Eugene Educ. Ass'n v. Eugene School Dist. No. 4J

• Decision Date: 13 October 1980
• Docket Number: No. C-53-79,C-53-79
• Citation: 617 P.2d 935,48 Or.App. 747
• Parties: EUGENE EDUCATION ASSOCIATION, Petitioner, v. EUGENE SCHOOL DISTRICT NO. 4J, Richard Miller, and Employment Relations Board, Respondents. ; CA 16850.
• Court: Oregon Court of Appeals

Page 935

617 P.2d 935

48 Or.App. 747

EUGENE EDUCATION ASSOCIATION, Petitioner, v. EUGENE SCHOOL DISTRICT NO. 4J, Richard Miller, and Employment Relations Board, Respondents.

No. C-53-79; CA 16850.

Court of Appeals of Oregon.

Argued and Submitted July 21, 1980.

Decided Oct. 13, 1980.

Robert Durham, Eugene, argued the cause for petitioner. On the brief were Kulongoski, Heid, Durham & Drummonds, Jennifer Friesen and Henry H. Drummonds, Eugene.

Joe B. Richards, Eugene, argued the cause for respondents, Eugene School Dist. No. 4J and Richard Miller. With him on the brief was Luvaas, Cobb, Richards & Fraser, P. C., Eugene.

Al J. Laue, Asst. Atty. Gen., Salem, waived appearance for respondent Employment Relations Bd.

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

GILLETTE, Presiding Judge.

This is an appeal from an order from the Employment Relations Board (Board) dismissing the Eugene Education Association's (Association) complaint that Eugene School District No. 4J and its designated representative (District) refused to bargain about an Association proposal for inclusion in the parties' collective bargaining agreement, thereby engaging in an unfair labor practice. We reverse and remand.

The Association proposed that the following be included in the parties' collective bargaining agreement as the definition of a grievance:

"Grievance: A grievance is a claim based on an alleged inequitable or unfair event or condition CAUSED BY THE VIOLATION of written school board policies, written administrative rules and regulations, mandatory bargainable practices or the interpretation, application or violation of provisions of this agreement.

"Disputes involving either attempts to change the collective bargaining agreement or representation disputes arising under ORS 243.682, 243.686 or 243.692 are not grievable under this provision.

"Nothing in this section is intended to restrict the District's right to unilaterally change written school board policies, written administrative rules and regulations or practices that are determined to be permissive subjects of bargaining." (Emphasis supplied.)

The Association's proposal would subject to third-party arbitration a claim of unfairness or inequity caused by a violation of written District policy, rules or regulations. The District's written policies, rules and regulations cover, inter alia, the school calendar, teacher evaluation, and student discipline. The Association's proposal would not require the District to promulgate or repeal any policies, rules or regulations; their existence and content would remain entirely within the District's discretion. The District refused to discuss this proposal, considering it merely a permissive subject for collective bargaining, and not a mandatory subject. The Board agreed.

A public employer's refusal " * * * to meet at reasonable times and confer in good faith with respect to employment relations * * *," ORS 243.650(4) ¹ is an unfair labor practice. ORS 243.650(4); ORS 243.672(1)(e). ² ORS 243.650(7) defines employment relations:

"(7) 'Employment relations' includes, but is not limited to, matters concerning direct or indirect monetary benefits, hours, vacations, sick leave, grievance procedures and other conditions of employment." (Emphasis supplied).

Bargaining subjects that are specifically mentioned in ORS 243.650(7) are mandatory bargaining subjects. Refusal to bargain about them is an unfair labor practice. Springfield Ed. Assn. v. Sch. Dist., 24 Or.App. 751, 758, 547 P.2d 647, modified on other grounds, 25 Or.App. 407, 549 P.2d 1141, rev. den. (1976); (hereinafter Springfield I); Eugene Ed. Assn. v. Eugene Sch. Dist., 46 Or.App. 733, 737, 613 P.2d 79 (1980). Subjects not expressly mentioned in ORS 243.650(7) are only mandatory bargaining subjects if their effect on teachers' employment outweighs matters of educational policy. Matters which are not mandatory bargaining subjects are permissive bargaining subjects. Bargaining about permissive subjects is not required and failure to bargain will not result in an unfair labor practice. Springfield I, supra, 24 Or.App. at 759, 547 P.2d 647; Springfield Ed. Assn. v. Sch. Dist., 42 Or.App. 93, 95, 600 P.2d 425, rev. allowed 288 Or. 253 (1979). (hereinafter Springfield III); Eugene Ed. Assn. v. Eugene Sch. Dist., supra, 46 Or.App. at 740, 613 P.2d 79.

In this case, the Association's proposal at least superficially appears to relate to a subject specifically mentioned in ORS 243.650(7), viz., "grievance procedures," and therefore appears to be a mandatory bargaining subject. As the Board interpreted the term "grievance procedures," however, the Association's proposal was not a mandatory subject of bargaining.

The Board explained its conclusion this way:

" * * *

"The Association's proposal is clearly a permissive subject of bargaining. First, the Association argues that the proposal is mandatory because it involves grievance procedures, a term specifically referred to in the statutory definition of employment relations in ORS 243.650(7). In a recent case, this Board held that it will not assume that bargaining proposals, such as the one herein, are 'per se' mandatory subjects merely because they relate to matters specifically included within the statutory definition of employment relations. Rather, this Board will examine the substance and essence of bargaining proposals to determine the subject matter involved and will review such proposals to insure that they are consistent with prior decisions of this Board holding that certain subjects are permissive, notwithstanding a possible relationship between those subjects and subjects specifically included in the definition of employment relations. In the instant case, the substance and essence of the proposal is to subject permissive subjects of bargaining i. e., school district policies, rules and regulations to binding third party arbitration. This Board has squarely held that proposals which are intended to provide teachers with the opportunity to grieve permissive subjects of bargaining are permissive proposals.

"Second, the Association argues that the proposal is mandatory because it would make the unfair event or condition...