Int'l Ass'n of Firefighters Local 1660 v. Tualatin Valley Fire & Rescue, Case No. UP-024-20
| Decision Date | 09 July 2021 |
| Docket Number | Case No. UP-024-20 |
| Parties | INTERNATIONAL ASSOCIATION OF FIREFIGHTERS LOCAL 1660 and ROCKY HANES, Complainants, v. TUALATIN VALLEY FIRE AND RESCUE, Respondent. |
| Court | Oregon Employee Relations Board |
(UNFAIR LABOR PRACTICE)
A hearing was held before Administrative Law Judge (ALJ) B. Carlton Grew on January 15, 2021 via teleconference hosted from Portland, Oregon. The record closed with submission of the parties' post-hearing briefs on March 12, 2021.
Noah Scott Warman, Tedesco Law Group, Portland, Oregon represented Complainants International Association of Firefighters Local 1660 and Rocky Hanes.
Dan Rowan, CDR Labor Law, LLC, Portland, Oregon represented Respondent Tualatin Valley Fire and Rescue.
On January 17, 2019, Complainants International Association of Firefighters Local 1660 (Association) and Rocky Hanes (Hanes) filed this Complaint against Tualatin Valley Fire and Rescue (District or TVFR) alleging violations of the Public Employees Collective Bargaining Act (PECBA). The District filed a timely answer. On March 12, 2021, the parties submitted their post-hearing briefs.
The issues presented for hearing are:
1. With respect to ORS 243.672(1)(a), did the District discipline Hanes on April 16, 2020 because of his PECBA-protected activities as president of the Association?
2. With respect to ORS 243.672(1)(c), did the District discriminate against Hanes regarding his tenure and terms and conditions of employment, by means of the April 16, 2020 discipline, for the purpose of discouraging membership in the Association?
3. If Respondent prevails, should the Association be ordered to pay the District a civil penalty?
This Board concludes that the District did not violate ORS 243.672(1)(a) and (c) by disciplining Hanes because of his PECBA-protected activities as president of the Association, and declines to impose a civil penalty on the Association.
1. At the close of Complainants' evidence at hearing, Respondent moved that the case be dismissed. The ALJ correctly denied this motion. Such a motion has rarely, if ever, been granted by an ALJ. It would be a rare case in which paucity of the evidence was so apparent as to justify the risk of time and expense of rescheduling the hearing in the event of this Board's reversal of the ALJ. See also Public Employees Union v. Jefferson County, Case No. UP-19-99, 18 PECBR 245, 250 (1999) (requiring complainant, in cases where respondent fails to file an answer, to present a prima facie case); ORS 183.415(10). In this case, Complainants' testimony and exhibits were sufficient to entertain a conclusion that Respondent had violated ORS 243.672(1)(a) and (c).
2. The ALJ's remaining rulings have been reviewed and are correct.
1. The District is a public employer, as defined in ORS 243.650(20). The District has 27 fire stations and more than 500 employees.
2. The Association is a labor organization as defined by ORS 243.650(13) and exclusive representative of a bargaining unit of approximately 450 fire suppression and prevention personnel employed by the District. The Association has represented the District firefighting employees since the District was first created.
3. The District was created in 1989 by merging the Tualatin Rural Fire Protection District and the Washington County Fire District 1. It is the largest fire district in Oregon, covering portions of four counties, nearly a dozen cities, and more than half a million residents.
4. Hanes is a District Fire Captain stationed at Fire Station 57 in West Linn. Hanes is a bargaining unit member and has been the president of the Association since 2000.
5. The Association and District have had an uneventful relationship for many years. The most recent bargaining over a collective bargaining agreement was unremarkable, and no grievances or unfair labor practice complaints had been filed in twenty years. However, there had been some relatively recent changes in District management. Division Chief Greg Ladrow had been in that position six years (after 19 years of prior service with the District); Assistant Chief of Operations Kenny Frentress, also a long-term District employee, became Assistant Chief a few years ago; and Fire Chief Deric Weiss was not yet chief in 2018 (his predecessor signed the 2018-2022 collective bargaining agreement).
6. In October 2019, the parties entered a Memorandum of Understanding regarding scheduling (scheduling agreement or MOU). Hanes was one of the Union officers who negotiated the agreement. Assistant Chief Frentress, who had been a member of the Association bargaining unit and continues to pay part-time fair share payer dues to the Association, was the District's lead spokesperson in those negotiations.
7. In November 2019, the parties had several meetings regarding the implementation of the scheduling agreement. Hanes and Frentress and other representatives of the District and Association attended these meetings.
8. The parties failed to agree on the interpretation and implementation of the scheduling agreement. On December 27, 2019, Hanes filed a grievance and demand for arbitration on behalf of the Association regarding the agreement.
9. On January 28, 20201, Hanes, Frentress and other representatives of the parties participated in a mediation session regarding the scheduling MOU grievance. The mediation session did not resolve the grievance.
10. Association Vice President Gary Burton (VP Burton) believed that the relationship between the Association and the District had become strained as a result of the District leadership changes. However, in communications over the scheduling agreement and in all of the following meetings relevant to Hanes' discipline, District managers did not engage in threats, anger, or accusations of intransigence, bad faith, or dishonesty, and there was no suggestion that retaliation from the District was in the offing. The behavior of the parties' representatives during these meetings was professional and polite.
District and Station organization
11. The District is headed by Fire Chief Weiss. His direct subordinate is Assistant Chief Frentress. The next step down in the hierarchy is Division Chief Ladrow, who supervises Battalion Chiefs. The Battalion Chiefs supervise the Captains, Lieutenants, and line staff.
12. The District is divided into three geographical areas, each with a Battalion Chief as the immediate supervisor for all stations and their companies in each particular geographic area.
13. On March 5, Hanes was the Captain on duty at Station 57. As Captain, Hanes was the ranking officer at the station2 and in command of the Station 57 fire engine and the three other members of the crew assigned to it. This group is called an engine company or company. The officer in charge of a company, like this one, is called the Company Officer. The Battalion Chief for the area which included Station 57 was Battalion Chief Dan Griffin, who was therefore Hanes' supervisor.
14. The District Activities Schedule (DAS) is a shared electronic document used by District managers and other personnel. The document lists scheduled activities that will require a company3 to move from its home station. The entry for each activity shows the name of the activity, the location, and which units will attend. All Company Officers are required to review the District Activities Schedule during their shift. Oversight for the DAS is provided by a Battalion Chief.
15. The District has other means besides DAS to determine the location of its fire companies at a particular time. Company Officers call the Battalion Chief and report their location; the District can track the location of its vehicles by GIS (a GPS-type system); a District dispatcher can locate vehicles through its Automatic Vehicle Location system; and District employees can call the Company Officer's cell phone. Upon receiving an emergency call, dispatchers use preprogrammed alarm assignments and the tracked location of vehicles to choose companies to respond.
16. Battalion Chiefs are responsible for coordinating all resources within the District, and therefore must be aware of the location of the fire equipment and personnel in their assigned geographical area. Company Officers are required to keep their Battalion Chief generally advised of the location and status of their company.
17. In March 2020, the District, in conjunction with the Association, created a Peer Support Team to help employees of the District cope with the death of a highly esteemed coworker. District Lieutenant Jeff Campbell was in charge of coordinating these Peer Support Team meetings.
18. On March 5, a Peer Support Team meeting was held from 1:00 p.m. to 3:00 p.m. at District Fire Station 59 in West Linn. The DAS for March 5 stated that Hanes' Station 57 company would be at Station 59 from 1:00 p.m. to 3:00 p.m. to attend the Peer Support meeting.
19. The company normally stationed at Station 59 was headed by Company Officer Robin Peters. The DAS for March 5 stated that Peters' company would be stationed there as usual, but attending the Peer Support meeting.
20. Hanes was aware that his company was scheduled to be at Station 59 for the Peer Support meeting. Hanes and his three Company members decided not to attend the March 5 meeting and remain at Station 57.
21. On March 5, Hanes spoke by telephone with the Peer Support Team's coordinator, Lieutenant Campbell, and Lieutenant Todd Raeburn, the lieutenant on duty at Station 59, to inform them that Hanes and his crew would not be attending the meeting. Hanes did not, however, call his own supervisor, Battalion Chief Griffin. Hanes later acknowledged to Griffin, during the investigation, that he did not make the call, and that he should have, and apologized for not doing so.
22. Under the Collective...
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