Gresham Grade Teachers Ass'n v. Gresham Grade School Dist. No. 4, C-184-78

• Decision Date: 29 June 1981
• Docket Number: No. C-184-78,C-184-78
• Citation: 630 P.2d 1304,52 Or.App. 881
• Parties: GRESHAM GRADE TEACHERS ASSOCIATION, Petitioner, Cross-Respondent, v. GRESHAM GRADE SCHOOL DISTRICT NO. 4 and Fred Larson, Respondents, Cross- Appellants. ERB; CA 18202.
• Court: Oregon Court of Appeals

Page 1304

630 P.2d 1304

52 Or.App. 881

GRESHAM GRADE TEACHERS ASSOCIATION, Petitioner, Cross-Respondent, v. GRESHAM GRADE SCHOOL DISTRICT NO. 4 and Fred Larson Respondents, Cross- Appellants.

ERB No. C-184-78; CA 18202.

Court of Appeals of Oregon.

Argued and Submitted Dec. 5, 1980.

Decided June 29, 1981.

Henry H. Drummonds, Eugene, argued the cause for petitioner, cross-respondent. With him on the briefs was Kulongoski, Heid, Durham & Drummonds, Eugene.

Susan P. Graber, Portland, argued the cause for respondents, cross-appellants. With her on the briefs were Darrell Smith, Salem, and Stoel, Rives, Boley, Fraser & Wyse, Portland.

Before JOSEPH, P. J., and WARDEN and WARREN, JJ.

JOSEPH, Chief Judge.

This proceeding is on judicial review of an order of the Employment Relations Board (ERB) which found that Gresham Grade School District No. 4 (District) committed certain unfair labor practices during and after its 1978 contract negotiations with the Gresham Grade Teachers Association (Association). On May 30, 1980, ERB issued the order in which it found that the District refused to bargain over "student contact hours," ¹ a mandatory subject of bargaining, and unilaterally implemented an increase in those hours, in breach of its duty to bargain in good faith under ORS 243.672(1)(e). It also found that the District violated ORS 243.672(1)(h) by refusing to reduce to writing and sign a collective bargaining agreement which accurately reflected the parties' agreement. The relevant statutory provisions and the pertinent parts of the Board's order are set out in the margin. ²

ERB's order directed the District to cease and desist from refusing to bargain over student contact hours and from continuing to implement its unilateral of the increase in those hours. It further directed the District to sign, on the request of the Association, a collective bargaining agreement containing language which would reflect accurately the agreement of the parties. The order did not provide other relief sought by the Association, nor did it award attorney fees. It did grant the District's motion to remove Fred Larson, the District negotiator, as a party to the order. ³

The Association seeks review of the remedial portion of the ERB order, insofar as it did not provide for a "make-whole" remedy of compensation for extra work during the unlawfully expanded student contact hours or for the award of attorney fees. It also seeks reversal of ERB's ruling which removed Larson as a party. The District cross-petitions for review of ERB's conclusions on the merits of the unfair labor practice charges.

The Association is the exclusive bargaining representative of the bargaining unit, composed of the certificated teachers employed by the District. Larson was employed by the District as its negotiator. In April, 1978, while negotiations for a contract to cover the 1978-1980 period were underway, the District publicly announced a plan to increase the "instructional time" for students in grades four through six by extending school attendance time for those students 45 to 60 minutes per day. The Association voiced its opposition to this plan at a school board meeting on April 13 1978. ⁴ On April 27, 1978, in a letter to the District, the Association president objected to the plan on the ground that it would increase student contact time and decrease teacher preparation time. The president noted that the parties were presently bargaining over student contact hours and that, should the District adopt its plan, the Association would seek redress with the proper state agency.

Notwithstanding this protest, the District adopted its plan at its May 11, 1978, meeting. It appears from the record that sometime during contract negotiations, the Association presented a proposal covering student contact hours to the District, but it was later withdrawn. However, it is not clear from the record in what form the proposal appeared or what the precise contents of that proposal were, or when and why it was withdrawn.

On July 24, 1978, a fact finder's report on the parties' respective contract proposals was issued. It recommended against the use of language in the District's "zipper clause" proposal that:

"The employer and the Association, for the life of this Agreement, each voluntarily and unqualifiedly waives the right, and each agrees that the other shall not be obligated to bargain collectively with respect to any subject or matter, even though such subjects or matters may not have been within the knowledge or contemplation of either or both of the parties at the time they negotiated or signed this Agreement."

Instead it suggested the use of the following clause:

"Therefore, the District and the Association, for the life of this Agreement, each voluntarily and unqualifiedly waives the right, and each agrees that the other shall not be obligated to bargain collectively with respect to any subject or matter which is covered by this Agreement." (Emphasis supplied.)

On August 3, 1978, in response to another Association letter objecting to the plan, the District negotiator wrote:

" * * * You point out that the GGTA has determined to bargain over any increase in pupil contact hours, and that the Association demands an agreement be reached over this issue in bargaining rather than the District making a unilateral change.

"It is our understanding that your proposal in bargaining is for compensation at twice the teacher's hourly rate for instructional time in excess of 41/2 hours. Presumably if your proposal is simply an economic demand, as you portrayed it to the fact finder, and therefore a mandatory subject for bargaining, then surely whatever decision regarding length of instructional day is reached by the District would simply result in a change in the amount of compensation received by affected teachers.

"If, on the other hand, you were attempting to restrict the Board's inherent right to determine the length of the instructional day, then such issue would be a permissive subject. Based on this view, we do not believe that the District is restricted in determining the length of the instructional day, and in fact, any such changes would be a proper exercise of the District's discretion.

" * * *."

The District's plan was implemented at the outset of the new school year on September 5, 1978.

The parties did not reach a tentative agreement until September 30, 1978, when they initialed a package of provisions. None of these provisions contained explicit language concerning student contact hours. One that was so initialed was labeled simply "fact-finder's recommendation" in reference to the zipper clause. The parties agreed that Larson, the District negotiator, would cause the package to be typed up in a "clean" draft for presentation to the Association membership for ratification. The zipper clause as it appeared in Larson's typed version read as follows:

"The parties acknowledge that during the negotiations which resulted in this Agreement, each had the unlimited right and opportunity to make demands and proposals with respect to any subject or matter appropriate for collective bargaining, and that the understandings and agreements arrived at by the parties after the exercise of that right and opportunity are set forth in this Agreement. Therefore, the Employer and the Association, for the life of this Agreement, each voluntarily and unqualifiedly waives the right, and each agrees that the other shall not be obligated to bargain collectively with respect to any subject or matter which is covered by this Agreement. During the life of this contract, however, the parties may bargain collectively about the terms of successor collective bargaining agreements. All terms and conditions of employment not covered by this Agreement and well-established customs and past practices shall continue to be subject to the Employer's direction and control and shall not be subject to further negotiation or to the grievance procedure for the term thereof." (Emphasis supplied.)

Meanwhile, prior to receipt of Larson's clean draft, the Association's representatives made a "summary" of the agreement's contents as they understood them ⁵ and presented it to the bargaining unit members, who ratified the agreement. The District ratified the agreement as prepared by Larson, and the parties executed the Larson version on October 11, 1978.

After the discovery that the zipper clause language contained in the signed document differed in substance from that contained in the Association's summary and as initialed by the parties, the Association demanded that the District sign a new contract containing the fact finder's recommended zipper clause language. When the District refused to do so, the unfair labor practice complaint was filed.

DISTRICT'S CROSS-PETITION

The District challenges the substantive conclusions of law contained in ERB's order. If that challenge were successful, the Association's petition would be moot. We deal, therefore, with the cross-appeal first. For the reasons set forth below, we affirm ERB's conclusions on the merits of the unfair labor practice charge.

1. Student contact hours

The District first contends that ERB erred in concluding that the District committed an unfair labor practice by refusing to bargain about student contact hours. ⁶ Characterizing its action as an increase in the "students' instructional day" (the "length of time pupils must be in class on a school day"), the District argues that such an increase is not a mandatory subject of bargaining. ⁷ It claims that the District is statutorily authorized ⁸ to fix the hours of instruction and that this purely managerial decision to alter the "school calendar" belongs to the District alone and not at the bargaining table. It admits that the "effects" of that decision (which may include effects upon student contact time, teacher preparation time, and teacher workday) may be ⁹...