[10-04-00] City of Portland, Complainant, v. Portland Firefighters Association, Local 43, Respondent. ORS 243.672(2)(b), Case No. UP-21-00
The parties entered a fact stipulation on August 7, 2000, and waived hearing. The record closed on August 7, 2000, upon receipt of the parties' closing briefs.
Marianna Kanwit, Deputy City Attorney, City Attorney's Office, City of Portland, 1221 S.W. Fourth Avenue, Room 430, Portland, Oregon 97204-1991, represented Complainant.
Robert Reid, Attorney at Law, Reid & Bates, Pioneer Park Building, 715 S.W. Morrison Street, Suite 504, Portland, Oregon 97205, represented Respondent. ______________________________
The City of Portland (City) filed this unfair labor practice complaint on May 8, 2000, alleging that the Portland Firefighters Association (PFFA) violated ORS 243.672(2)(b) and its duty to bargain in good faith by including permissive subjects of bargaining in its final offer, that PFFA insisted that the City could not implement any portion of the company inspection program and by continuing to assert that it had the right to bargain over all aspects of the City's workplace violence policy. Thereafter, the parties reached agreement on the workplace violence policy and the City withdrew all portions of its complaint concerning the workplace violence policy. PFFA filed a timely answer, denying portions of the complaint and asserting affirmative defenses.
The issue is whether certain bargaining proposals included in PFFA's final offer are permissive or mandatory subjects of bargaining.
RULINGS
On June 14, 2000, PFFA filed a motion to dismiss those portions of the complaint which referred to the station-based inspection program. Paragraphs 10, 11, 12 and 13 of the complaint allege that the City informed PFFA that it was considering implementing a station-based inspection program. PFFA responded that it considered the decision, as well as the impact of that decision, to be mandatory for bargaining and demanded to bargain. The City argues that station-based inspections are permissive for bargaining, alleging that the inspections would not have a substantial effect on workload. The City further asserts that PFFA violated its duty to bargain in good faith by insisting that the City must bargain this program and that PFFA conditioned reaching an agreement on the contract upon the City's bargaining the decision and implementation of the inspection program.
PFFA argued that the complaint fails to state a claim because it did not allege that PFFA violated the Public Employee Collective Bargaining Act (PECBA) regarding bargaining over the inspection program. It further argued that, if the City believed the program was a permissive subject of bargaining, the City could implement the program without PFFA's consent. The ALJ granted the motion to dismiss.
The ALJ's ruling is correct. The City's argument overlooks one important element. The only party who can violate the duty to bargain in bad faith by conditioning bargaining on a permissive subject is the proponent of the proposal. Here, the City is the proponent of the proposal. If the proposal is permissive, the City may choose to bargain with PFFA or it may implement the program. If the City chooses to bargain over a permissive subject, PFFA may choose or refuse to bargain; neither choice is a violation of the PECBA. Oregon City School District No. 62 v. Oregon City Education Association, Case No. C-179-79, 5 PECBR 4246 (1981).
In addition, the City has not included the station-based inspection program in its final offer. We have ruled that the dispute resolution processes of the PECBA cannot be effected where one party insists on and/or conditions an agreement upon a permissive subject of bargaining which the other party has chosen not to submit to mediation, fact finding, or to negotiations after fact finding. Redmond School District 2J v. Redmond Education Association, Case No. C-154-77, 3 PECBR 1564 (1997); Oregon City, supra; and State of Oregon, Department of Justice v. Criminal Investigators' Association, Case No. UP-14-00, 18 PECBR 630 (2000).
The ALJ's remaining rulings were reviewed and are correct.
FINDINGS OF FACT(1)
(disputed language is in bold type)
1) Article 12(A) and (B):
"A. Upon sufficient notification, the City shall grant leaves of absence without pay to employees covered by this Agreement for the purpose of attending, as official delegates, union conventions to the extent that such leaves can be granted without interfering with the reasonable needs of the Bureau of Fire.
"B. Upon showing a reasonable purpose, an employee may be granted a leave of absence for a period agreed upon by the employee and City administration. The City will show good cause for denying such leave. Such leave may not be used for the purpose of engaging outside employment." (Exhibit J-1 at 8, emphasis added.)
2) Article 16:
"Just Cause. Discipline and discharge of permanent (non-probationary employees shall be for just cause. Discipline or discharge of probationary Fire Fighters and the demotion of employees during probation in a higher rank are not subject to this requirement of the grievance procedure. The Fire Bureau shall maintain, in their General Orders, a procedure for review of probationary employees. The [PFFA] President shall receive notice of revisions in the Probationary General Order 10 days prior to its implementation. Employees assigned to travel positions will be changed to permanent assignment when such assignments are declared available by the Chief of the Bureau and on the basis of seniority in classifications to which the travel members are entitled. All members that are involved in a one (1) year probationary period will be excluded from traveling status until they have successfully passed that probationary period, at which time they will enter the traveling pool. It is not the intention of the City to use probationary employees to replace EMT IV's on ALS rescues." (Exhibit J-1 at 10, emphasis added.)
3) Article 18(D)(2)
"2. Any portion of currently existing 'excess reserves' fund which are attributable to the difference between the City's contributions towards purchase of health benefits for this bargaining unit and the actual cost of purchase of benefits for this bargaining unit shall be transferred to a separate PFFA Health Reserve Account to be used for the benefit of this bargaining unit's members, either while working or after retirement. This Account shall be administered by two representatives of the City of Portland and two representatives of the PFFA. Disputes between the parties as to the creation, funding or administration of the Account are subject to Article 14 of this agreement." (Exhibit J-3 at 12, emphasis added.)
4) Article 23(e)(5):
"5. Time spent on the following types of activities, during the president's regular work hours, will count toward the 5 hours of work for the president's regular work day:
"--Paid or reimbursable release time attending disciplinary hearings, court, negotiations, arbitrations, City scheduled meetings, Executive Board meetings or attending to the serious injury or death of an [PFFA] member;
"--Reimbursable release time to attend conferences and workshops pertaining to collective bargaining, arbitration and other labor law matters and developments." (Exhibit J-1 at 14, emphasis added.)
11. PFFA proposal Article l8(E) (bold type indicates disputed language; underlined text indicates new language)
"E. Retiree and Survivor Benefits.
"The City shall make available to a retired employee or to a retired employee's spouse and eligible children, or to the retiree's surviving spouse and eligible children, or to the retiree's surviving spouse, the same medical, dental, and vision coverage offered to active employees. The cost of the coverage shall be borne by the retiree or his/her surviving spouse.
"In order to be eligible to receive the retiree health coverage provided herein, the retiree must have had coverage under one of the City's active employee health plans in the month preceding his/her retirement. Retiree health coverage must be requested within 60 days of retirement unless the retiree/spouse has had other employer sponsored group coverage continuously between the retiree's effective date of retirement and the date when the coverage described above is to commence.
"Coverage shall continue to be available to a retired employee until the retiree becomes eligible for federal Medicare coverage. Coverage shall continue to be available to a retiree's surviving spouse until the spouse is eligible for federal Medicare coverage. Dependent coverage for the retiree's unmarried children shall continue to be available until the retiree's child reaches the age of majority under the applicable health plan. In the event that any coverage provided to a retiree or a retiree's surviving spouse is terminated by the retiree/surviving spouse prior to the time the retiree/surviving spouse becomes eligible for federal Medicare coverage, the future availability of such coverage will be contingent upon the retiree or the retiree's surviving spouse maintaining continuous coverage through some other employer sponsored group health plan between the date of termination and the date the retiree or retiree's surviving spouse wishes to re-enroll in a City health plan.
"A retiree or a retiree's surviving spouse who elects to participate in an insured health plan maintained by the City (e.g., Kaiser) will pay rates charged by the insurer for participants in their age group. If the insurer charges a higher rate for participants who are over 65, the City will allows [sic] the participant to switch to its self-insured plan. A retiree or a retiree's spouse who elects participation in a self-insured health plan offered by the City will pay the rate charged for active employees.
"The City shall provide to the spouse and dependent children of an employee who is killed on the job, the same medical, dental and vision benefit plans available to active employees. The City agrees to continue the City contribution for the spouse and dependent children until the spouse reaches age sixty-five or remarries and for each dependent child, until the less of age 19, 23 if a full-time student, or date of the dependent child's marriage.
"The promise of the City to provide insured plans is dependent upon the continuing availability of such plans from an insurance carrier and the qualification by the retired employee with the plan while the retiree was employed with the City. Should an insurance carrier terminate the plan, the City shall attempt to replace it." (Exhibit J-3 at 12-13, emphasis added.)
CONCLUSIONS OF LAW
A party violates the duty to bargain in good faith by including a permissive subject in its final offer, required by ORS 243.712(2)(b), over the other party's objection. Amalgamated Transit Union, Division 757 v. Rogue Valley Transportation District, UP-80-95, 16 PECBR 559, order adhered to on reconsid, 16 PECBR 707 (1996).
The issue is whether certain PFFA proposals and/or items contained in the PFFA's final offer are permissive, prohibited or mandatory for bargaining.(2) There is no dispute that the City timely and adequately objected to these items. There is also no dispute that the PFFA has had an opportunity to withdraw or amend the proposals and has continued to pursue the objected to items. See Springfield Police Association v. City of Springfield, Case Nos. UP-17/20-97, 17 PECBR 260 (1997).
ORS 243.650(7) mandates that this Board use a subject-based test in determining whether a disputed item is mandatory or permissive for bargaining. This Board must first determine the subject of the proposal and then determine whether the subject is mandatory or permissive based on either the express wording of the statute or on our precedents. If the subject matter of the proposals is not one expressly listed in the statute as permissive and this Board has not previously determined the status of the particular subject, then we apply a balancing test to determine the status of the subject at issue. City of Springfield v. Springfield Police Association, 16 PECBR 712 (1996), aff'd without opinion, 147 Or App 729 (1997).
In its final offer, the PFFA proposes some new language. Aside from those changes, it proposes that the contract remain unmodified.
Current contractual language
The City objects to certain language in Article 12(A) as prohibited for bargaining: "for the purpose of attending, as official delegates, union conventions * * *" (Exhibit J-1 at 8) and the language in Article 23(e)(5), which states, "Reimbursable release time to attend conferences and workshops pertaining to collective bargaining, arbitration and other labor law matters and developments" (Exhibit J-1 at 14). The City alleges that the highlighted language addresses a subject which is prohibited for bargaining because it requires the City to provide unlawful assistance to a labor organization, in violation of ORS 243.672(1)(b). A prohibited item for 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 No. 19, Case No. C-278, 1 PECBR 347, 350 (1975).
The subject of this language is attendance at union conventions. We previously addressed this subject in Clackamas Intermediate Education District Education Association v. Clackamas Intermediate Education District, Case No. C-141-77, 3 PECBR 1848, 1855 (1978). We determined that a proposal allowing paid leave to attend conferences of affiliates was prohibited for bargaining because it constituted unlawful assistance to a labor organization. In Eugene Education Association v. Eugene School District 4J, Case No. C-93-79, 5 PECBR 3004, 3011 (1980), we again addressed similar language and explained that proposals concerning union leave are not prohibited if the purpose of the leave is for matters central to and related to the collective bargaining relationship between the employer and the union. In Executive Department, Labor Relations Division, and Oregon State Police v. Oregon State Police Officers' Association, Case No. UP-11-85, 8 PECBR 7874, 7888 (1985), this Board reiterated that a proposal to allow release time to attend conventions or conferences for which the Association was a member was prohibited for bargaining, unless the leave was restricted to conferences related to the bargaining relationship between the parties.
We conclude that the subject language of Articles 12(A) and 23(e)(5) is prohibited for bargaining.
The City contends that the language is permissive for bargaining in Article 12(B) which provides, "The City will show good cause for denying such leave * * *" (Exhibit J-1 at 8) and the language in Article 16 which provides, "Employees assigned to travel positions will be changed to permanent assignment when such assignments are declared available by the Chief of the Bureau and on the basis of seniority in classifications to which the travel members are entitled" (Exhibit J-1 at 10), because it limits management's right to assign duties.
ORS 243.650(7)(f) expressly excludes from mandatory bargaining scheduling of services provided to the public and the assignment of duties. The requirement that the City show good cause for denying a leave of absence impairs management's right to schedule services and to assign duties. The language in Article 16 is similar. This language requires the City to transfer travel employees to a permanent assignment when there is a vacancy. In Springfield Police Association v. City of Springfield, Case No. UP-37-94, 16 PECBR 139, 142 (1995), we determined that a proposal making employees eligible to apply for assignment to the investigative services bureau, once they completed probation, was permissive for bargaining because it concerned assignment of duties. The subject of these two proposals concerns assignment of duties and is permissive for bargaining.
The City alleges as permissive, the highlighted portions of Article 18(D)(2): "after retirement. * * * Disputes between the parties as to the creation, funding or administration of the Account are subject to Article 14 of this agreement"(3) (Exhibit J-3 at 12), because they concern benefits for retirees. The proposal also allows the PFFA to grieve a dispute concerning the creation, funding or administration of the excess reserve account as it applies to retirees. Retirees are not employees and thus are not bargaining unit members. A public employer has no duty to bargain over employment relations for non-members of a bargaining unit. Springfield Police Association, 16 PECBR at 722.
The City objects to that portion of Article 18(E) currently in the contract as well as PFFA's proposed new language which would require the City to provide health insurance to the surviving spouse and dependent children of an employee who is killed on the job. The City argues that this language is permissive for bargaining because the subject matter is benefits for non-bargaining unit employees. PFFA argues that bargaining over direct and indirect monetary benefits which may benefit bargaining unit members and their families in retirement is mandatory.
In reviewing the specific language of Article 18(E) we note that the language only refers to persons who are no longer City employees or bargaining unit members. The language does not concern the type of retirement plan applicable to current bargaining unit members but rather benefits to be received only after an employee ceases to be an employee. This Board determined in the Springfield Police Association cases cited earlier, that a public employer is not required to negotiate over benefits for non-bargaining unit employees.
In Chemical Workers v. Pittsburgh Plate Glass Co., 404 US 157, 78 LRRM 2974 (1971), a private sector case involving a similar issue, the U.S. Supreme Court held that pensioners are not employees within the meaning of the collective bargaining obligations of the National Labor Relations Act (NLRA) and are not bargaining unit members. The fact that the parties previously bargained over the pensioners' rights and included pensioners' rights in the collective bargaining agreement, did not make retirees' rights a mandatory subject of bargaining.
The existing contract language of Article 18(E) as well as PFFA's proposed addition to the language is permissive for bargaining.
Affirmative Defenses
The PFFA raises two affirmative defenses to the City's objections to current contract language. The first is that, to the extent the City challenges proposals which were bargained and made part of the previous labor agreement, which occurred after the Senate Bill 750 amendments to the PECBA, the City has waived its right to challenge the allegedly permissive nature of the provisions, and may legally require them to be changed only by offering its own proposal and meeting its burden of proof at arbitration. The second is that, the unmodified portions of the contract which constitute part of the PFFA's final offer to which the City objects, are not PFFA proposals at all, but are merely the statutorily protected status quo maintained in effect by Articles 13 and 26 of the labor agreement, which continues in effect until and unless the City convinces an arbitrator to change it. (See PFFA's Answer and Affirmative Defenses.)
The PFFA argues that the previously-bargained sections of the contract were not the subject of any proposed changes by the PFFA and should not be construed as "proposals" at all under the PECBA. The PFFA's final offer made that clear by specifying that the terms of the contract "shall remain otherwise unmodified" unless subject to a specific proposal to change it. (Exhibit J-3 at 3.) The existing contract and law of the status quo protect these provisions from modification, unless and until the City proposes changes to the articles and justifies them as part of their package at arbitration. The PFFA further argues that to require otherwise allows the City to benefit at the expense of the PFFA, and therefore this Board should hold that the City has waived the right to raise scope of bargaining challenges to existing contract provisions, and should disallow their review.
We reject the PFFA's argument. In Clackamas County Peace Officers Assoc. v. City of Milwaukie, Case No. C-533, 1 PECBR 563, 565 (1976), this Board determined that:
"For this agency to hold that a public employer waives its right to refuse to bargain over a permissive subject at some future date merely because he has acquiesced in such bargaining in the past, would be contrary to the intent of the legislature in passing the law. * * * It would not be proper for this agency to forever lock a party into a mandatory bargaining position merely because he has voluntarily attempted to reach agreement on a permissive subject so as to resolve an existing labor dispute. A permissive subject for bargaining always remains permissive without regard to the extent of prior bargaining." (1 PECBR at 565.)
We reiterated the principals established in Clackamas County, in Gresham Grade Teachers Association v. Gresham Grade School District No. 4 and Fred Larson, Case No. C-61-78, 5 PECBR 2771, 2777 (1980). We held that a permissive subject does not become mandatory solely through inclusion in a prior bargaining agreement. Whether language was contained in a prior agreement is irrelevant in the determination of the mandatory or permissive nature of such articles.
In addition, ORS 243. 650 requires that an interest arbitrator issue a final and binding award concerning only mandatory subjects of bargaining. If a party pursues a prohibited or permissive subject of bargaining, and an arbitrator includes that proposal in the award, the award will not be enforced by this Board. Springfield Police Association, 17 PECBR at 279.
PROPOSED ORDER
SIGNED AND ISSUED this 4th day of October 2000. _________________________________________
1. The Findings of Fact are derived from the fact stipulation and joint exhibits submitted.
2. The parties are scheduled for interest arbitration on or about October 23, 2000.
3. Article 14 is the contractual grievance procedure.