[10-17-00] AFSCME Local 328, Complainant v. Oregon Health Sciences University, Respondent. ORS 243.672(1)(e), Case No. UP-47-99

Upon no objections⁽¹⁾ to the recommended decision issued by Administrative Law Judge (ALJ) William Greer on August 30, 2000, following the parties' January 21, 2000 submission of a fact stipulation, and April 12, 2000 submission of post-hearing briefs.

Barbara J. Diamond and Thomas K. Doyle, Attorneys at Law, Smith, Gamson, Diamond and Olney, Columbia Park Building, 1099 S.W. Columbia, Suite 300, Portland, Oregon 97201-3440, represented Complainant.

Richard F. Liebman and Allyson S. Krueger, Attorneys at Law, Barran, Liebman, 601 S.W. 2nd Avenue, Suite 2300, Portland, Oregon 97204-3159, represented Respondent.

AFSCME Local 328 (AFSCME) represents a bargaining unit of health care workers employed by Oregon Health Sciences University (OHSU). After a bargaining unit member was ordered to undergo a psychological fitness-for-duty examination, AFSCME requested information about why the examination had been ordered. OHSU responded that it was because of the employee's work errors. (The employee had been counseled for certain work errors about a month earlier.)

AFSCME asked for details about the errors. OHSU did not respond. AFSCME reiterated its request. OHSU said the request was being reviewed by its attorneys. AFSCME made another request. When it had received no response after nearly two months, AFSCME filed this complaint alleging that OHSU refused to provide information, in violation of ORS 243.672(1)(e).

About two months after the complaint was filed, OHSU responded to AFSCME's requests for information by stating that the examination had been required because the employee had difficulty communicating with her supervisors and had made several mistakes in her work. AFSCME asked for specific information about those two issues. OHSU replied that it had no obligation to provide the requested information because it was subjective, not objective.

The complaint was set for hearing. OHSU filed an answer admitting and denying parts of the complaint and asserting an affirmative defense.

The issues are:

(1) Did OHSU fail to provide information to AFSCME, in violation of ORS 243.672(1)(e)?

(2) Is a civil penalty appropriate?

The ALJ concluded that OHSU violated (1)(e) by refusing to provide the requested information. We agree and adopt the recommended decision as modified below.

Having the full record before it, this Board makes the following:

RULINGS

OHSU asserts, as an affirmative defense, that the affected employee is no longer an OHSU employee and that AFSCME is estopped from pursuing this complaint. AFSCME's complaint alleges that, while the affected employee was employed, OHSU violated ORS 243.672(1)(e) by refusing to provide certain information. This Board generally does not dismiss unfair labor practice complaints as moot. Oregon City School District v. Oregon City Education Association, Case No. C-179-79, 5 PECBR 4246, 4247 (1981). See also Marion County Law Enforcement Association v. Marion County, Case No. UP-58-92, 14 PECBR 220, 227 (1992) (settlement of discipline grievance did not render information duty complaint moot). This complaint is not moot.

FINDINGS OF FACT⁽²⁾

1. AFSCME, a labor organization, is the exclusive representative of a bargaining unit of health care workers employed by OHSU. At all material times, Val Andreas served as representative for the AFSCME bargaining unit.

2. OHSU is a public employer. At all material times, David Blair was employed as OHSU's Director of Labor and Employee Relations.

3. L.G.⁽³⁾ was formerly employed by OHSU in the AFSCME bargaining unit. L.G. resigned from OHSU effective November 22, 1999.

4. AFSCME and OHSU are parties to a collective bargaining agreement in force from July 1, 1998 to June 30, 2000.

5. The collective bargaining agreement states, in part:

"6.1The Provisions of this Agreement shall apply equally to all employees in the bargaining unit without regard to age, race, religion, sex, color, handicap, national origin, or political affiliation. The Union further agrees that it will cooperate with the Employer's implementation of applicable Federal and State laws and regulations, including but not limited to Presidential Executive Order 11246 as amended by Presidential Executive Order 11375, pertaining to affirmative action.

"6.2All complaints alleging any form of discrimination shall be submitted directly to the Employer and shall be processed under the Employer's rules pertaining to discrimination complaints. If the complaint is not satisfactorily resolved by this process, it may be submitted to the Bureau of Labor & Industries for resolution."

6. On November 25, 1998, L.G.'s supervisor gave her verbal and written nondisciplinary counseling for three work-related errors that allegedly occurred in October and November 1998.

7. On November 30, 1998, L.G. submitted a four and one-half page written rebuttal to the one-page counseling memorandum. The rebuttal indicates that L.G. provided a copy to AFSCME.

8. By letter dated December 28, 1998, OHSU placed L.G. on paid administrative leave, pending the results of a January 4, 1999, fitness-for-duty evaluation. OHSU specified that the evaluation was to be conducted by a clinical psychologist. OHSU stated that L.G. would remain on paid administrative leave "until the conclusion of the non-disciplinary evaluation process."

9. Andreas was concerned that the employer's decision to require L.G. to submit to an involuntary fitness-for-duty examination could violate the Americans with Disabilities Act (ADA) or other laws protecting employees from discrimination. In order to assert the employee's rights under the contract, Andreas assisted L.G. with filing an internal equal employment opportunity (EEO) complaint, a procedure mandated by the collective bargaining agreement.

10. During the first week of January 1999, Andreas asked Blair why L.G. was being required to submit to the exam. (To assist her in enforcing her rights under the contract, L.G. had authorized AFSCME to attempt to obtain this information.)

11. During that conversation, Blair told Andreas that L.G. had made three work errors in lab results, which was the basis for the fitness-for-duty exam. Andreas asked for specific details regarding these errors.

In response to Andreas's request for information, OHSU did not provide a copy of the November 25 counseling memorandum to her and did not refer her to that document or to the specific incidents referenced in it.

At that time, Andreas had a copy of the November 25, 1998 counseling memorandum and L.G.'s November 30, 1998 rebuttal.

12. OHSU asserts that it had no written documentation responsive to Andreas's request, other than the November 25, 1998 memorandum. (OHSU did not make this assertion prior to the June 1, 1999 filing of this complaint.)

13. On or about February 5, 1999, Andreas wrote Blair reiterating her general request for information:

"This letter is a demand on the behalf of L-- G-- that OHSU disclose the specific reasons why she was compelled to submit to a psychiatric evaluation. In a previous discussion between you and me, which took place the first week in January, you intimated that Ms. G-- had made errors in laboratory results.

"Ms. G--s' letter to you dated January 5, 1999 requested your reply as to the basis for this evaluation. In your response to Ms. G--, you stated that exam was based on her current job performance. You also stated that since this is a non-disciplinary action you were not at liberty to disclose the reasons for the exam.

"An Affirmative Action Grievance was filed on or around January 22, 1999 by the Union for L-- G--. As part of discovery we are asking for the above explanation." (Emphasis added.)

14. Blair did not immediately respond to Andreas's February 5 letter.

15. On or about February 12, 1999, Blair received an e-mail from Andreas requesting the status of the Labor Relations Division decision regarding the information request. Blair replied that the matter was before outside counsel.

16. On or about February 18, 1999, L.G. filed a complaint with the Bureau of Labor and Industries (BOLI), alleging OHSU discrimination on the basis of national origin and/or whistle blowing.

17. On or about March 25, 1999, L.G. filed a second BOLI complaint, alleging OHSU discrimination on the basis of a perceived disability.

18. On or about March 12, 1999, Blair received a letter from Andreas repeating her request that OHSU disclose the specific reasons why L.G. was compelled to submit to the exam.

19. On June 1, 1999, AFSCME filed this complaint.

20. On July 30, 1999, Blair responded to Andreas's February 5 request:

"As you may recall I verbally informed you and [blank] of our reason in early January 1999. To reiterate our concerns to you now, I would note that [blank] had [1] repeated difficulties communicating with her supervisors and accepting responsibility for her actions. Most notably she had [2] committed a number of fundamental performance errors which demonstrated she was not fit to perform the important elements of her job." (Emphasis added.)

21. Andreas replied on August 12, 1999, with a more specific information request:

"I am in receipt of your letter dated July 30, 1999 in regards to Ms. G--'s mandated psychiatric evaluation and the reason for such an exam. In your letter you state that in January 1999 you informed me Ms. G-- had [1] difficulties communicating with her supervisors and [2] committed a number of fundamental performance errors which demonstrated she was not fit to perform the important elements of her job. At that time I asked you to specify, exactly, what those performance errors encompassed. You told me that we would receive that information soon.

"Ms. G--, nor the Union, has yet to receive any evidence of the above mentioned allegations. Your most recent letter does not address the specific reasons for the mandated exam.

"The additional information I require is [1] the specific dates and times of Ms. G--'s inability to communicate with her supervisors and [2] a detailed listing of the fundamental performance errors which demonstrated she was not fit to perform the essential functions of her job." (Emphasis added.)

22. Blair responded on August 25, 1999:

"We are not obligated to produce subjective information for an action taken. An explanation of our reasoning for the examination is a request for subjective information and need not be provided.

"Although under no obligation, we gave you an explanation, verbally in January of 1999 and in my letter of July 30, 1999. In your August 12, 1999, letter you ask for more details about our reasons for taking the action.

"We have already provided the Union with more information than it is entitled. Unless you can provide me with legal authority to the contrary, we will conclude that we have satisfied our statutory obligations."

CONCLUSIONS OF LAW

1. This Board has jurisdiction over the parties and subject matter of this dispute.

2. OHSU's refusal to provide information to AFSCME regarding L.G. violated ORS 243.672(1)(e).

OHSU directed L.G. to submit to a psychological fitness-for-duty examination. AFSCME asked why L.G. was being required to submit to the examination. In January 1999, OHSU informed AFSCME that L.G. had made three work-related errors. In July 1999, OHSU expanded that explanation by stating that L.G. had difficulty communicating with her supervisors.

In August 1999, with greater specificity, AFSCME asked OHSU to provide: "[1] the specific dates and times of Ms. G--'s inability to communicate with her supervisors and [2] a detailed listing of the fundamental performance errors which demonstrated she was not fit to perform the essential functions of her job."

OHSU argues that it had no duty to answer AFSCME's request for information because: (1) it had not disciplined L.G.; (2) it had already provided its information to AFSCME, in January 1999; and (3) it had no obligation to repeat, in writing, that same information (which it contends was subjective information) concerning its decision to order a fitness-for-duty examination for L.G.

Duty to provide information

The duty to bargain in good faith, ORS 243.672(1)(e), requires a public employer to provide certain information to the exclusive representative of a bargaining unit. To enable an exclusive representative to administer the parties' collective bargaining agreement, the public employer must provide information that is of "* * * probable or potential relevance to a grievance or other contractual matter." Washington County School District v. Beaverton Education Association, Case No. C-169-79, 5 PECBR 4398, 4405 (1981).

Some of the factors this Board considers in deciding a refusal to provide information complaint are the reason given for the request, the ease or difficulty with which the information can be produced, the kind of information requested, and the history of the parties' relationship.⁽⁴⁾ OSEA v. Colton School District, Case No. C-124-81, 6 PECBR 5027, 5031-5032 (1982).

Regarding the kind of information requested, the duty to provide information applies to objective information and does not require a public employer to disclose subjective information. "There is no obligation to produce purely subjective, as opposed to objective, information; that is, an explanation of a party's reasoning [which is subjective and not subject to disclosure] versus a description of the action the party took and the reason then expressed for the action [which is objective and subject to disclosure]." Colton, 6 PECBR at 5032.⁽⁵⁾

This Board has also stated that the duty to provide information "* * * does not extend so far as to require a party to a collective bargaining agreement to provide a written explanation of its every act under that agreement on demand of the other party." OSEA v. Reynolds School District, Case No. C-12-82, 6 PECBR 5465, 5474 (1982). Instead, an oral response can satisfy the ORS 243.672(1)(e) duty.

OHSU violated its duty to provide information by failing to respond to AFSCME's request for specific examples of L.G.'s alleged communication difficulties and by failing to identify L.G.'s specific work errors for AFSCME

Communication with supervisors. After OHSU said that it had referred L.G. for an examination, in part due to her alleged communication difficulties with supervisors, AFSCME asked for further information. AFSCME did not request OHSU to explain its subjective reason for choosing a psychological examination--instead of imposing discipline on L.G., suggesting that she speak with a counselor, or pursuing other options. Instead, AFSCME sought information about the objective facts (details of L.G.'s conduct with her supervisors) that OHSU reviewed when evaluating its options.

When making the request, AFSCME indicated that it needed the information to assist L.G. in processing a grievance. The information requested was of probable or potential relevance to an AFSCME inquiry into whether OHSU was properly administering the parties' collective bargaining agreement.⁽⁶⁾ OHSU could have obtained the information simply by conferring with L.G.'s supervisors. The kind of information requested was simply the supervisors' description of the "repeated" incidents in which they thought that L.G. had "difficulties communicating." The record contains no information about the history of the parties' relationship regarding the production of information, except that discussed in our ruling, below, on AFSCME's request for a civil penalty.

We conclude that OHSU's failure to respond to AFSCME's request for information about L.G.'s alleged communication difficulties violated its ORS 243.672(1)(e) duty to provide information. We shall order OHSU to cease and desist from refusing to provide that information to AFSCME.

Description of work performance errors. In January 1999, Blair told Andreas that OHSU had directed L.G. to undergo a psychological examination because of three work errors. At that time, Blair did not refer Andreas to the November 25 counseling memo, which addressed L.G.'s three alleged work errors.

Because L.G. provided to AFSCME a copy of her November 30 rebuttal to the counseling memo, we infer that AFSCME knew about the November 25 counseling memo. Both the counseling memo (in November 1998) and Blair (in January 1999) referred to L.G. having had three work errors.

AFSCME later requested OHSU to provide "a detailed listing of the fundamental performance errors." OHSU did not refer AFSCME to the November 25 counseling memo or provide it with another copy.

OHSU argues, in essence, that AFSCME knew or reasonably should have known that the reason for the examination was the three work errors described on the November 25 counseling memo. OHSU, assuming that AFSCME knew of that connection, contends that the employer had no duty to provide AFSCME with another copy of the memo.

OHSU had a duty to respond to AFSCME's request for information about L.G.'s alleged work errors. OHSU could have satisfied that duty either (1) by providing AFSCME with a copy of the November 25 memo, or (2) if it was aware that AFSCME already had a copy of the memo, explaining that the work errors discussed in that memo were the basis for the decision to require the examination. It did neither, and its failure violated ORS 243.672(1)(e).

The record does not support a conclusion that OHSU's conduct was repetitive, or that OHSU filed its answer frivolously or in bad faith, and thus neither a civil penalty nor filing fee reimbursement is warranted.

Board Rule 115-35-075(1)(a) provides that this Board may award a civil penalty of up to $1,000 to a prevailing party in an unfair labor practice case when, as a result of a hearing, "[t]he Board finds that [1] the party committing an unfair labor practice did so repetitively, knowing that the action taken was an unfair labor practice and took such action disregarding that knowledge; or that [2] the action constituting an unfair practice was egregious."

Section (2) of that rule provides, in part: "Any request for a civil penalty must be included in a party's complaint or answer. The request must include a statement as to why a civil penalty is appropriate in the case under these rules, with a clear and concise statement of the facts alleged in support of the statement."

Section (3) of the rule provides, in part: "The Board may order filing fee reimbursement to the prevailing party in any case in which the complaint or answer is found to have been frivolous or filed in bad faith."

Repetitive conduct. In its complaint, AFSCME requests a civil penalty and reimbursement of its filing fees "* * * for the employer's knowing and willful violation of 1(e). The employer has a history of refusing to timely comply with legitimate information requests made by AFSCME. See UP 13-96 [sic]."

We have previously stated that, to establish a "repetitive" violation, a complainant typically must prove "* * * the existence of a prior Board order involving the same parties that establishes that prior, similar activity was unlawful." AOCE v. Oregon Department of Corrections, Case No. UP-7-98, 18 PECBR 64, 74 (1999).

To show that this violation was "repetitive," AFSCME simply cited Case No. UP-13-96. OHSU attached to its post-hearing brief a copy of a February 1997 document entitled "Settlement Agreement."⁽⁷⁾ In that agreement, AFSCME agreed to withdraw its complaint in Case No. UP-13-96. The document does not refer to OHSU's ORS 243.672(1)(e) duty to provide information. We conclude that AFSCME did not establish that OHSU's refusal to provide information in this case repeated a prior unlawful refusal.

AFSCME also alleges in its complaint that an award of a civil penalty "as alleged above is proper in that such an award would help deter such future unlawful refusals * * * in furtherance of the PECBA and would punish the employer from refusing obey [sic] its duties under PECBA * * *." (Emphasis added.) AFSCME's pleading meets the OAR 115-35-075(2) requirement that a request for a civil penalty must "include a statement as to why a civil penalty is appropriate in the case under these rules * * *." (Emphasis added.) However, that pleading does not comply with the provision of the rule that requires a civil penalty request to contain "a clear and concise statement of the facts alleged in support of the statement." Accordingly, we deny AFSCME's request for a civil penalty.

Frivolous or bad faith filing. This Board will order filing fee reimbursement only where the prevailing party establishes that the other party filed its complaint or answer frivolously or in bad faith. AFSCME is the prevailing party, but it did not establish that OHSU's answer was frivolous or in bad faith. The parties had a legitimate dispute about OHSU's obligation to provide certain information. Although we concluded above that OHSU violated its duty to provide information, there is no evidence to support a conclusion that its position was frivolous or that it acted in bad faith in taking its stance.

Further, a request for fee reimbursement must comply with the pleading requirements of OAR 115-35-075(2). AFSCME's request does not state why filing fee reimbursement is appropriate under the rules, nor does it state facts that establish that OHSU's answer was frivolous or filed in bad faith. We deny AFSCME's request for filing fee reimbursement.

ORDER

OHSU shall cease and desist from refusing to provide to AFSCME a description of the facts on which it based its decision to direct L.G. to undergo a psychological examination.

DATED this 17th day of October 2000.

1. AFSCME initially filed objections to one portion of the recommended order, but later withdrew its objections.

2. The Findings of Fact are based upon the parties' fact stipulation.

3. To identify the employee, at the parties' request, we use her initials.

4. The duty to provide information is not limited to information requested to evaluate a potential discipline grievance. We reject OHSU's argument, contained in paragraph 25 of the parties' fact stipulation, that because it had not disciplined L.G., it was not required to provide information.

5. Compare East Dayton Tool & Die Co., 239 NLRB 141, 99 LRRM 1499 (1978), in which the National Labor Relations Board held that the employer was not required to provide information about the reason why it employed so few females and blacks, stating that the union "is seeking a subjective response or argument rather than objective information." 99 LRRM at 1502.

6. A regulation implementing the ADA, 29 CFR Section 1630.14(c), provides that an entity covered by the Act "may require a medical examination (and/or inquiry) of an employee that is job-related and consistent with business necessity. A covered entity may make inquiries into the ability of an employee to perform job-related functions." The Equal Employment Opportunity Commission's "Interpretive Guidance on Title I of the Americans with Disabilities Act," an appendix to the regulation, states that the regulation "permits employers to make inquiries or require medical examinations (fitness for duty exams) when there is a need to determine whether an employee is still able to perform the essential functions of his or her job. The provision permits employers or other covered entities to make inquiries or require medical examinations necessary to the reasonable accommodation process described in this part." AFSCME quotes a related authority, which states that an employer must substantiate any demand for a medical examination with its "'reasonable belief, based upon objective evidence that the exam is necessary.'" EEOC Guidance on the ADA and Psychiatric Disabilities, 2 BNA ADA Manual 70:1285. (Brief at 4 n.2.)

In Article 6.1 of the parties' contract, OHSU agreed not to discriminate against employees with regard to handicap. The circumstances surrounding OHSU's direction that L.G. undergo a psychological examination were relevant to AFSCME's role in administering the collective bargaining agreement and assuring compliance with the EEOC's regulations.

7. AFSCME did not object to the submission of that evidence with OHSU's brief.