[01-15-02] Oregon AFSCME Council 75, Complainant v. State of Oregon, Department of Corrections, Respondent and Association of Oregon Corrections Employees, Intervenor / Case No. UP-4-01
The parties submitted a complete fact stipulation to Administrative Law Judge (ALJ) William Greer on December 17, 2001. The record closed on December 24, 2001, upon receipt of the parties' post-hearing briefs.
Margaret S. Olney, Attorney at Law, Smith, Gamson, Diamond & Olney, 1500 N.E. Irving, Suite 370, Portland, Oregon 97232-4207, represented Complainant AFSCME.
Laura A. Fine, Attorney at Law, Garrettson, Goldberg, Fenrich & Makler, 423 Lincoln Street, Eugene, Oregon 97401, represented Intervenor AOCE.
Oregon AFSCME Council 75 (AFSCME) filed this complaint on February 5, 2001, alleging that the State of Oregon, Department of Corrections (DOC) violated ORS 243.672(1)(b) by refusing to treat certain employees as included in an AFSCME bargaining unit. On February 22, the Association of Oregon Corrections Employees (AOCE) filed a motion to intervene. Neither AFSCME nor DOC objected. On February 23, the ALJ granted the motion. The ALJ investigated and set the hearing for June 28. In lieu of a hearing, on December 17 the parties submitted a complete fact stipulation and waived hearing.
The issue is: Did DOC: (a) transfer employees, who were represented in an AOCE bargaining unit, to a work site where the employees performed similar work and were represented in an AFSCME bargaining unit, and then (b) continue to treat the transferred employees as members of the AOCE bargaining unit, in violation of ORS 243.672(1)(b)?
RULINGS
1. Notice. The parties requested the Board to take judicial notice of the Findings of Fact and Conclusions of Law in AOCE v. Department of Corrections and AFSCME, Case No. UC-35-97, 17 PECBR 721 (1998), AWOP 161 Or App 667 (1999) (transportation and fugitive apprehension corrections officers are more appropriately included in the AFSCME strike-prohibited, statewide bargaining unit than in the AOCE mixed, four-facility bargaining unit); AOCE v. Department of Corrections and AFSCME, Case No. UC-36-97, 17 PECBR 730 (1998), AWOP 161 Or App 667 (1999) (strike-permitted OSP employees are more appropriately included in the AFSCME strike-permitted, statewide bargaining unit than in the AOCE mixed, four-facility bargaining unit); AFSCME v. Department of Corrections and AOCE, Case No. UC-37-97, 17 PECBR 767 (1998) (employees at one institution, represented by AOCE in a mixed, institution-specific bargaining unit, are more appropriately included in statewide AFSCME bargaining units, where the employees have a greater community of interest with the AFSCME bargaining units' employees; in the Board-ordered election, however, the employees voted for representation by AOCE); AOCE v. Department of Corrections and AFSCME, Case No. UP-23-98, 18 PECBR 564 (2000) (DOC's recognition of AFSCME as exclusive representative of a new institution's employees, before the institution became operational, did not violate ORS 243.672(1)(a), (b), (c), or (f)); and AOCE v. Department of Corrections and AFSCME, Case No. UC-25-99, 18 PECBR 576 (2000) (employees at one institution, represented by AFSCME in a statewide, strike-permitted bargaining unit, are more appropriately included in that unit than in an institution-specific, mixed bargaining unit represented by AOCE). See also AOCE v. Department of Corrections and AFSCME, Case No. UC-24-99, 18 PECBR 441 (2000) (health service employees at OSCI are more appropriately represented by AFSCME than by AOCE). The ALJ correctly took notice of those decisions.
2. Background of transferred individuals. The parties stipulated that AOCE would present evidence regarding the background of the five individuals whose representation is the subject of this complaint. (See Findings of Fact 22 through 33.) AFSCME objects to the relevance of evidence setting out the work history of the affected employees; differences in the terms and conditions of employment under the AOCE and AFSCME collective bargaining agreements; and the fact that DOC allowed some employees to retain their AOCE affiliation after being transferred into a work unit represented by AFSCME. While much of that evidence has minimal relevance, the ALJ properly denied AFSCME's objection.
3. AOCE-DOC letter of agreement. The parties stipulated that DOC would present evidence to establish Findings of Fact 34 through 38. AFSCME objects to the relevance of that evidence. The ALJ properly denied AFSCME's objection. The evidence in those Findings of Fact provides the context for the ORS 243.672(1)(b) complaint.
FINDINGS OF FACT(1)
1. AFSCME and AOCE are labor organizations.
2. DOC is a public employer.
3. AFSCME and DOC, at all material times, were parties to a 1999-2001 collective bargaining agreement. (Exhibit A.) The recognition clause contained in that collective bargaining agreement states:
"[DOC] recognizes [AFSCME] as the sole and exclusive bargaining agent for the employees within the certified or recognized bargaining units. All aspects of the employees' wages, hours, and other terms and conditions of employment shall be determined by this Agreement, except in regard to recruitment and selection of applicants for initial appointment to state service. The terms and conditions of employment set forth in this Agreement shall apply to all classified positions (except temporary positions and those positions excludable by ORS 243.650), within the appropriate bargaining units within the [DOC] which are:
"a. Non-security Unit - Encompasses all other classified employees excluding [1] supervisory and confidential employees as defined in ORS 243.650, [2] employees at Oregon State Correctional Institution [OSCI] covered by Oregon Public Employees Union [OPEU], and [3] [employees at] the Oregon State Penitentiary [OSP] covered by [AOCE].
"b. Board of Parole and Post-Prison Supervision support staff * * *." (Exhibit A at 1; emphasis added.)
4. AOCE and DOC, at all material times, were parties to a 1999-2001 collective bargaining agreement. (Exhibit B.) The recognition clause contained in that collective bargaining agreement states:
"The Employer [DOC] recognizes [AOCE] as the sole and exclusive bargaining agent for the employees within the certified bargaining unit. The terms and conditions of employment set forth in this Agreement shall apply to all classified positions (except temporary positions and those positions excludable by ORS 243.650) within the bargaining unit within the [DOC] which are at the [OSP], the Mill Creek Correctional Facility, and the South Fork Forest Camp, and the Correctional Officers, Correctional Corporals and Correctional Sergeants at [OSCI]." (Exhibit B at 4; emphasis added.)
Centralization of DOC sentencing computation personnel
5. Since approximately 1983, the DOC has been in the process of centralizing functions that were previously performed in separate institutions. Centralization of employees has resulted in the relocation or transfer of employees between DOC facilities.(2) Some employees changed union affiliation when moved; others have not.
6. Historically, correctional facilities computed prison sentences and discharge dates for inmates. Both the size of DOC's inmate population and the complexity of sentence computations, now generally referred to as Offender Information and Sentence Computation (OISC) work, has grown during the last 10 years. OISC work is now performed primarily in a centralized location in Salem, with some aspects being done at each institution. (Exhibit C, Schurke Arbitration.)
7. There are 39 employees performing OISC work at the central office. Of those employees, 6 are managers; 28 are members of AFSCME's non-security bargaining unit who make dues or fair share payments to AFSCME;(3) and 5 are the individuals at issue in this case who transferred from the OSP. Under an agreement between DOC and AOCE, those five employees pay dues to AOCE and receive the terms and conditions of employment set out in the AOCE contract.
8. Employees performing OISC sentence computation work at the institutions represented by AOCE, including OSP, were and are members of the AOCE bargaining unit.
9. In 1998, AOCE filed a grievance challenging DOC's failure to bargain the decision to move toward centralized sentencing functions as well as its failure to bargain the impact of that decision. Arbitrator Marvin Schurke issued an opinion dated August 16, 1999, under the AOCE contract. He held that DOC did not have to bargain the decision to transfer work, but that it did have to bargain over the impact of that decision on individual employees. (Exhibit C.)
10. Pursuant to Arbitrator Schurke's order, DOC and AOCE engaged in impact bargaining. The result of the impact bargaining was a letter of agreement, dated November 2, 1999. (Exhibit D.) (See Findings of Fact 34-38.)
11. AFSCME was not a party to the DOC-AOCE impact bargaining.
12. After the agreement regarding impact bargaining was reached, DOC moved OISC positions from OSP to the centralized location. As a result of their positions being moved to the centralized location, some employees who were working at OSP and represented in the AOCE bargaining unit (Carol Caris, Barbara Diviney, Sheila Lang, Dorothy Seaver, and Mitch Shimmin) transferred to the central location.(4) The transfer of these employees did not result in any vacancies at OSP.(5)
13. Those five employees continued to make dues or fair share payments to AOCE. They also received the wages and benefits set out under the AOCE contract while holding the positions that were moved to the central unit.
14. When Lang vacated her position at OISC doing sentence calculations, DOC designated the position she vacated as one belonging in AFSCME's bargaining unit. DOC will treat any person holding the position as represented by AFSCME.
15. The DOC designated employees Caris, Shimmin, Seaver, and Lang as "police officers," for purposes of PERS classification during their employment at OSP under AOCE membership. DOC does not designate AFSCME-represented employees doing OISC work as "police officers" for purposes of PERS.
16. Until October 2000, AFSCME had no knowledge of the actions taken with respect to the three employees listed in the complaint, or any other employees who moved from OSP to the central unit. AFSCME has never acquiesced in these three employees (or any other employee) retaining AOCE affiliation, after their being moved to the central work site.
In October 2000, AFSCME Shop Steward Pat Martin learned that certain employees working at the central location where the other employees were in AFSCME's non-security unit continued to be AOCE members (and represented in the AOCE bargaining unit). Martin approached DOC personnel officer Roxie Burns to find out the basis for the employers treatment of these employees with respect to union representation. Burns gave Martin a copy of the November 2, 1999 letter of agreement between AOCE and DOC. (Exhibit D.) Burns told Martin that DOC was treating the employees who moved from OSP to the central location as members of the AOCE bargaining unit for as long as they occupied the positions under the terms of the agreement. Burns also told Martin that when these employees vacated the positions, the DOC would treat the vacant positions as part of the AFSCME bargaining unit.
17. On October 30, 2000, AFSCME Executive Director Ken Allen wrote DOC Personnel Administrator Tom Wells to request that DOC include all employees performing OISC work at a central location within AFSCME's bargaining unit. (Exhibit E.)
18. On November 14, 2000, Wells responded to Allen, stating that "[t]he employee who goes to the centralized unit from OSP will keep their AOCE labor representation subject to ERB Unit Clarification orders." (Exhibit F.)
19. AFSCME has not filed a unit clarification petition with ERB with respect to the employees identified in Finding of Fact 12.
20. On February 2, 2001, AFSCME filed a grievance challenging DOC's failure to include the transferred employees in AFSCME's bargaining unit. (Exhibit G.) The parties agreed to hold the grievance in abeyance while this unfair labor practice complaint was pending.
Background of transferred individuals
21. Carol Caris has worked for DOC since January 5, 1987. She was first hired into an entry-level, office-clerical position at OSP. At that time, she became a member of AFSCME, the labor organization certified to represent employees at OSP at that time.
22. Caris began calculating sentences in 1988 or 1989, was promoted to office specialist II, and is currently classified as an administrative specialist I. Her work for the DOC has consisted of calculating inmate sentences since 1988 or 1989.
23. In 1992, Caris was moved from OSP to the IBRO office and her work blended with other AFSCME employees at the IBRO office to calculate sentences for offenders at all DOC institutions.
24. In December 1992, AOCE was certified as exclusive representative for security and clerical employees at OSP.
25. In 1993, Caris was transferred back to OSP, where she resumed calculating only OSP inmate sentences. Upon her return to OSP, she joined AOCE and has been a member since that time.
26. In July 2000, DOC transferred Caris to a new office, housing only OISC work unit members. She was given an option to stay at OSP if she agreed to be down-classed to office specialist II, decreased from salary range 19 to 17, and red-lined at her current salary.
27. Caris moved to the new OISC work site to avoid the downward classification. Caris's supervisor at the new OISC work site was Kim Brocamp, the same person who supervised her when she worked at OSP. Caris's work has blended with AFSCME employees' work at the new OISC work site to include calculating sentences for offenders at all DOC institutions. Caris continues to make dues payments to AOCE, and receives the terms and conditions of employment set out in the AOCE contract.
28. Sheila Lang is a DOC employee previously assigned to work at OSP where she calculated sentences for OSP inmates. In early 2000, Lang was transferred from OSP to Santiam Corrections (an AFSCME facility) but allowed to maintain her AOCE affiliation. While at SCI, she calculated sentences for SCI inmates. Lang was then transferred back to OSP where she resumed calculating only OSP sentences. She was transferred in July 2001 to OISC, where she is currently a prison term analyst for DOC. Lang continues to make dues payments to AOCE, and receives the terms and conditions of employment set out in the AOCE contract.
29. Mitch Shimmin was hired by DOC in February 1994, to work as an office specialist I at OSP. He was promoted to administrative specialist II, doing sentence calculations at OSP since September 1997. DOC moved Shimmin from OSP to OISC in December 1999. At OISC, his work blended with AFSCME employees to include the calculation of sentences for inmates in all institutions. Shimmin continues to make dues payments to AOCE, and receives the terms and conditions of employment set out in the AOCE contract.
30. Barbara Diviney was hired by DOC in July 1990, and placed at OSP where she calculated sentences for OSP inmates. In March 2000, she was physically transferred to the OISC centralized work location, where she did "out of class" work, supervising OISC employees. Sometime after September 1, 2001, DOC transferred Diviney to a brand new facility, Coffee Creek Correctional Facility, where her duties include setting up the office and procedures for processing and handling inmates when the institution opens. Until she transferred to Coffee Creek, Diviney made dues payments to AOCE and received the terms and conditions of employment set out in the AOCE contract. She is currently paying dues to AFSCME.
31. Dorothy Seaver was hired by DOC in October 1993, to work in the canteen at OSP. She was promoted to office specialist II in November 1995. In that position, she prepared releases, transfers, earned time calculations, and date. She was then reclassified as an administrative specialist I, as an "underfill" for administrative specialist II, and was trained by Barbara Rice to do sentence calculations for inmates at OSP. When she worked at OSP, she was a member of AOCE's bargaining unit.
DOC moved Seaver to OSCI in 1999, where she continued to do sentence calculations for inmates at OSCI and continued to be affiliated with AOCE. Finally, Seaver was moved to OISC in November 2000, where she did sentence calculations for all institutions. While working at OISC, Seaver continued to pay dues to AOCE, instead of AFSCME, and received the terms and conditions of employment set out in the AOCE contract.
Seaver resigned her employment with DOC in June 2001. When she resigned, her position was not technically "vacant" because it had previously been "double filled" with a person at a lower classification who worked at OSP. Except for the "double fill," the position would have been switched to AFSCME representation. In addition, the work previously performed by Seaver was done by two employees, Candance Thompson and Cindy Privell, who job-shared a full-time position. They are members of AFSCME.
32. AOCE continues to represent members who work within the walls of OSP in the classification of records clerks. Those employees fax and file inmates records; their supervisor is in the OISC work unit.
AOCE-DOC letter of agreement
33. Mark Hunt was employed by Department of Administrative Services as a labor relations manager from May 1989 to October 2001. His general duties included negotiating collective bargaining agreements on behalf of state agencies and administering those contracts following negotiations. He was assigned to work on DOC collective bargaining matters from August 1994 to October 2001.
34. As required by the August 1999 Schurke grievance arbitration award (Exhibit C), Hunt entered impact bargaining with AOCE.
35. Hunt entered the negotiations with the understanding that the employer could not unilaterally change an employee's representational status based solely on a physical move of their work location. His understanding was based on several factors: (1) his years of experience in labor matters; (2) discussions with Tom Wells, the personnel administrator for the DOC; and (3) a specific issue discussed with the three labor organizations representing DOC employees, approximately four to five years before the negotiations leading to the November 2, 1999 letter of agreement. (See also Finding of Fact 38.)
36. The discussions with the labor organizations concerned efforts by DOC to change representational status of employees working in purchasing and the warehouse. During the discussions, Hunt recalled that all three labor groups (AFSCME, AOCE, and OPEU) took the position that an incumbent employee's representational status could not be changed based on movement of the work location. The DOC had agreed that it would not change any representational status of employees in that situation, and Hunt carried that belief into the negotiations with AOCE's representative, John Hoag.(6)
37. Hunt negotiated the labor (bargaining unit) status of specific, incumbent employees represented by AOCE, who would move their work site to the central location for sentence calculations. He agreed on behalf of DOC that, if these employees moved, they would continue to be represented by AOCE while they were in the same position. Hunt required that the employees' right to be continued as AOCE-represented employees would be subject to the result of any order of this Board, in a unit clarification petition, that might dictate a different labor representative for these employees. AOCE agreed to the exception.
On November 2, 1999, AOCE and DOC confirmed that agreement in a letter of agreement. In particular, the agreement provides: "The employees who go to the centralized unit from OSP will keep their AOCE representation subject to ERB UC orders." (Exhibit D.)
Prior agreements and discussions regarding bargaining unit placement
38. AFSCME Field Representative Greg Schneider, from 1996 to 1999, was assigned to work with AFSCME's DOC bargaining unit.
39. Schneider recalls a meeting organized by Karen Roach, DOC human resources director, to discuss DOC's plans to reorganize and thereby increase flexibility in staffing, including plans to transfer employees in the purchasing and warehousing departments. The meeting occurred in approximately 1996 or 1997. Hunt and representatives from AOCE, AFSCME, and OPEU were present.
40. At the meeting, the unions agreed that the status quo should be retained with regard to representational status of employees who were temporarily moved between work locations, until such time as DOC made permanent transfers. No written agreement was entered into reflecting this discussion.(7)
CONCLUSIONS OF LAW
1. This Board has jurisdiction over the parties and subject matter of this dispute.
2. DOC's treatment of Caris, Diviney, Lang, Seaver, and Shimmin as members of the AOCE bargaining unit, not as members of the AFSCME bargaining unit, violated ORS 243.672(1)(b).
DOC transferred employees represented by AOCE to a work site where employees performing similar duties were represented by AFSCME. DOC continued to treat the transferred employees as being represented by AOCE. AFSCME alleges that DOC's conduct violated ORS 243.672(1)(b). We agree.
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."
To prove a ORS 243.672(1)(b) violation, a complainant must show that a public employer's action directly affected a labor organization. AFSCME Council 75, Haphey, and Bondietti v. Linn County, Case No. UP-115-87, 11 PECBR 631, 656 (1989) and Oregon State Employees Association v. Coos Bay-North Bend Water Board, Case No. C-122-80, 5 PECBR 4047, 4052 (1980). See also AOCE v. Department of Corrections and AFSCME, Case No. UP-23-98, 18 PECBR 564, 572-73 (2000), in which this Board referred to cases in which public employers were held to have unduly favored or disfavored labor organizations, in violation of ORS 243.672(1)(b).
AFSCME and AOCE bargaining units
In this case, AFSCME represents a bargaining unit of "all classified positions" (with certain exceptions that are not relevant to this dispute) "within the appropriate bargaining units within the [DOC] * * *." The "non-security" bargaining unit includes all classified employees, "excluding [1] supervisory and confidential employees as defined in ORS 243.650, [2] employees at [OSCI] covered by [OPEU], and [3] [employees at] the [OSP] covered by [AOCE]; * * *." (Finding of Fact 3, emphasis added.)
AOCE represents a bargaining unit of "all classified positions" (with certain exceptions that are not relevant to this dispute) employed by DOC at particular institutions: "at [1] the [OSP], [2] the Mill Creek Correctional Facility, and [3] the South Fork Forest Camp * * *."(8) (Finding of Fact 4, emphasis added.)
The terms of the recognition clauses, therefore, indicate that the parties defined the AFSCME and AOCE bargaining units primarily by describing categories of classified positions that DOC employed at particular work sites. The parties did not define the bargaining units in terms of employees' names.
To summarize, for the purpose of our analysis in this case: (a) AFSCME represents personnel employed in classified positions at all DOC facilities, except OSCI and OSP; (b) AOCE represents personnel employed in classified positions at OSP, Mill Creek Correctional Facility, and South Fork Forest Camp; and (c) DOC transferred the five subject employees from OSP to a central office, where employees performing similar work are employed in a bargaining unit represented by AFSCME.
DOC work placement and unit placement of sentencing computation personnel
DOC has centralized some functions that previously were performed in its separate facilities. In that centralization, DOC has relocated or transferred some positions and the employees filling those positions from one facility to another. In that transition, the representation of some transferred employees has changed from one bargaining unit (represented by a particular labor organization) to another.
DOC sentencing computation work, historically, has been performed at the separate correctional facilities. That work now is performed primarily in a centralized location in Salem by 39 employees. Of those, 6 are managers; 28 are members of AFSCME's non-security bargaining unit; and 5 are the individuals at issue in this case (Caris, Diviney, Lang, Seaver, and Shimmin) who transferred from OSP to the central office.
After transferring those five employees from OSP to the central office, DOC agreed with AOCE that they would remain in the AOCE bargaining unit. DOC did not inform or negotiate that arrangement with AFSCME. Since the transfer, DOC has applied the terms of the AOCE collective bargaining agreement to those five employees and has forwarded their dues or fair share fees to AOCE.
Analysis
DOC transferred the five employees from a work location where they were included in a bargaining unit represented by AOCE to a work location where employees performing the same work are included in a bargaining unit represented by AFSCME. The five employees occupy positions that, under the clear and unambiguous language of the recognition clause contained in the DOC-AFSCME collective bargaining agreement, are included in the AFSCME bargaining unit.
In essence, DOC agreed with AOCE to reduce the scope of the AFSCME bargaining unit description and simultaneously increase the scope of the AOCE bargaining unit. In doing so, DOC acted in a manner that favored AOCE and disfavored AFSCME. DOC's treatment of the five employees as members of the AOCE bargaining unit, instead of the AFSCME bargaining unit, simultaneously amounts to unlawful interference with AFSCME and unlawful assistance to AOCE, in violation of ORS 243.672(1)(b).
Viewed differently, DOC unlawfully permitted AOCE to bargain the terms and conditions of employment applicable to members of AFSCME's bargaining unit, thereby bypassing the exclusive representative, AFSCME. See Portland Federation of Teachers and Classified Employees, Local 111, AFT, AFL-CIO v. School District No. 1, Multnomah County, Case No. UP-20-92, 14 PECBR 127, 133 (1992).
First, DOC's action deprived AFSCME of the union dues or fair share fees payable by the five employees who, under the terms of its recognition clause, are members of the AFSCME bargaining unit.(9) Second, DOC's conduct provides AOCE with union dues or fair share fees paid by the five employees who, under the terms of its recognition clause, are no longer members of the AOCE bargaining unit.
Third, DOC's failure to treat the five employees as being included in the AFSCME bargaining unit has proportionately reduced the bargaining power and stature of the AFSCME bargaining unit and undermined AFSCME as exclusive representative of that unit. DOC's conduct simultaneously increased the bargaining power and stature of the AOCE bargaining unit.
As its first affirmative defense, DOC asserts that this complaint "involves a turf battle between rival unions" and that "either AFSCME or AOCE should have filed unit clarification petitions to resolve this dispute." (Answer at paragraph 17.) AFSCME could have filed a unit clarification petition regarding this dispute, but the law did not require it to do so before (or instead of) filing this unfair labor practice complaint. We reject this defense.
As a second affirmative defense, DOC argues that AFSCME is estopped from claiming that DOC's conduct violated ORS 243.672(1)(b).(10) DOC asserts that, in 1996, its representatives allegedly met with representatives of AFSCME, AOCE, and OPEU to discuss representation issues. DOC contends that it and the three labor organizations "agreed that DOC could not change the affected employees' union representation absent a change in employment status." (Answer at paragraph 17.) DOC did not specify what action would amount to "a change in employment status."
However, the record indicates that the labor organizations actually agreed that: "the status quo should be retained with regard to representational status of employees who were temporarily moved between work locations, until such time as DOC made permanent transfers." (Finding of Fact 41; emphasis added.)
In this case, there is no indication in the record that DOC's transfer of the five employees from OSP to the central office was not "permanent." Given that the transfers were permanent, the "status quo" ceased to apply. Because the "status quo" no longer applied, AFSCME was not estopped from filing this complaint. We reject this defense.
DOC and AOCE also argue that AFSCME does not have standing to litigate this complaint. DOC's conduct resulted in AFSCME's loss of dues or fair share receipts; AFSCME clearly has standing.
The parties included in their fact stipulation, evidence that an arbitrator ordered DOC to bargain with AOCE regarding the impact of DOC's decision to transfer the subject employees from OSP to the central office. The arbitrator's award, however, did not purport to authorize DOC to amend the composition of either the AOCE or AFSCME bargaining units. For the purpose of our ORS 243.672(1)(b) analysis, the arbitrator's award is irrelevant.
This Board has previously held that an employer's transfer of employees between departments, given the express terms of a collective bargaining agreement, resulted in a change of representatives. AFSCME v. Clackamas County and Clackamas County Employees Association, Case No. UC-110-87, 10 PECBR 539 (1988).(11)
Remedy
To remedy DOC's violation, we shall order it to cease and desist from refusing to consider the five employees as members of the AFSCME bargaining unit, for the time they were employed in the central office, beginning with the date 180 days before AFSCME filed this complaint.(12)
We shall also order DOC to pay to AFSCME, the amount of dues or fair share fees that the five employees would have paid to AFSCME, had DOC correctly treated them as being included in the AFSCME bargaining unit, with interest.(13)
Finally, we shall order DOC to post the attached notice in the central sentence computation office. This Board previously has stated that it "generally requires the posting of an official notice in situations in which the violation: * * * had a significant potential or actual impact on the functioning of the designated bargaining representative as the representative * * *." OSEA v. Fern Ridge School District, Case No. C-19-82, 6 PECBR 5590, 5601 (1983). DOC's disregard of AFSCME's right to represent the employees in its bargaining unit--and DOC's conduct favoring AOCE--challenged AFSCME's status as exclusive representative and warrants the posting of a notice.
PROPOSED ORDER
1. DOC shall cease and desist from refusing to consider Carol Caris, Barbara Diviney, Sheila Lang, Dorothy Seaver, and Mitch Shimmin as members of the AFSCME bargaining unit, for the time they were employed in the central sentence computation office, beginning with the date 180 days before the filing of this complaint.
2. DOC shall pay to AFSCME the amount of dues or fair share fees that Caris, Diviney, Lang, Seaver, and Shimmin would have paid, had DOC treated them as being included in the AFSCME bargaining unit, with interest at the rate of nine percent per annum, from the respective paydays in the above period until paid.
3. DOC shall post the attached notice and comply with the posting terms specified on the notice.
SIGNED AND ISSUED this 15th day of January 2002.
PROPOSED
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
STATE OF OREGON
EMPLOYMENT RELATIONS BOARD
PURSUANT TO AN ORDER of the Employment Relations Board in Case No. UP-4-01, AFSCME Council 75 v. State of Oregon, Department of Corrections and Association of Corrections Employees, and in order to effectuate the policies of the Public Employee Collective Bargaining Act, we hereby notify our employees that:
AFSCME filed an unfair labor practice complaint alleging that the State of Oregon, Department of Corrections (DOC) violated the Public Employee Collective Bargaining Act. The Employment Relations Board found that DOC transferred Carol Caris, Barbara Diviney, Sheila Lang, Dorothy Seaver, and Mitch Shimmin from a work site where they were represented by AOCE to a work location where employees performing similar work are represented by AFSCME. In its complaint, AFSCME alleged that DOC refused to treat Caris, Diviney, Lang, Seaver, and Shimmin as members of the AFSCME bargaining unit and instead continued to treat them as members of the AOCE bargaining unit.
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."
The Employment Relations Board decided that DOC's treatment of Caris, Diviney, Lang, Seaver, and Shimmin as members of the AOCE bargaining unit, not as members of the AFSCME bargaining unit, amounted to interference with AFSCME, in violation of ORS 243.672(1)(b).
The Employment Relations Board ordered DOC: (1) to cease and desist from refusing to consider the five employees as members of the AFSCME bargaining unit, for the time they were employed in the central sentence computation office; (2) to pay to AFSCME the amount of dues or fair share fees that the five employees would have paid, had DOC treated them as being included in the AFSCME bargaining unit, with interest; and (3) to post this notice.
DOC will comply with the Order of the ERB.
DEPARTMENT OF CORRECTIONS
Dated: __________________, 2002 By: _____________________________________
Employer Representative
____________________________________Title
* * * * * * * *
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED
This notice must remain posted for 30 consecutive days from the date of posting and must not be altered, defaced, or covered by any other materials. Any questions concerning this notice or compliance with its provisions may be directed to the Employment Relations Board, 528 Cottage Street NE, Suite 400, Salem, Oregon 97301-3807, phone 378-3807, ext. 0.
1. With minor modifications, the Findings of Fact are based on the parties' stipulation.
2. Based on the parties' fact stipulation and the decisions cited in our Rulings, we understand that DOC creates positions to perform various functions and that it then budgets various positions for each of its facilities. After positions have been created and employees hired, DOC can move them between facilities in different situations. First, in response to changing needs and budgets, DOC can move a position from one facility to another; when DOC transfers a position, it may also transfer the employee who fills that position. Second, DOC may transfer an employee from a position in one facility to a position in another facility. (Employees transfer rights may be determined by the terms of DOC's collective bargaining agreements.) In this case, the parties have stipulated that DOC has transferred employees performing a particular function from one facility to another. Stated differently, the parties have stipulated that DOC has transferred both positions and the employees filling those positions from one facility to another.
3. The DOC-AFSCME collective bargaining agreement provides that the employer will deduct fair share fees from the pay of bargaining unit members who do not pay dues to AFSCME. (Exhibit A at 5-6.)
4. In its answer, DOC admitted that it transferred Shimmin on December 1, 1999; Caris on July 24, 2000; and Seaver on November 6, 2000. (Answer at paragraph 6.) In their stipulation, the parties agreed that DOC transferred Diviney in March 2000 and Lang in July 2001. (Stipulation at paragraphs 32 (Lang) and 34 (Diviney).)
5. We understand that DOC transferred both the positions and the named employees from OSP to the central facility.
6. AOCE changed counsel during the processing of this complaint.
7. In their fact stipulation, the parties noted that AFSCME had taken the following positions. If and when DOC made permanent transfers to units represented by AFSCME, AFSCME took the position that the employees' representational status would change. As soon as DOC developed a plan to transfer employees permanently into a work site or job classification represented by AFSCME, AFSCME asserted that the employees should be represented by AFSCME. Since that time, AFSCME has maintained that position. (Stipulation at paragraphs 44 and 45.) In reaching our decision, we need not consider that evidence; we do consider that argument.
8. In addition, AOCE represents the correctional officers, correctional corporals, and correctional sergeants at OSCI. (Finding of Fact 5.)
9. Compare Oregon School Employees Association v. The Dalles School District, Case No. UP-75-87, 11 PECBR 167, 173 (1989).
10. This Board stated the principles of equitable estoppel in Caserta v. Klamath County Peace Officers Association and Klamath County, Case Nos. UP-139/140-93, 15 PECBR 864 (1995).
11. DOC argues, without citation of authority, that "[t]ransferring a position does not, by operation of law, automatically establish that another labor organization is entitled to claim the positions [sic]." (Post-hearing brief at 2.) For a discussion of the rights of parties regarding the transfer of a position out of a bargaining unit, see Milwaukie Police Employees Association v. Milwaukie Police Department, Case No. UP-111-92, 15 PECBR 1 (1994).
12. AFSCME filed this complaint on February 5, 2001. DOC transferred Shimmin on December 1, 1999; Diviney in March 2000; Caris on July 24, 2000; Seaver on November 6, 2000; and Lang in July 2001. This Board can order a remedy only for those violations that occurred during the 180 days before the filing of the complaint; ORS 243.672(3).
13. See Cascade Unified Education Association v. Cascade School District, Case No. UP-31-98, 18 PECBR 590, 604 n.13 (2000); OSEA v. Sheridan School District, Case No. UP-34-85, 8 PECBR 8098, 8104 n.4; and Oregon Nurses Association v. Bay Area Health District, Case No. C-48-83, 7 PECBR 5937, 5941 n.3 (1983).