[9-26-00] Lane County Peace Officers' Association v. Lane County. ORS 243.672(1)(e), ORS 243.672(1)(a) and (b). Case No. UP-28-00
The case was submitted to the Board by stipulated record and written argument on August 2, 2000.
Rhonda Fenrich, Attorney at Law, Garrettson, Goldberg, Fenrich & Makler, 423 Lincoln Street, Eugene, Oregon 97401, represented Complainant.
David B. Williams, Assistant County Counsel, Office of Legal Counsel, Lane County, 125 East 8th Avenue, Eugene, Oregon 97401, represented Respondent.
The Lane County Peace Officers' Association (Association) and Lane County (County) were parties to a collective bargaining agreement that expired on June 30, 1999. Negotiations for a successor agreement were unsuccessful and the Association declared impasse on September 15, 1999.
After one mediation session, the Association initiated interest arbitration. The parties selected Mark Downing to serve as the arbitrator.
The arbitrator held a hearing and issued a decision in which he awarded the County's last best offer (LBO). The Association requested the County to join in asking the arbitrator to clarify the award. The County rejected the Association's request. The Association requested the arbitrator to clarify the award, but he declined because both parties did not join the request.
On May 10, 2000, the Association notified the County that the Association would refuse to implement the award or sign a contract reflecting the award. The Association reiterated its refusal after the County prepared a collective bargaining agreement that reflected the arbitration award. On June 15, the County began to implement its draft of the contract.
The Association filed this unfair labor practice complaint on June 19, 2000, alleging that the County violated ORS 243.672(1)(e) by unilaterally implementing the disputed contract. The Association also alleged that the County violated ORS 243.672(1)(a) and (b) by meeting with part of the bargaining unit concerning the implemented contract. At the same time it filed the unfair labor practice complaint, the Association filed a petition for declaratory ruling with this Board. Case No. DR-1-00. The petition sought a ruling that the arbitration award did not comply with the requirements of ORS 243.746 and was unenforceable under ORS 243.752.
This Board dismissed the petition for declaratory ruling and set a hearing on the unfair labor practice complaint. The parties agreed that no evidentiary hearing was necessary and submitted the dispute on the basis of the documents attached to the complaint, the parties' arbitration briefs, and written argument.
The issues are:
(1)Did the County unlawfully implement a contract based on the interest arbitration award?
(2)Did the County interfere with, restrain, or coerce bargaining unit members by meeting with them concerning implementation of a contract based on the interest arbitration award?
(3)Did the County dominate or interfere with the existence or administration of the Association by meeting with certain bargaining unit members concerning implementation of a contract based on the interest arbitration award?
For the reasons explained below, we conclude that the interest arbitration award is valid and enforceable, and that the County did not unlawfully implement a contract based on the award. We also conclude that the Association did not prove the (1)(a) and (1)(b) allegations. The complaint will be dismissed.
Having the full record before it, this Board makes the following:
RULINGS
The parties agreed to waive an evidentiary hearing and rely on the documents submitted with the complaint, plus their respective briefs to the arbitrator. The documents, attached to the complaint, and numbered 1 through 11, are received as Joint Exhibits 1 through 11. The Association's arbitration brief is received as Joint Exhibit 12, and the County's arbitration brief is received as Joint Exhibit 13.
FINDINGS OF FACT
In Deschutes County and Deschutes County Sheriff Association (Lankford, 1996), Arbitrator Lankford first discussed the secondary factors, because they are objective factors supported by hard data, but concluded that the secondary factors have to be viewed in light of the public interest factor, and none of the secondary factors can outweigh the public interest factor.
In Clackamas County and Clackamas County Peace Officers Association (Dorsey, 1998), Arbitrator Dorsey accepted the employer's argument that an interest arbitrator, in applying the public interest factor, must defer to the public officials' determinations of public interest, unless the labor organization can establish, by the secondary factors, that deference is unwarranted.
In City of Oregon City and Oregon City Firefighter's Association (Abernathy, 1999), Arbitrator Abernathy, in deciding a single issue health insurance dispute, concluded that the public's interest was best served by adopting the employer's LBO, because of costs and inefficiencies associated with the union's LBO. Abernathy did not consider the secondary factors.
In City of Eugene and Eugene Police Employees Association (Keltner, 2000), Arbitrator Keltner turned to dictionary definitions of the terms "public interest" and "public welfare" and concluded that the essence of the public interest factor was contained in the secondary factors. He then analyzed the issues on the basis of the secondary factors, including a determination of how each issue affected the public interest.
19. Arbitrator Downing concluded his discussion of the public interest and welfare factor with this observation:
"After SB 750, the 'interest and welfare of the public' must be viewed in the broader perspective of all of the citizens of a community, not just the views of the public employer or the union representing the public employees. The question becomes: How would selection of the union's last best offer package, or the employer's last best offer package affect the citizens of a community?"
20. The arbitrator devoted several pages to a discussion of evidence concerning the public interest, mainly a report offered by the County. The report was from a task force appointed by the County to consider the services provided the County and funding sources for those services. The report concluded that, due to the County's deteriorating financial condition, funding for services was too low. With respect to public safety, the report found that resources were insufficient and more money was needed. In response to the report, the County placed tax levies on the November 1998 and 1999 ballots, but both were defeated.
21. Both parties urged the arbitrator to adopt a balancing test to determine the public interest. The Association argued that the public interest factor is intended to provide quality services at a reasonable price, a result best obtained by balancing the six secondary factors with particular emphasis on comparable communities. The County also advocated balancing the secondary factors, but with particular emphasis on the ability to pay and the ability to attract and retain qualified personnel.
22. The arbitrator discussed the six secondary factors in the order of their importance to the award.
Concerning ability to pay, the arbitrator found that the costs of the Association's proposal for the first two years were $315,000 more than the costs of the County's, a figure that increased because the Association's proposal included a third year. He held that "[t]he County's cry of poverty is supported by credible evidence."
Concerning the ability to attract and retain qualified employees, the arbitrator held: "It does not appear from a review of this data that the County is experiencing a low number of applicants for available openings, or a high rate of employee turnover."
Concerning the overall compensation of employees, the arbitrator noted disagreement between the parties about the elements of compensation that should be used in calculating the factor. After reviewing the statutory language, he adopted the elements suggested by the Association. In analyzing the evidence submitted by the parties, however, he concluded that the County's evidence was more persuasive.
Concerning comparisons to employees in comparable communities, the arbitrator adopted the comparables proposed by the Association in its post-hearing brief and by the County at hearing: Clackamas County; Marion County; Washington County.(2) He said that, whether he used data supplied by the County or the Association, bargaining unit compensation was between 3.6 percent and 8.5 percent below that of the comparable communities. Because the County already lagged its comparables and was proposing only a two percent increase, the arbitrator concluded that: "The overall compensation of comparable communities strongly favors selection of the Association's last best offer package."
Concerning cost of living, the arbitrator noted that the parties failed to provide cost of living evidence for January 1999, but he accepted the Association's claim that the January 2000 cost of living index was 2.8 percent. He concluded that the Association's wage proposal was only modestly above the index figure and that "[t]he County's 2% increase for July 1, 2000 will not allow employees to keep up with the effects of inflation."
Concerning stipulations of the parties, the arbitrator found that they presented no formal stipulations. He noted, however, that comparison of the LBOs indicated that they were in agreement on four issues.
"Interest and Welfare of the Public
"The interest arbitration statute separates the 'interest and welfare of the public' from the six secondary criteria. An interest arbitrator must initially give primary and separate consideration to the 'interest and welfare of the public.' The 'interest and welfare of the public' cannot be equated with a mere balancing of the secondary criteria. The 'interest and welfare of the public' includes information from community members concerning the issues in dispute between the parties.
"Lane County voters in recent years have twice rejected tax increase ballots for law enforcement activities. Votes such as these demonstrate the level of importance that community members attach to certain public services. It is not in the 'interest and welfare of the public' to impose higher costs on the County at this time, given the County's difficulty in passing bonds and levies, and the uncertainty of relief efforts by Congress to replace declining O&C revenues. The Arbitrator finds that it is in the 'interest and welfare of the public' to select the last best offer package of the County.
"Secondary Criteria
"The Arbitrator has also considered the six secondary criteria. The two criteria of ability to pay, and ability to attract and retain employees, favor selection of the County's last best offer package. The County's finances are in poor shape, and at least for now, the County is not experiencing problems in attracting and retaining qualified personnel. The two criteria of overall compensation presently received by employees, and the overall compensation of comparable communities, favor selection of the Association's last best offer package. The County's overall compensation will likely fall behind the comparables by between 4% to 8%, depending on an employee's years of service, by the end of this 1999-2001 agreement. The two criteria of cost of living, and the stipulations of the parties, do not favor either the Association or the County.
"The Arbitrator finds that it is appropriate to give greater weight to certain secondary criteria. At the present time, the County's inability to pay supercedes the importance of the overall compensation paid by the comparables. The length of the parties' agreement favors the County's proposal. Given the County's current financial state, a two-year agreement with definite costs is preferable to a three-year agreement with unknown costs for the third year. However, if the County's finances were slightly better, the secondary criteria would support the Association's proposal. The Arbitrator finds that the secondary criteria favor selection of the last best offer package of the County."
CONCLUSIONS OF LAW
DISCUSSION
This case presents the somewhat anomalous situation of a labor organization "appealing" from an interest arbitration award, a circumstance on which we could find only one prior Board decision.(3) The Association raises its challenge to the award indirectly, alleging in the complaint that the County unlawfully implemented a contract based on the interest arbitration award.
If the award complies with the requirements of ORS 243.746(1) and is supported by substantial evidence, then it is enforceable, and the County cannot be guilty of unlawful conduct by unilaterally implementing a contract based on it. The necessary predicate for the Association's ORS 243.672(1)(e) charge is a conclusion that the award is invalid and unenforceable.
The complaint also alleges violations of ORS 243.672(1)(a) and (b).(4) The basis of those claimed violations is a meeting that allegedly occurred between a County labor relations manager and employees in the County's Department of Youth Services, who are represented by the Association. According to the Association, the meeting constituted unlawful direct dealing because it undermined the Association's status as the employees' representative.
The interest arbitration award issued by Arbitrator Mark Downing is based upon the ORS 243.746 factors and is supported by substantial evidence. Because the arbitration award is valid and enforceable, the County did not unlawfully implement a contract based on the award.
The parties submitted their bargaining dispute to interest arbitration and the arbitrator awarded the County's LBO. The County prepared a contract based on the award and presented it to the Association for signature. The Association refused to sign and filed this unfair labor practice complaint, alleging that the County's implementation of the contract was unlawful because the arbitration award was unenforceable. If the award satisfies the requirements of ORS 243.752(1), it is enforceable, and the County's implementation of a contract based on the award cannot be unlawful. The question we must answer is whether the award satisfies the requirements of ORS 243.752(1).
ORS 243.752(1) provides, in 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. * * *"
In Oregon City Police Employees Association v. City of Oregon City, Case No. UP-9-89, 11 PECBR 343 (1989), this Board determined that the statute requires a "* * * review [of] the merits of an interest arbitration award to the extent of determining whether the award is supported by substantial evidence and whether the arbitrator based the award on the factors listed in ORS 243.746(4)." Id at 350. The main focus of the Association's complaint is that the arbitrator did not base the award on the ORS 243.746(4) factors because he did not consider the County's entire LBO.(5)
ORS 243.746(4) requires an interest arbitrator to base the award on eight factors, giving first priority to the "interest and welfare of the public" and second priority to the remaining factors. These priorities were established by the 1995 amendments to the PECBA. In the intervening years, there have been 39 interest arbitration awards issued. It would not be much of an exaggeration to say that there have been 39 different interpretations of the ORS 243.746(4) factors.
It is not the role of this Board to police interest arbitrators' various interpretations for correctness. "Our role is to determine whether the arbitrator applied the statutory factors, not whether he or she did so in the manner we would have." Eugene Police Employees' Association v. City of Eugene, Case No. UP-8-00, 18 PECBR 673, 683 (2000).
In discussing the "interest and welfare of the public" factor, the arbitrator recognized that prior interest arbitrators had taken different approaches in interpreting and applying it. After concluding that the factor should be applied by considering the impact of each party's LBO on the community as a whole, he reviewed the evidence submitted by the parties on that point. The primary evidence before him was a County task force report concerning services and revenue sources, and the fact that the County had unsuccessfully sought tax increases based on the recommendations of the task force.
Both parties urged the arbitrator to determine the "interest and welfare of the public" by balancing the secondary factors. The Association wanted the arbitrator to give special emphasis to comparability factors in the balancing, while the County wanted him to give greater emphasis to ability to pay and ability to attract and retain qualified personnel.
The arbitrator did prioritize and discuss the secondary factors, especially as applied to economic issues in dispute, but in his conclusion, he rejected the parties' suggestion that the "interest and welfare of the public" was best divined by balancing the secondary factors. Instead, based on evidence about the community's failure to support tax levies for public safety, the arbitrator concluded that the interest and welfare of the public would not be served by imposing higher costs on the County than those in its LBO. He concluded: "[t]he Arbitrator finds that it is in the 'interest and welfare of the public' to select the last best offer package of the County." Although he went on to find that the secondary criteria also favored selection of the County's LBO, he could have ended the award after his initial conclusion.(6)
The statute requires the arbitrator to give first priority to the interest and welfare of the public. The arbitrator here interpreted that factor as requiring him to consider the impact of the competing LBOs on the community. That decision was within the arbitrator's discretion, and we will not substitute our judgment for his.
The Association argues that, in the decision, the arbitrator outlined only portions of each party's LBO, yet proceeded with his analysis as though he was discussing each party's entire LBO. Specifically, the Association claims that the arbitrator failed to consider the County's entire LBO because his summary of the parties' LBOs does not reference the first four items from that LBO.(7) Those items are as follows:
"1.Include all T.A.'s.
"2.Include all unilateral concessions made by Lane County in its November 23, 1999 Final Offer as follows:
"* * * * *
"3.Include remaining current contract Articles except as delineated below.
"4.Exclude permissive proposals/language as previously identified at:
Art. 2.3, Art. 2.6, Art. 6.7, Art. 12.12, Art. 13.5."
It is certainly true, as the Association says, that the arbitrator did not discuss these items in his award. The question is whether there was any need for such discussion. We hold that there was not.
The Association does not complain about the arbitrator's failure to discuss the first three of these items, and we do not understand the Association to object to the inclusion of these items in a contract. The Association's dispute centers on the fourth item, in which the County proposed to exclude certain contract language the County claimed was permissive.
The County devoted several pages of its arbitration brief to a discussion of the specific language that it claimed was permissive. The County also pointed out to the arbitrator this Board's holding in Springfield Police Association v. City of Springfield, Case No. UP-17/20-97, 17 PECBR 260, reconsid 17 PECBR 319, reconsid 17 PECBR 368 (1997), that an interest arbitration award containing a permissive item will generally be unenforceable.
The Association's arbitration brief included a discussion of only one of the items identified by the County as permissive. Even that discussion did not address the County's claim that particular language was permissive.
The arbitrator clearly was aware of the County's claims. The first two sentences of his summary of the County's position are:"The County emphasizes the statutory directive of ORS 243.746(3) and (4) that an award may only be issued on mandatory subjects of bargaining. The County argues that the Association's last best offer package is unenforceable, as it includes numerous permissive subjects."
It is not surprising that the arbitrator did not include an analysis of the disputed items in his decision for two reasons. First, it is the responsibility of this Board, not interest arbitrators, to determine the permissive status of disputed bargaining proposals.(8)
In addition, the County claimed the proposals were permissive, and its arbitration brief cites and discusses evidence concerning its permissiveness claims. The Association failed to rebut--or even respond to--the County's claims. Given the one-sided nature of the debate about the disputed proposals, there was nothing for the arbitrator to analyze. Under the circumstances, especially given the arbitrator's conclusion that the interest and welfare of the public dictated selection of the County's LBO, it was not unreasonable for him to omit any discussion of the disputed permissive issues.
Likewise, there was nothing unreasonable about the arbitrator's failure to discuss the other items: tentative agreements, the County's final offer concessions, the Association's proposal regarding youth services, and existing unmodified contract language. Neither party made arguments nor produced evidence about the tentative agreements, the County's final offer concessions, nor continuation of existing unmodified contract language. The Association's arbitration brief does not cite or discuss evidence in support of its youth services proposal.
Other than the County's evidence and arguments about the permissive nature of certain Association proposals, the evidence before the arbitrator concerned the issues he listed. He acknowledged the County's permissiveness arguments in his decision. Nothing more was required on that item or the other items he did not discuss because those items did not determine the outcome of his decision.
An interest arbitrator must consider all the evidence presented and then decide which LBO best effectuates the purposes and policies of the PECBA, as detailed in ORS 243.746. There is, however, no requirement that an interest arbitrator discuss and analyze all the evidence presented in an interest arbitration hearing, just as there is no requirement that an interest arbitrator apply all of the eight factors to each issue in the LBOs. An arbitrator must discuss and analyze those issues that are determinative in selecting an LBO. The arbitrator here did just that.
Apparently relying on the arbitrator's summary of the parties' LBOs, which did not list all items in the County's LBO, the Association contends that the "last best offer promulgated did not mirror the packages of either party." That contention is groundless. The portion of the award on which the Association relies is merely background. In his conclusion, the arbitrator states that "* * * it is in the 'interest and welfare of the public' to select the last best offer package of the County." The arbitrator's order states: "Based upon the competent, material and substantial evidence on the whole record, it is the decision of the Arbitrator to select the last best offer package of the County pursuant to ORS 243.746(4)." He does not say that he is awarding only those parts of the County's LBO that he specifically listed and discussed. We find no support in the award for the Association's claim that the arbitrator did not adopt the entire LBO package presented by the County.
The Association also raises a substantial evidence argument. According to the Association, the award is not supported by substantial evidence because the County did not present evidence to the arbitrator concerning the first four items in its LBO and the arbitrator did not analyze any evidence concerning those items.
We do not conduct a substantial evidence review in this case because the record before us does not include the complete record of the arbitration proceedings. Polk County Deputy Sheriff's Association v. Polk County, Case No. UP-14-89, 11 PECBR 579 (1989). To the degree we are able to review for substantial evidence on the limited record before us, we cannot say that the arbitrator's decision was unreasonable. Based on what we are able to glean of the record before the arbitrator, it appears the award is supported by substantial evidence; that is, evidence on which a reasonable person could have reached the conclusion reached by the arbitrator. City of Eugene, supra.
In any event, it is not necessary for an adjudicator to discuss and analyze every argument made by advocates for the adjudicator's decision to be supported by substantial evidence. It is not the arbitration award that must contain substantial evidence. It is the record before the arbitrator.
The Association's remaining arguments address its claims that the County acted unlawfully in implementing a contract based on the award. The gist of the Association's argument is that because it objected to the award and claimed it was unenforceable, the County had no right to implement the contract and acted unlawfully in so doing. We reject that argument for two reasons.
First, as we pointed out above, for the County's action to be unlawful, there would have to be a holding that the award actually is unenforceable. The Association's claim that the award is unenforceable does not make it so, and the County was not obliged to yield to that claim prior to a determination from this Board. Contrary to the Association's position, we have concluded that the award is enforceable.
Second, when an interest arbitration award is issued, it becomes the parties' contract. As this Board said in Marion Co. and Marion Co. Sheriff v. MCLEA, Case No. UP-100-93, 14 PECBR 922, 923-924 (1993), on reconsideration of 14 PECBR 903 (1993),
"* * * when parties submit a negotiations dispute to compulsory binding arbitration, the award of an arbitrator and prior tentative agreements between the parties constitute the parties' new collective bargaining agreement. A complete contract results, in other words, by operation of law. It matters not that a county commission or bargaining unit members refuse to ratify such a contract for they are, by statute, stuck with it. That is because compulsory interest arbitration under the PECBA is binding." (Footnote omitted; emphasis in original.)
The County's decision to implement the contract based on the interest arbitration award is entirely consistent with the law.
In implementing a contract based on the award, the County was fulfilling its obligation under the PECBA. Under the circumstances, its action cannot constitute an unlawful unilateral change in the status quo. Once the award was issued, the PECBA bargaining process was complete, despite the Association's complaint about the award. The Association's (1)(e) claim will be dismissed.
The Association did not prove that the County interfered with, restrained, or coerced bargaining unit members in the exercise of protected rights, or that the County interfered with the formation, existence, or administration of the Association.
ORS 243.672(1)(a) claim. The Association alleges that the County circumvented the Association and met with certain bargaining unit members in an effort to have these unit members sign paperwork to effectuate the contract. The Association asserts that the meeting interfered with its role as the employees' exclusive representative. After reviewing the admitted facts and the documentary evidence to which the parties stipulated, we conclude that the Association did not meet its burden of proof.
This case was submitted on a stipulated record. The record before us includes the Association's complaint, the County's answer, the documents attached to the complaint, and the parties' arbitration briefs. The attachments to the complaint and the arbitration briefs have been received as joint exhibits and constitute the evidence before us in this matter.
The Association's complaint is not "evidence," except to the degree that the Association alleges facts that the County admits in its answer. The complaint contains 33 numbered paragraphs; the County admits paragraphs 1 through 14, plus 18, 19, 23 through 27, 30, and 32. As to the remaining paragraphs, the County either denies them in part or completely.
Among the paragraphs denied by the County are the following:
"28.On May 25, 2000, County Labor Relations Manager Ed Ruttledge met with the County Department of Youth Services Groupworkers and despite the Association's expressed intent not to sign the contract, asked the Department of Youth Services Groupworkers to sign paperwork implementing the contract.
"29.The County's actions in meeting with the Department of Youth Services Groupworkers constitutes interference in violation of ORS 243.672(1)(a) and (b)."
These two paragraphs in the complaint are the only ones that relate to the (1)(a) and (1)(b) elements. There are no facts to support the Association's charge. The County did not admit the allegations in those two paragraphs. We found no evidence in the joint exhibits to support the charge.(9) There is no other evidence for us to consider. The Association did not introduce any evidence to support its (1)(a) claim. This element of the complaint will be dismissed.
Further, to be successful on a (1)(a) claim, the complaining party must plead and prove that the employer took some action because employees exercised protected rights or that the natural and probable effect of the employer's action interfered with employees' exercise of their protected rights. The Association did not allege that the County took any action that affected employees, but rather that the County's actions amounted to interference with the Association. Assuming the meeting took place as alleged, that is not a valid basis for a (1)(a) claim.(10) As we said in dismissing a similar (1)(a) claim alleging that an employer had violated a labor organization's rights,
"* * * (1)(a) protects public employees against the infringement of their PECBA rights. The Association, as an entity, does not have rights under ORS 243.662; labor organizations are not public employees. While a labor organization may bring a (1)(a) complaint on behalf of its members (who are public employees), the terms of (1)(a) do not extend to the organization itself. Complaints by a labor organization that an employer's actions interfered with its rights are properly brought under (1)(b)." Eugene Police Employees's Association v. City of Eugene, Case No. UP-53-97, 17 PECBR 675, 679 (1998)(footnote omitted; emphasis in original).
That same rationale applies here.
ORS 243.672(1)(b) claim. The Association advances the same allegations in support of its (1)(b) claim: that the County allegedly bypassed the Association and met with certain bargaining unit members to attempt to have them sign paperwork to effectuate the contract. The claim fails for the same reason the (1)(a) claim failed--a lack of proof.
As discussed above, the Association alleges that the disputed meeting took place. The County denies that allegation in its answer. None of the documents admitted into evidence support the Association's claim. Because there was no hearing, we have no other evidence on which we could base a finding that the meeting occurred as alleged.
To be successful on a (1)(b) claim, a complainant must prove that the employer's actions had an actual impact on the labor organization. AFSCME, Haphey and Bondietti v. Linn County Sheriff's Office, Case No. UP-115-87, 11 PECBR 631 (1989). The Association has alleged that it was impacted, but did not prove it. This element of the complaint will be dismissed.
ORDER
The complaint is dismissed.
DATED this 26th day of September 2000.
1. The Association disputes the legal status of the document drafted by the County. For purposes of this decision, we refer to the document as the "contract."
2. The parties' positions about which counties were comparable varied over the course of the proceeding.
3. In IAFF v. City of Roseburg, Case No. UP-24-85, 8 PECBR 8025 (1985), the union alleged that the city violated ORS 243.672(1)(e) and (f) by implementing an interest arbitration award. This Board dismissed the (1)(e) charge, but held that the city violated (1)(f) by refusing the union's demand to proceed to a new interest arbitration, a demand that stemmed from the union's assertion that the first interest arbitration award was invalid. This Board agreed that the first award was invalid because the arbitrator ruled on an issue not before him.
4. ORS 243.672(1)(a) 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."
ORS 243.672(1)(b) provides that it is an unfair labor practice for a public employer to "[d]ominate, interfere with or assist in the formation, existence or administration of any employee organization."
5. In its brief to this Board, the Association stated the issue as: "[d]id the arbitration award issued by Mark Downing comply with the requirements of ORS 243.746?" Despite that statement of the issue, however, the Association does raise a "substantial evidence" argument in its brief.
6. Said differently, it would have been within the arbitrator's discretion, after concluding that the interest and welfare of the public dictated award of the County's LBO, to omit any discussion of the secondary factors.
7. We note that the arbitrator's summary and discussion of the Association's LBO did not include three items from that LBO, an omission about which the Association does not complain. The Association issues not listed or discussed include: all tentative agreements; references to sheriff apply equally to youth services director; current language on remaining articles. Those items also were not discussed by the Association in its post-arbitration brief.
8. This case demonstrates once again the potential consequences of carrying disputed proposals to interest arbitration. The County notified the Association of its objections to certain language before arbitration. The Association could have requested this Board to rule on the mandatory/permissive status of the disputed language before the interest arbitration proceeding, but it did not.
9. In its brief to this Board, the Association cites attachment 10 to the complaint as a supporting document. That document is a memorandum from Captain Paul Sachet concerning pre-shift briefings. It appears to relate to different paragraphs of the complaint. It does not relate to the alleged meeting between Ruttledge and youth services employees.
10. In support of this element of the complaint, the Association cites ATU v. Rogue Valley Transportation District, Case No. UP-80-95, 16 PECBR 559 (1996). That decision is not on point. This Board found the employer there guilty of unlawful direct dealing in violation of (1)(b) and (1)(e), but specifically rejected the union's contention that the direct dealing also violated (1)(a).