263 P.3d 1040
Or. Ct. App.2011Background
- The Association is the exclusive bargaining representative for all sworn Fire Bureau personnel; the Disability Fund administers benefits and provides for disability-related compensation.
- From 2001 to 2007 the City implemented a temporary light-duty policy; in 2002 it began medically separating permanently restricted employees and considered subsidizing light-duty returns, leading to ongoing discussions through 2006.
- A 2005-07 CBA included a management rights clause reserving city control over employment decisions; five potential light-duty positions were analyzed, with only driver instructor appearing on the salary schedule.
- In 2006 the City proposed a pilot return-to-work program for permanently restricted employees; the Disability Fund identified candidates and training was scheduled for December 2006.
- The Association demanded bargaining over the new positions and terms of the return-to-work program in December 2006; the City declined as premature and permissive, though informal discussions occurred.
- In March 2007 the City issued a Return to Work Policy Pilot Program; the Association filed an unfair labor practice complaint in April 2007; ERB ruled the City violated by notice and bargaining failures but found some aspects permissive.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Duty to bargain over mandatory impacts of return-to-work program | Association | City | ERB erred; must construe the CBA first |
| ERB's failure to construe the CBA before determining impacts | Association | City | Reversal required; ERB must interpret the CBA to assess authorized unilateral action |
| Whether the return-to-work decision changes status quo subject to bargaining | Association | City | Remand to determine whether CBA authorized changes; always construe CBA first |
| Effect of Measure 26-93 on post-retirement medical benefits | Association | City | Not resolved on final merits; remand for reconsideration |
Key Cases Cited
- Salem Police Employees Union v. City of Salem, 308 Or. 383 (1989) (describes mandatory-permissive dichotomy and duty to bargain on impacts)
- Beaverton Police Assoc. v. City of Beaverton, 194 Or. App. 531 (2004) (impacts on mandatory subjects can trigger bargaining if substantial)
- Association of Oregon Corrections Employees v. DOC, 209 Or. App. 761 (2006) (ERB must construe CBA to determine authority to unilaterally affect mandatory subjects)
- Marion County Law Enforcement Assn. v. Marion County, 130 Or. App. 569 (1994) (cited for comparative principle on changes to status quo and bargaining rights)