In re Arbitration Between City of Portland & Dist. Council of Trade Unions

Decision Date18 February 2021
PartiesIn the Matter of the Arbitration Between CITY OF PORTLAND, OREGON, Employer, and DISTRICT COUNCIL OF TRADE UNIONS, Union.
CourtOregon Employee Relations Board

BEFORE STEPHEN DOUGLAS BONNEY, ARBITRATOR

Covid-19 Deferred Holiday Grievance

Appearances:

For the Union: Katelyn S. Oldham, Esq., Tedesco Law Group, Portland, Oregon.

For the City: Matthew V. Farley & Franco A. Lucchin, Senior Deputy City Attorneys, Portland, Oregon.

OPINION & AWARD
Introduction

in accordance with the grievance procedure set forth in their collective bargaining agreement (CBA or labor agreement), the City of Portland, Oregon (Portland, City, or Employer) and the District Council of Trade Unions (DCTU or Unions) requested a panel of arbitrators from the Oregon Employment Relations Board and ultimately selected me to serve as the arbitrator in this dispute.

The parties appeared for three days of hearing by videoconference on November 18, 19, and 20, 2020, and a court reporter made a complete record of the hearing. We used the Zoom platform for the videoconference, and I served as the host. The parties had a full and fair opportunity to make opening statements, to present documentary and other evidence, and to examine and cross-examine witnesses. Following the presentation of evidence, counsel agreed to submit post-hearing briefs in place of oral closing arguments. I received both briefs on February 5, 2020, thus closing the record.

Issue

At the beginning of the hearing, the City suggested that it might raise an issue of procedural arbitrability, but during the course of the hearing the City dropped that possibility. Moreover, the City has not argued any issue of arbitrability in its brief. Thus, I find that the case is properly before me for a final decision on the merits.

Although the parties were unable to stipulate to a joint statement of the merits issue, they agreed to allow me to frame the issue based on the evidence and arguments presented in this case. Tr. Vol. I, 4:22 to 5:2. The party initiating a grievance is ultimately the master of the question considered in the grievance procedure, but - in framing the issue - an arbitrator should also consider the evidence and arguments adduced by the parties. In addition, the issue must be stated in a fair and neutral manner.

In its brief, the DCTU stated the merits issue as follows:

Under Section 9.12 of the Collective Bargaining Agreement between the District Council of Trade Unions ("DCTU") and the City of Portland, did the March 17, 2020 emergency declaration and citywide closure trigger the Section 9.12 deferred holiday pay for those employees designated by management as essential and/or critical who were required to report to work? If so, what is the remedy?

In its brief, the City stated the merits issue as follows:

Did the City's 2020-2021 policy restricting access to certain buildings, and converting to telework in response to the COVID-19 health pandemic apply to the "deferred holiday" provision under Article 9.12 for inclement weather/natural disaster events? If so, did the Mayor order an applicable Citywide closure as required under the Article 9.12, and what, if anything, is the remedy?

Based on the grievances filed and processed by the Union, the evidence adduced at the hearing, and the other submissions and arguments of the parties, I find that the issue in this case should be stated as follows:

Did the steps the City took in responding to the global coronavirus pandemic beginning in mid-March 2020 trigger the deferred holiday provisions in § 9.12 of the CBA? If so, what is the remedy?
Findings of Fact

Portland is the largest city in Oregon and, according to the most recent estimates, has a population in excess of 650,000. In contrast to every other major city in the United States, Portland maintains a commission form of government. Specifically, the citizens of Portland elect a mayor and four commissioners, each of whom has legislative, administrative, and quasi-judicial powers and authorities. Because of its city commission structure, Portland does not have a city manager. Instead, the Mayor and Commissioners "serve as administrators of City departments, individually overseeing bureaus and carrying out policies approved by the Council. The Mayor determines department and bureau assignments, which do not necessarily correspond to departmental titles."1

The City employs a staff of more than 6000 full- and part-time employees to do the people's business. The municipal bureaucracy is divided into departments and bureaus, each headed by a director, who ultimately answers to the elected official (Mayor or Commissioner) assigned to oversee the specific department or bureau. For instance, the Mayor oversees the City's police department. In and before March 2020, the vast majority of the City's employees worked in traditional locations, commuting to and from a physical workplace owned or leased by the City each day and doing their jobs in those City workplaces using City owned equipment.Although a few City employees worked from home, teleworking was decidedly the exception rather than the rule before April 2020.

The DCTU is a coalition of six of the unions that represent City employees for purposes of collective bargaining. The members of the DCTU engage in joint collective bargaining with the City and are parties to a joint labor agreement with the City. The current members of the DCTU are AFSCME Local 189, IBEW Local 48, Machinists & Aerospace Workers District Lodge 24, Operating Engineers Local 701, Plumbers Local 290, and Painters & Allied Trades District Council 5. In the past, a Laborers local had been a member of the DCTU, but the Laborers dropped out of the DCTU in or around 2015 and now bargains with the City separately. Police and fire unions represent large numbers of the City's employees but are not members of the DCTU and thus bargain separately with the City. The DCTU's member unions represent a few thousand City employees, and - among the DCTU's member organizations - AFSCME Local 189 represents the largest number of City employees.

In 2017, the parties began bargaining over a successor CBA. Among other issues, the DCTU wanted to negotiate over the effects of citywide closures when the City would direct most of its employees to stay home with pay but would require essential employees to report to work as usual. Winter storms constituted the most common reason for such citywide closures. Both the DCTU and the City recognized that such closures raised issues of hazardous duty and pay equity. Specifically, essential employees had to brave the elements to report to work and had to work for their pay while non-essential employees got to stay home safe and sound while getting paid without being required to work.

Initially, the DCTU proposed contract language designed to address its concerns along these lines. The parties bargained over these issues during several negotiating sessions, and theCity proposed alternative contract language designed to address the DCTU's concerns.2 Ultimately, the parties agreed to the City's proposed contract language, which was incorporated into the 2017-2020 labor agreement as §§ 9.12 and 9.12.1:

9.12 Essential Employees. Any employee who is designated by management as an Essential Employee and is required to report to work when the Mayor or his designee announces a Citywide closure and directs non-essential employees to stay home, will be compensated with one deferred holiday for every full shift they work during such an event. The deferred holiday will be equal to the number of hours the essential employee was regularly scheduled to work on the day of the event.
9.12.1 Employees whose deferred holiday bank is full, will be given the equivalent time in pay. Employees who earn a deferred holiday within 30 days of the end of the calendar year will be allowed to carry over said holiday to the subsequent year's deferred holiday bank.

In late-2019, doctors in Wuhan, China, began to report a widespread outbreak of pneumonia and disease, which turned out to be caused by a novel coronavirus, SARS-CoV-2.3 Eventually, the disease caused by the novel coronavirus came to be known as Covid-19. The first case of Covid-19 in the United States was diagnosed in January 2020, and - on January 31, 2020 - the United States Department of Health & Human Services declared a public health emergency due to the global coronavirus outbreak. By February, public health officials at the federal and state levels of government in the United States were warning that the coronavirus posed a serious danger of becoming a global pandemic, and the World Health Organization finally declared it a pandemic in early March 2020. Community spread of the disease was identified in the Northwest in early to mid-February 2020. On March 8, 2020, Oregon Governor Kate Brown issued Executive Order 20-03 in which she declared a state of emergency due to thenovel coronavirus outbreak. On March 13, 2020, the former President finally declared a federal state of emergency. Those state and federal emergency declarations have been renewed many times since March 2020.

On March 12, 2020, Portland Mayor Ted Wheeler issued a staff directive in which he announced he had joined with Governor Brown and Multnomah County Chair Deborah Kafoury that morning to announce a local state of emergency and specific social distancing measures to attempt to control the spread of the novel coronavirus. In addition to ordering the postponement or cancelation of all non-essential work gatherings and face-to-face meetings, Mayor Wheeler's March 12 message announced that the City had issued guidance "to ease teleworking restrictions." All of these initial measures were intended to "ensure the City continues delivering core services[.]"

In an email to all City staff dated March 15, 2020, Tom Rinehart, the City's Chief Administrative Officer (CAO), announced that "Effective today, I will be...

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