this information to a background investigator or why the agency has a legitimate interest in the information.

Mandating an answer to the drug use question could implicate the Fifth Amendment right against self-incrimination.(22) DPSST did not establish that it has a greater interest in obtaining information about the personal finances and drug use of promotion applicants for support staff positions than the applicants have in maintaining their privacy. Applicants are not required to provide this information.

m. Personal interests, such as hobbies, recreational activities, and involvement in civic organizations. A promotion applicant has no reasonable expectation of privacy regarding hobbies and recreational activities. As to civic organization involvement, information obtained from this disclosure requirement could be used to disqualify promotion applicants who participate in lawful organizations disfavored by management, thereby violating applicants' First Amendment right of free association and Fourteenth Amendment right to liberty. DPSST did not show that any of this information is job-related. DPSST's interest in this information is clearly less than an applicant's right to maintain that information in confidence.(23)

n. Special skills, such as fluency in a language other than English. A promotion applicant has no reasonable expectation of privacy regarding his or her ability to speak another language.

o. Summary of "your experience, training, knowledge, skills and abilities which, in your opinion, establish your fitness for service" with DPSST. A person applying for a promotion with DPSST obviously has no reasonable expectation of privacy regarding this information.

p. Release for DPSST to investigate the promotion applicant's credit, character, personal history, medical information, academic record, job performance, criminal arrest and conviction records, and school records. We addressed, above, the areas of credit, character, personal history, academic record, job performance, criminal arrest and conviction, and school records. Regarding an applicant's medical condition, DPSST has not established a legitimate reason to obtain that information from applicants for support staff promotions.(24) Each applicant has a particularly strong interest in maintaining the confidentiality of her personal medical condition and is not required to disclose it.(25)

V. Defenses

A. Completion of BIF disclosures as employment "qualification"

DPSST also asserts that completion of the BIF is a "qualification" for promotion and that it has the contractual right to establish qualifications. However, any contract language authorizing DPSST to establish employment qualifications is void to the extent that it purports to authorize actions that are unconstitutional.

As analyzed above, the BIF required the disclosure of some information that individuals have the constitutional right to refuse to disclose.(26) To the extent that DPSST requires, as an employment "qualification," the mandatory disclosure of information that is private under the U.S. Constitution, that "qualification" is void.(27)

B. Bargaining already completed. DPSST argues that the parties have already negotiated to completion, regarding the alleged unilateral change. (Amended answer, paragraph 13.) The parties' collective bargaining agreement contains provisions regarding management's rights in promotions and hiring, discipline for just cause, filling of vacancies, trial service, and working out of classification. (Finding of Fact 2.)

In OSEA v. Astoria School District, Case No. UP-52-91, 13 PECBR 474, 480 (1992), this Board stated that it will conclude that an employer has exhausted its ORS 243.672(1)(e) duty to bargain "concerning the subject matter of a dispute when an extant written agreement includes a provision that is specifically relevant to the issue in dispute."(28) In such situations, the Board reasoned, the exclusive representative can grieve alleged contract violations, and those disputes can be resolved through the parties' grievance procedure.

This Board discussed Astoria in OSEA v. Klamath County School District, Case No. UP-18-92, 14 PECBR 1 (1992). In that case, the parties' contract contained an article that stated that the "usual workday" consisted of eight hours and that an employee's reporting time would be established by a supervisor. 14 PECBR at 3. During the term of the contract, the employer changed an employee from a split shift (with mostly day-shift hours) to a straight shift (with mostly evening hours).

This Board stated that the employer's change resulted in a difference in work hours, both in degree and in kind. We concluded that the contract language did not indicate that the parties had exhausted bargaining over the subject of work-shift schedules: "[T]he employer's defense that it completed bargaining, if evidenced solely by the parties' contract, must rely not simply on some specifically relevant language but enough of such language to carry its burden of proving that bargaining has been completed." 14 PECBR at 6 (emphasis in original).

More recently, in AFSCME Local 2909 v. City of Albany, Case No. UP-26-98, 18 PECBR 26, 37 (1999), we stated that our role, in this type of ORS 243.672(1)(e) unilateral change/refusal to bargain case, is "to determine the amount of bargaining that took place rather than ruling on the substance of the parties' bargain." (Emphasis in original.) In addition, we explained that we may conclude that an employer has exhausted its bargaining duty "regardless of whether the contract language would be sufficient to allow a grievance arbitrator to rule on the merits of the dispute." 18 PECBR at 37, n. 3.(29)

This Board's determination of whether the parties have exhausted bargaining on a subject has evolved from Astoria to Albany. The 1999 Albany decision indicates that we will not require that a contract contain specific language on a particular subject in order to conclude that the employer has fulfilled its bargaining obligation for the term of a collective bargaining agreement.

In this case, the State asserts that the noted contract provisions are specifically relevant to the dispute and that the parties negotiated to completion over the subject of promotions. We disagree. The parties' collective bargaining agreement contains terms that only minimally address some promotion issues. We infer that the amount of bargaining over that subject also was minimal. By agreeing to those skeletal terms, AFSCME did not waive its right to bargain over the effect of DPSST's decision to require the BIF disclosures in the promotion process.

C. Failure to state a claim. DPSST also argues that paragraphs 24, 25, and 26 of AFSCME's complaint failed to state a claim. Those paragraphs allege that DPSST's BIF required disclosure of information that is within employees' constitutional right to privacy.

Paragraphs 24 of the complaint alleges that the required disclosures "violated employees' [constitutional] rights to privacy * * * and thus constituted an unlawful change in a prohibited subject of bargaining," in violation of ORS 243.672(1)(e). Paragraph 25 of the complaint cites authorities and presents arguments in support of paragraph 24. Paragraph 26 asserts a related fact. The complaint stated a claim of a section (1)(e) violation. We reject this defense.

VI. Remedy

The remedy we order will return the parties to the status quo. Had DPSST not required Henderson to complete the BIF, the record indicates that the agency would have promoted her. Under the circumstances, to effectuate the purposes of the PECBA, we shall order DPSST to promote her and to make her whole.(30)

VII. Civil penalty

AFSCME requests this Board to order DPSST to pay a civil penalty. AFSCME argues that it informed DPSST's counsel that the agency was requiring employees to complete the BIF and that the agency did not rescind that requirement. In its complaint, AFSCME contends that DPSST "knew or should [have] known of its duty to bargain at least over the impacts of adopting this policy and committed a knowing and egregious violation of the PECBA."

OAR 115-35-075 provides that a civil penalty may be awarded when this Board "finds that the party committing an unfair labor practice did so [1] repetitively, knowing that the action taken was an unfair labor practice and took such action disregarding that knowledge; or [2] that the action constituting an unfair practice was egregious * * *."

For an action to be "repetitive," this Board must have held previously that this employer previously engaged in the same unlawful activity. See AOCE v. Department of Corrections, Case No. UP-7-98, 18 PECBR 64, 74 (1999). AFSCME did not make that showing. Further, DPSST asserted plausible defenses, and this is a case of first impression. We deny AFSCME's request for a civil penalty.

PROPOSED ORDER

  1. DPSST shall cease and desist from requiring current employees to complete background information forms, pending completion of the collective bargaining process over the effects of DPSST's implementation of the disclosure requirement on mandatory subjects of bargaining.
  2. DPSST shall cease and desist from requiring an employee seeking promotion to disclose information regarding: (a) the employee's distinguishing marks and features that are not exposed while at work; (b) arrest records of members of the employee's family, close associates, or domestic associates; (c) names and addresses of former spouses, the reason for divorces, and child support obligations; (d) residences and names and relationship of domestic associates, other than information about the employee's current, and two most recent, residences and domestic associates; (e) monthly income of the promotion applicant and spouse and list of their assets; (f) list of creditors and reasons for debts; (g) debts assigned to collection agencies, bankruptcy, repossessed property, and use of illegal drugs or non-prescribed controlled substances; (h) involvement in civic organizations; and (i) medical information.
  3. DPSST shall, within seven days of the date of this Board's final order, return to Henderson, Keller, and Woods, their respective original background information forms and any copies made of those forms.
  4. DPSST shall, within 14 days of the date of this Board's final order, expunge from all agency files and records, any information derived from the background information forms completed by Henderson, Keller, and Woods.
  5. DPSST shall promote Henderson to a position as administrative specialist, effective on the date that the agency hired another individual into that position, and shall make her whole.
  6. The remaining elements of the complaint are dismissed.

 

SIGNED AND ISSUED this 19th day of May 2000.

1. AFSCME sought to question Middle about the presence of "race" on the BIF. The ALJ sustained DPSST's objection to that question. In an offer of proof, AFSCME stated that Middle would testify that, based on Oregon Bureau of Labor and Industries' guidelines, public employers should not ask applicants about their race. We can and do take notice of those guidelines, which are included in the record. (See Exhibits C-24 at 1 and C-25 at 1.) Middle's testimony, accordingly, was not necessary or would have been cumulative.

2. On June 11, DPSST sent AFSCME a copy of DPSST's June 10 letter, stating that the agency "does not obtain or review medical records in the background check" and that "the reference to 'medical records' will be removed from the release form." (Exhibit C-14.) DPSST did not require applicant Woods to sign a medical information release.

3. The DPSST-AFSCME collective bargaining agreement provides that, when the agency assigns an employee "for a limited time period to perform the major distinguishing duties of a position at a higher level classification for ten (10) consecutive calendar days," the employee will be paid "at the next higher step in the employee's current classification or the first step of the higher salary range, whichever is greater." (Exhibit C-1 at 11.)

4. AFSCME argues that the evidence shows that DPSST required Henderson to complete the BIF as a condition of retaining her working out of class assignment. Considering all of the evidence, including the timing of her return to her original position, we find that completion of the BIF was a condition of Henderson's promotion to the permanent position, and not a condition of retaining the temporary work-out-of-class position.

5. In its post-hearing brief, DPSST asserts that, at hearing, Henderson "testified forthrightly that based upon her experience in the 'work-out-[of]-class' assignment, she did not want the job, and so advised" the hiring manager. (Brief at 5.) [The ALJ's notes and recollection do not support that assertion. Upon preparation of a transcript, DPSST can review the testimony and present that assertion to the Board.]

6. As of the hearing date, Phillips had changed her name to Diana Woods. We refer to her as Woods.

7. Woods established that she had seen prior announcements, but not the text of this announcement. The terms of this announcement were binding, whether or not she saw them.

8. The Public Records Law exempts from disclosure test information and certain public safety operations information; ORS 192.501(4) and (18).

9. DPSST has disclosed the curriculum materials to some police agencies, with the understanding that those agencies will not duplicate the materials.

10. We base this Finding of Fact on testimony provided by Middle, the agency's executive director. Because she is the director, Middle is in a better position than AFSCME Representative Schneider or bargaining unit employees to have direct knowledge of the duties formally assigned to temporary personnel throughout the agency and whether DPSST has required those individuals to complete a BIF or be LEDS-certified. Middle established that DPSST's temporary and work-study students are not LEDS-certified and that DPSST would be in violation of its contract to have access to LEDS, if individuals who are not LEDS-certified had access to LEDS. (Given the importance to DPSST of access to LEDS records, we presume that DPSST would take all steps to avoid violating the LEDS contract.) Temporary and work-study students do have access to some agency records, other than the LEDS records. (Surrebuttal testimony of Middle.)

Bargaining unit employee Henderson testified that, in performing bargaining unit work, some temporary employees and work-study students do have access to DPSST's database. She has worked with three work-study students whom she said had access, without supervision, to officer files and computer records. Henderson does not know whether DPSST required those work-study students to complete a BIF. (Rebuttal testimony of Henderson.) Bargaining unit employee Keller testified that one particular temporary employee has access to the timesheets of all DPSST personnel and is not supervised while working at the temporary employee's computer. Keller testified that another temporary employee has access to the agency's entire database and is not supervised while at the temporary employee's computer. Woods testified that a temporary employee compiles and mails curriculum material and types class test questions.

Whether we credit the testimony of Middle or the bargaining unit employees, we base our decision of the issues on factors other than DPSST's application of the BIF requirement to temporary employees and work study students.

11. For other discussions of promotion issues, see Coos Bay Police Officers' Association v. City of Coos Bay, Case No. UP-61-92, 14 PECBR 229, 234 (1992); OPEU v. State of Oregon, Case No. UP-64-87, 10 PECBR 51, 69, 74-75 (1987) ("our cases have equated intra-unit transfers (and promotions) with hiring standards and assignment of duties, which are permissive subjects"); Gresham Grade Teachers Association v. Gresham Grade School District, Case No. C-61-78, 5 PECBR 2771, 2793 (1980) (filling of bargaining unit vacancies); and Springfield Education Association v. Springfield School District, Case No. C-278, 1 PECBR 347, 351 (1975) ("[s]tandards for transfer, the reasonableness of the standards, and the assignment of teachers to specific positions are proper managerial functions of a school board and * * * are * * * merely permissive subjects for bargaining").

12. In section IV, we discuss limitations on a public employer's ability to establish qualifications.

13. See AFSCME v. Wasco County, 46 Or App 859 (1980), affirming 4 PECBR 2397 (1979); Coos Bay Firefighters Association v. City of Coos Bay, Case No. UP-41-98, 18 PECBR 515 (2000); Coos Bay School District Declaratory Ruling, Case No. DR-7-86, 9 PECBR 9039 (1986), AWOP 86 Or App 540 (1987); FOPPO v. Corrections Division, Case No. C-57-82, 7 PECBR 5649, 5654 (1983); Greater Albany Education Association v. Greater Albany School District, Case No. C-6-80, 5 PECBR 4158, 4166 (1980); IBEW v. City of Forest Grove, Case No. C-201-75, 4 PECBR 2168, n. 16 (1979); and IAFF v. City of The Dalles, Case No. C-25-76, 2 PECBR 759, 769 (1976).

In Corrections Division, this Board stated that, in some situations, both a decision and the impact of the decision are permissive for bargaining; 7 PECBR at 5654, paragraph A. As an example, this Board cited OSEA v. North Bend School District, Case No. C-1-81, 6 PECBR 4887 (1981). This Board subsequently reversed North Bend School District, in OPEU v. State of Oregon, Case No. UP-64-87, 10 PECBR 51, 90 (1987).

We also note that, in OPEU v. State of Oregon, one OPEU proposal imposed a financial penalty when the State exercised its assignment authority (a permissive subject of bargaining) in a particular manner. This Board determined that, "where an employer is not required to bargain at all concerning a certain management prerogative [that is a permissive subject of bargaining], it should not be required to bargain over a provision that would penalize it for exercising that prerogative." 10 PECBR at 78. (Emphasis in original.) Based on that rationale, this Board determined that both the decision and impact elements of that particular proposal were permissive, as contemplated by the Corrections Division discussion noted at the outset of this footnote.

Nonetheless, this Board reiterated in OPEU v. State of Oregon that "[w]here the exercise of a management prerogative has an impact on 'employment relations,' that impact may have to be bargained about * * * ." 10 PECBR at 78 n.8, citing Corrections Division, 7 PECBR at 5654.

14. ORS 243.672(1)(e) requires bargaining over the effect of a decision when an employer significantly changes employee job duties. See AFSCME (Busam and Coyle) v. Department of State Police, Case No. UP-74-97, 17 PECBR 715 (1998), and IBEW v. City of Forest Grove, Case No. C-201-75, 4 PECBR 2168, 2174 (1979). When an employer seeks to adopt a drug testing program (where drug-free status is job qualification), section (1)(e) requires effects bargaining over the procedures to be used. See FOPPO v. Department of Corrections, Case No. UP-117-89, 14 PECBR 693, 704 (1993).

15. See Norman-Bloodsaw v. Lawrence Berkeley Laboratory, 135 F3d 1260, 75 FEP Cases 1695 (CA 9 1997) ("[t]he constitutionally protected privacy interest in avoiding disclosure of personal matters clearly encompasses medical information and its confidentiality"); Walls v. City of Petersburg, 895 F2d 188 (CA 4 1990) (court balanced diversion program administrator's reasonable expectation of confidentiality against employer's compelling interests in obtaining certain information); Fraternal Order of Police v. City of Philadelphia, 812 F2d 105 (CA 3 1987) (due to duties of police special investigations unit, promotion applicants required to disclose certain medical, financial, arrest, and family members' information but not the names of organizations of which applicant or family members were members; to mandate disclosures, employer must adopt written policies and safeguards; 815 P2d at 118); Thorne v. City of El Segundo, 726 F2d 459, 471 (CA 9 1983), cert.den. 469 US 979 (1983) (polygraph examiners questions about police officer applicant's sexual history violated applicant's constitutional rights); Barry v. City of New York, 712 F2d 1554, 1559 (CA 2 1983), cert.den. 464 US 1017 (1983) (upholding a financial disclosure requirement); United States v. Westinghouse Electric Corp., 638 F2d 570, 577-80 (CA 3 1980) (while constitutional right to privacy exists for medical records, employer interest in protecting employee safety warranted examination); and Plante v. Gonzalez, 575 F2d 1119, 1132, 1134 (CA 5 1978), cert.den. 439 US 1129 (1979) (noting a "right to confidentiality" and concluding that a balancing of interests is necessary).

16. See American Federation of Government Employees v. HUD, 118 F3d 786 (CA DC 1997) (after expressing "grave doubts as to the existence of a constitutional right of privacy in the nondisclosure of personal information," the court held that the government did not violate it on the facts of the case, even assuming existence of the right); Doe v. Wigginton, 21 F3d 733, 740 (CA 6 1994) (no general right to nondisclosure of private information); and J.P. v. DeSanti, 653 F2d 1080, 1089-90 (CA 6 1981) (refusing to recognize "a general constitutional right to have disclosure of private information measured against the need for disclosure").

17. This Board has the authority to decide whether a statute is unconstitutional; Nutbrown v. Munn, 311 Or 328, 346, 811 P2d 131 (1991), cert. den. 502 US 1030 (1992). In Cooper v. Eugene School District, 301 Or 358, 364, 723 P2d 298 (1986), appeal dismissed 480 US 942 (1987), the court stated: "[i]t would be pointless to reverse an agency for correctly deciding a [constitutional] legal question on the ground that the agency should have waited for the reviewing court to decide the question." In addition, the court wrote: "[a]n agency ordinarily can interpret a statute so as to exclude unconstitutional applications before it is forced to question the statute's validity." 301 Or at 365. See also Monroe Elementary Education Association v. Monroe School District, Case No. UP-49-90, 13 PECBR 54, 77-78 (1991).

18. DPSST also has other options to assist in protecting its confidential records. In addition to imposing the BIF requirement, DPSST can initiate prosecution of individuals who disclose certain information. ORS 162.305, 162.405, 162.415, and 162.425 mandate criminal sanctions for tampering with public records, official misconduct, and misuse of confidential information. Further, DPSST could discipline employees who disclose certain information. The parties' collective bargaining agreement provides that DPSST can discipline an employee for just cause. (Exhibit C-1 at 7.)

19. DPSST--as the agency that trains and certifies Oregon police officers--does have a significant interest in knowing whether a promotion applicant has been convicted of a crime. Because that information can be obtained in court records, an applicant would not have a reasonable expectation of confidentiality as to that information. However, the BIF does not require applicants to disclose criminal convictions.

20. Compare Jefferson County School District v. Fair Dismissal Appeals Board and Kari, 102 Or App 83, 793 P2d 888(19), aff'd and remanded 311 Or 389, 812 P2d 1384 (1991), aff'd after remand to FDAB, 120 Or App 99, 852 P2d 235 (1993), rev.den. 318 Or 25 (1993), in which the courts reviewed a teacher's termination for "neglect of duty," under ORS 342.865(1)(d), for failing to report her spouse's use of their home to grow and sell marijuana.

21. Compare Fraternal Order of Police v. City of Philadelphia, 812 F2d 105 (CA 3 1987). In that case, to investigate rampant police corruption, the employer created a special investigation unit in its police department. The court held that, because of the unique duties and pressures on officers selected to positions in that unit, the employer could require disclosure of certain information that other employees are not required to disclose. DPSST has shown no comparable business need for requiring promotion applicants for support staff promotions, to disclose all of the information required by the BIF.

22. In National Federation of Federal Employees v. Greenberg, 983 F2d 286, 291-93 (CA DC 1993), an illicit drug-use question appeared on a questionnaire presented to civilian employees with security clearances at the "secret" level. DPSST did not show that it had formally adopted any similar clearance requirements for the support staff promotional positions or that such a clearance was reasonably required.

23. See American Federation of Government Employees v. Schlesinger, 443 FSupp 431, 434 (1978), in which Judge Gerhard Gesell stated: "In this immediately post-Watergate period, the view exists that conflicts of interest can be expunged by forcing intimate disclosures from those dealing with or acting for the government. Within limits this may be sound, but we must beware lest excessive zeal in this direction destroy more precious fundamental values. People, even people working for the government, have within reason the right to be left alone. * * * Assemblies of personal information should not automatically occur at the whim of every bureaucrat."

24. DPSST has stated an intention to remove the BIF reference to medical records in the future. However, that provision was on the form presented to Henderson, Kelly, and Woods. That aspect of the complaint, therefore, is not moot. Because DPSST did not require applicant Woods to sign a medical information release, that element of the complaint is dismissed as to her complaint.

25. In Fraternal Order of Police v. City of Philadelphia, 812 F2d 105, 112-16 (CA 3 1987), the court held that applicants for a police special investigation unit were required to release medical information, because the evidence indicated that those positions can be physically stressful. DPSST did not show such demands on these support staff positions.

26. DPSST argues that the PECBA "does not prohibit a public employer from unilaterally adopting an unconstitutional policy. It prohibits an employer from unilaterally adopting a policy that is 'mandatory for bargaining.'" (Brief at 14.) We disagree with the first point and agree with the second.

27. Similarly, DPSST could not establish other employment "qualifications" that were unconstitutional or otherwise unlawful, such as requiring employees to agree to plead guilty if ever arrested or to refrain from engaging in activity in support of AFSCME.

28. Where a union simultaneously files a grievance over the same dispute, this Board maintains jurisdiction, but postpones further action, pending completion of the grievance procedure. See 13 PECBR at 479.

29. See also Lincoln City Police Employees' Association v. City of Lincoln City, Case No. UP-43-98, 18 PECBR 323, 344 at n.10 (1999), where we repeated that observation.

30. We described the calculation of a make-whole order in Vilches and Central Education Association v. Central School District, Case No. UP-74-95, 17 PECBR 792 (1998).