Portland State University Chapter of the American Ass'n of University Professors v. Portland State University
246 P.3d 1162
Or. Ct. App.2010Background
- PSU and the Association entered into a CBA that created a grievance process with deadlines, stages, and binding arbitration, but allowed PSU to withdraw when a matter was pursued outside PSU.
- Article 28.B.2 allowed PSU to decline to entertain a grievance if the employee sought resolution through an outside agency (administrative or judicial).
- Wilson, a PSU employee and Association member, alleged gender discrimination related to nonrenewal and retaliation for supporting a colleague's sexual harassment claim.
- Wilson filed an EEOC intake and the AA/EO office issued a report recommending no action, which PSU adopted; the Association sought a copy but was denied.
- PSU refused to process subsequent grievances citing Article 28.B.2; the Association filed unfair labor practice (ULP) charges alleging violation of ORS 243.672(1)(g) and retaliation under Title VII.
- The Employment Relations Board (ERB) ordered PSU to process the grievances, and PSU sought judicial review on two assignments of error.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| ERB authority to decide contract enforceability | Association: ERB may interpret the contract and find enforceability issues. | PSU: ERB lacked authority to determine retaliation under Title VII/ORS 659A.030. | ERB has authority to determine enforceability of contract terms conflicting with law. |
| Enforceability of Article 28.B.2 under Burlington standard | Association: Article 28.B.2 unlawfully penalizes protected activity and is unenforceable as applied. | PSU: article 28.B.2 is facially permissible and its application not automatically unlawful. | Article 28.B.2 is unenforceable as applied under the appropriate material-adverse-action standard; remanded for reconsideration. |
Key Cases Cited
- Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (U.S. 2006) (material adversity standard for retaliation injuries)
- 14 Penn Plaza LLC v. Pyett, 129 S. Ct. 1456 (S. Ct. 2009) (grievance/arbitration clauses may be mandatory in employment disputes; contract rights)
- Somoza v. University of Denver, 513 F.3d 1206 (10th Cir. 2008) (three-part test for retaliation under Title VII)
- Steele v. Mayoral, 231 Or.App. 603 (Or. App. 2009) (defines material adversity in Oregon appellate context)