Am. Fed'n of State, Cnty. & Mun. Emps. v. City of Portland

• Jurisdiction: Oregon
• Parties: AMERICAN FEDERATION OF STATE, COUNTY and MUNICIPAL EMPLOYEES, COUNCIL 75, LOCAL 189, Petitioner, v. CITY OF PORTLAND, Respondent.
• Citation: 276 Or.App. 174,366 P.3d 787
• Docket Number: UP4608,A152795.
• Court: Oregon Court of Appeals
• Decision Date: 27 January 2016

276 Or.App. 174

366 P.3d 787

AMERICAN FEDERATION OF STATE, COUNTY and MUNICIPAL EMPLOYEES, COUNCIL 75, LOCAL 189, Petitioner,

v.CITY OF PORTLAND, Respondent.

UP4608

A152795.

Court of Appeals of Oregon.

Argued and Submitted Oct. 15, 2014.

Decided Jan. 27, 2016.

Jennifer K. Chapman argued the cause and filed the briefs for petitioner.

Denis M. Vannier, Deputy City Attorney, argued the cause and filed the brief for respondent.

Before ARMSTRONG, Presiding Judge, and EGAN, Judge, and NAKAMOTO, Judge, pro tempore.

NAKAMOTO, J., pro tempore.

Petitioner, American Federation of State, County, and Municipal Employees (AFSCME), Council 75, Local # 189 (the union), seeks review of a final order of the Employment Relations Board (ERB) dismissing the union's complaint that the City of Portland engaged in an unfair labor practice by unilaterally deciding to charge the union significant fees, based on staff time, for producing information relevant to pending grievances without first bargaining with the union over the practice. On judicial review, the union raises three assignments of error. The union contends that (1) ERB incorrectly concluded that the city's decision to charge the union significant fees for producing the information involves a permissive and not mandatory subject of bargaining; (2) alternatively, ERB failed to give the parties a full evidentiary hearing on the issue of the impacts of the city's decision; and (3) ERB erroneously limited a civil penalty against the city for its dilatory production of requested information to $200.

The threshold issue on the first assignment is whether ERB properly concluded that a prior ERB decision, South Lane Education Association v. South Lane School District No. 45J, 1 PECBR 459 (1975), controls and that, under that decision, charges for information related to grievances is a permissive subject for bargaining. We hold that ERB's conclusion is not supported by substantial reason. Because our disposition on the union's first assignment is dispositive, we need not discuss the union's second assignment of error. As for the third assignment of error, we conclude that ERB did not abuse its discretion in limiting the civil penalty. Accordingly, we reverse and remand for ERB to reconsider that part of its order addressing whether the city's decision on charges to the union for the production of information related to pending grievances involved a permissive or mandatory subject of bargaining.

I. BACKGROUND

To provide context, we begin with an overview of the applicable unfair labor practice statutes framing the parties' disagreement about whether a certain unilateral decision by the city concerned a subject of mandatory bargaining. Under the Public Employee Collective Bargaining Act (PECBA)—ORS 243.650 to 243.782 —a public employer must engage with the exclusive representative of its employees in bargaining over "employment relations." ORS 243.662. Matters that are included in the definition of "employment relations" are "mandatory" subjects of bargaining. Assn. of Oregon Corrections Emp. v. State of Oregon, 353 Or. 170, 176, 295 P.3d 38 (2013). Matters that are excluded from "employment relations" are "permissive" subjects of bargaining. Portland Fire Fighters' Assoc. v. City of Portland, 245 Or.App. 255, 264, 263 P.3d 1040 (2011) (citing Salem Police Employees Union v. City of Salem, 308 Or. 383, 390–91, 781 P.2d 335 (1989) ).

"Employment relations" is defined—although not exhaustively—by statute. Three Rivers Ed. Assn. v. Three Rivers Sch. Dist., 254 Or.App. 570, 574, 294 P.3d 547 (2013) (citing ORS 243.650(7) ). That term "includes, but is not limited to, matters concerning direct or indirect monetary benefits, hours, vacations, sick leave, grievance procedures and other conditions of employment." ORS 243.650(7)(a). Permissive subjects of bargaining are identified in other parts of ORS 243.650(7). As relevant here, ORS 243.650(7)(b) provides that "employment relations" does not include "subjects determined to be permissive, nonmandatory subjects of bargaining by [ERB] prior to June 6, 1995." And, even when the change involves a permissive subject of bargaining, if the change "has an impact on a mandatory subject, the public employer may be required to bargain regarding that impact." Three Rivers Ed. Assn., 254 Or.App. at 574, 294 P.3d 547.

To lawfully change an employment condition that is a mandatory subject of bargaining, the public employer must notify the exclusive representative of the anticipated change and complete the bargaining process. ORS 243.698(2). It is an unfair labor practice for a public employer or its designated representative to "[r]efuse to bargain collectively in good faith" over mandatory subjects of bargaining. ORS 243.672(1)(e) ; see also Assn. of Oregon Corrections Emp., 353 Or. at 176, 295 P.3d 38 ("[A] public employer commits an unfair labor practice under ORS 243.672(1)(e) if it refuses to bargain with respect to matters that are included within, and not excluded by, the definition of ‘employment relations.’ "). Accordingly, the primary issue in our review of ERB's order concerns whether the city engaged in an unfair labor practice by unilaterally changing the status quo and refusing to bargain over a mandatory subject of bargaining.

We relate the relevant facts, which are undisputed, and the procedural history as they appear in ERB's orders and the record. See Meltebeke v. Bureau of Labor and Industries, 322 Or. 132, 134, 903 P.2d 351 (1995) (uncontested findings are adopted on judicial review). We begin with the city's historical charges to the union for producing documents.

Since 2001, the city has had a policy, its "Public Records Fee Schedule," regarding charges for time that city staff spend responding to public records requests. The union had notice of this policy and any changes made to it. The union did not demand to bargain over the public records policy, but it also did not agree to the policy's applicability to the union's requests for information under PECBA. Under the 2007–2008 version of the public records policy, the standard fee for obtaining photocopies of city documents was 25 cents per copy, which covered the cost of some staff time.

Before 2004, the city had generally charged the union, if it charged the union at all, five cents per photocopy to produce documents requested under PECBA. By 2004, though, the city had begun charging the union 25 cents per page to produce documents in response to some requests for information under PECBA. At least until the 2008 events at issue in this case, the city had continued its practice of (1) charging the union nothing for small quantities of documents and (2) charging nothing for some easy-to-provide collections of documents. The record in this case indicates that, between 2004 and 2008, the city never charged the union more than $172 per request for producing documents.

The city's charges for producing documents to the union significantly increased in 2008, when the city began charging the union for staff time to respond to document requests. In June of that year, the city suspended one of its employees represented by the union. The union filed a grievance with the city and requested information, including documents reflecting discipline that similarly situated employees had received, as well as copies of applicable rules and policies. A month after the union's information request, the city provided the union with a cost estimate in the amount of $200 for production of the documents. The union objected to that amount.

In July 2008, the city terminated a different employee represented by the union. As it pursued a grievance on behalf of the second employee, the union submitted a series of information requests to the city. The city promptly provided some of the information requested and sent the union a bill for $41.25 for the production. The cover letter with the invoice stated that the amount reflected "the cost associated with this production of documents" and that a copy of the fee schedule—the Public Records Fee Schedule—was available on the city's website. That was not the first time that the city had charged the union a nominal fee for the production of documents. That was, however, the first time that the city explicitly informed the union in writing that its charges for complying with information requests were based on the city's Public Records Fee Schedule.

The city later supplemented its production of documents to the union. It also sent the union an invoice for $622.08. The union objected to the charge on the ground that the city changed the status quo, and the union demanded that the city "provide the information at no charge or nominal charge," as the city "has done in the past."

In addition to objecting to the amount that the city was charging for production, the union objected to the city's delays in producing documents that the union had requested. In the case of the terminated employee, a month and a half after the union requested documents to assist in its representation of the employee, the city, for the first time, informed the union that it needed clarification concerning the information request. With respect to the suspended employee, the city notified the union that it had questions about its document requests two months after the request was made and again three months after the request was made.

In December 2008, the union filed its unfair labor practice complaint with ERB. The union's amended complaint alleged three PECBA violations: (1) a violation of ORS 243.672(1)(e) that occurred when the city began charging the union for the cost of staff time needed to produce information; (2) a violation of ORS 243.672(1)(e) that occurred when the city failed to produce information the union requested related to the grievances; and (3) a violation of ORS 243.672(1)(b) that occurred when the city imposed fees for information requested by the union and allegedly interfered with the...