American Federation of State, County and Municipal Employees Locals 2623-A, 2623-B and 191-B v. Executive Dept.

• Decision Date: 26 May 1981
• Docket Number: Nos. C-268-79,s. C-268-79
• Parties: , 113 L.R.R.M. (BNA) 2580, 22 A.L.R.4th 1076 AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, LOCALS 2623-A, 2623-B AND 191-B, Petitioners, v. EXECUTIVE DEPARTMENT, State of Oregon; Oregon State Penitentiary; Oregon Women's Corrections Center; Children's Services Division; Department of Human Resources and Employment Relations Board, Respondents. EXECUTIVE DEPARTMENT, State of Oregon; Oregon State Penitentiary; Oregon Women's Corrections Center; Children's Services Division; Department of Human Resources, Petitioners, v. AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, LOCALS 2623-A, 2623-B AND 191-B and Employment Relations Board, Respondents. ; CA 18045, CA 17923.
• Court: Oregon Court of Appeals

Page 1228

628 P.2d 1228

52 Or.App. 457, 113 L.R.R.M. (BNA) 2580,

22 A.L.R.4th 1076

AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL

EMPLOYEES, LOCALS 2623-A, 2623-B AND 191-B, Petitioners, v. EXECUTIVE DEPARTMENT, State of Oregon; Oregon State

Penitentiary; Oregon Women's Corrections Center; Children's

Services Division; Department of Human Resources and

Employment Relations Board, Respondents.

EXECUTIVE DEPARTMENT, State of Oregon; Oregon State

Penitentiary; Oregon Women's Corrections Center;

Children's Services Division; Department

of Human Resources, Petitioners, v. AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL

EMPLOYEES, LOCALS 2623-A, 2623-B AND 191-B and

Employment Relations Board, Respondents.

Nos. C-268-79; CA 18045, CA 17923.

Court of Appeals of Oregon.

Argued and Submitted Nov. 12, 1980.

Decided May 26, 1981.

Henry H. Drummonds, Eugene, argued the cause, for petitioners (CA 18045). With him, on brief were Jennifer Friesen, and Kulongoski, Heid, Durham & Drummonds, Eugene

Al J. Laue, Asst. Atty. Gen., Salem, argued the cause, for respondents (CA 18045). With him on brief were James M. Brown, Atty. Gen., John R. McCulloch, Jr., Sol. Gen., and William F. Gary, Deputy Sol. Gen., Salem.

Al J. Laue, Asst. Atty. Gen., Salem, argued the cause, for petitioners (CA 17923). With him on the brief were James M. Brown, Atty. Gen., John R. McCulloch, Jr., Sol. Gen., William F. Gary, Deputy Sol. Gen., and John S. Irvin, Asst. Atty. Gen., Salem.

Henry H. Drummonds, Eugene, argued the cause, for respondents (CA 17923). With him, on brief were Jennifer Friesen, and Kulongoski, Heid, Durham & Drummonds, Eugene.

Before GILLETTE, P. J., and ROBERTS and CAMPBELL, JJ.

ROBERTS, Judge.

We have consolidated these two appeals from a decision of the Employment Relations Board (ERB), interpreting for the first time the compulsory arbitration provisions of the public employes collective bargaining statute, ORS 243.650-782. They require us to determine whether the Oregon Legislature, in enacting the Public Employment Relations Act, ¹ intended to remove from the State Personnel Division the authority to set salaries for individual employes in collective bargaining units. ² In addition, we must determine the authority of an arbitrator to set salaries when employes in a bargaining unit are forbidden by law from striking.

The state's appeal places before us procedural and jurisdictional questions. The appeal by the local chapters of the American Federation of State, County and Municipal Employes (AFSCME) raises the substantive issue of whether certain members of these locals are entitled to the benefits of binding interest arbitration pursuant to ORS 243.742 ³ because they are forbidden from striking either as "guards" or "policemen" within the language of ORS 243.736 ⁴ or because they are "included in an appropriate bargaining unit which provides for resolution of labor disputes by referral to binding arbitration" under ORS 243.726(1). ⁵ We begin first with the history of this dispute.

HISTORY

The AFSCME chapters are public employe labor organizations as defined by ORS 243.650(12). The state agencies are public employers within the meaning of ORS 243.650(18). We are asked to review a final order of ERB ordering the employers to Local 2623-A is the exclusive representative of all classified employes of the Oregon State Penitentiary (OSP); Local 2623-B is the exclusive representative of all employes at the Oregon Women's Corrections Center (OWCC). Local 191-B is the exclusive representative of a unit of 32 juvenile parole officers of the Children's Services Division of the Oregon Department of Human Resources. The OSP bargaining unit contains approximately 400 members, the OWCC unit about 32.

implement an arbitrator's award of wages and benefits for certain members of Locals 2623-A and 2623-B, but denying extension of the award to other members of the chapters and all members of Local 191-B.

The parties had previously negotiated a central collective bargaining agreement, which expired by its terms on July 1, 1979. In January, 1979, the parties began to negotiate a successor central agreement, with the State Executive Department negotiating on behalf of the individual agency employers. In March, 1979, after a period of negotiation, an impasse was reached as to certain wage and benefit matters. The union, pursuant to ORS 243.712, requested ERB to initiate mediation. When mediation failed to facilitate an agreement, ERB conducted fact-finding, pursuant to ORS 243.722, in May and June, 1979. On June 20, 1979, the union notified ERB that it did not accept the findings and requested arbitration. ERB initiated arbitration on June 29, 1979, two days before the old contract expired and the state's new fiscal year began. ⁶

AFSCME's position was that the Public Employment Relations Act (PERA), ORS 243.650 et seq., required compulsory arbitration as the alternative to potential strikes by any of the employes in these bargaining units and that, therefore, the parties were required by law to submit their differences to an arbitrator for a final and binding decision. ORS 243.650(5). ⁷ The state has consistently taken the position that binding arbitration was required only in the case of the approximately 200 employees at the two correctional institutions who are "guards" or "security staff," specifically those classified as correctional officers, corporals or sergeants. The arbitrator's award, issued October 27, 1979, was unclear on this point. It said that management "had a point when it insists (sic) that any decision reached by this arbitrator would be limited to those employes who could fairly be said to be policemen, firemen or certain types of guards * * * " and candidly noted that the final decision as to scope would be made on appeal. The arbitrator did, however, award salary increases and adjustments to specific classes of workers not within the "security" classifications. The award was made retroactive to July 2, 1979.

The state refused to implement the award, even as to the employes it conceded were guards or security staff. On December 3, 1979, AFSCME filed an unfair labor practice proceeding before ERB, alleging, among other things, that by refusing to implement a compulsory arbitration award the state had violated ORS 243.742 and 243.752 and committed an unfair labor practice under ORS 243.672(1) (f) and (g). ⁸ the The ERB order, issued May 23, 1980, found that the state had violated ORS 243.672(1)(g) by refusing to implement the award for employes classified as correctional officers, corporals or sergeants and directed implementation of the award as to these employes. The petition for circuit court enforcement of the arbitration award was deferred for 30 days to allow the state to comply voluntarily.

complaint also petitioned ERB to [52 Or.App. 462] seek enforcement of the arbitrator's award in circuit court pursuant to ORS 243.752. On the same day the state filed a motion to set aside the arbitration award. This was later refiled as an answer to the complaint, raising ten affirmative defenses, some of which have resurfaced here. ⁹

The state did not comply with ERB's order. On June 23, 1980, both parties filed petitions for judicial review. AFSCME seeks reversal of that part of the order denying binding arbitration to other members of Locals 2623-A, 2623-B and 191-B. The state seeks reversal of those portions of the order finding an unfair labor practice and compelling implementation of the arbitration award.

The state alleges that ERB erred in ordering enforcement of the arbitration award, in finding that the award was just and reasonable, and in affirming the arbitration award without the approval of the Personnel Division and of the governor. The state also argues the award is invalid because the arbitrator failed to follow the required arbitration procedure.

AFSCME alleges that: ERB erred in interpreting ORS 243.736 to exclude from "guard" status employes of OSP and OWCC not formally designated as correctional officials; ERB did not make adequate findings of fact to support its conclusion that certain employes of OSP and OWCC are not "guards" within ORS 243.736; the remaining employes are entitled to arbitration because they are "included in an appropriate bargaining unit which provides for resolution of labor disputes by referral to binding arbitration" under ORS 243.726(1) and are thus forbidden to strike and are entitled to binding arbitration under ORS 243.742; ERB erred in interpreting ORS 243.736 to exclude the juvenile parole officers, members of Local 191-B, as "policemen" forbidden to strike and entitled to binding arbitration; and ERB erred in failing to base its enforcement order on ORS 243.672(1)(f) as well as ORS 243.672(1)(g).

The state's arguments, since they are procedural, are dealt with first.

JURISDICTION

The state contends that ERB was without jurisdiction to review the award because ORS 243.752, providing that an arbitration award "may be enforced at the instance of either party or the board in the circuit court for the county in which the dispute arose," mandates exclusive review by the circuit court. This contention is erroneous. The language of ORS 243.752 is first of all, permissive. ¹⁰ As one commentator has pointed out, an arbitrator's award has the nature of both a judgment and a contract, at least where it is the result of an agreement whereby the parties have agreed to comply with the award. Thus, it is common that when arbitration is conducted pursuant to a statute, it is usually provided that the award may be filed in court and judgment entered on it.

"The procedure for converting an award into a judgment is often followed in commercial arbitrations, but is practically never used in labor arbitrations. The reasons are, first, that the parties are anxious to avoid the courts and second, that labor disputes are usually of such a nature that no benefit would...