Oregon School Employees Ass'n v. Lake County School Dist.

• Jurisdiction: Oregon
• Citation: Oregon School Employees Ass'n v. Lake County School Dist., 763 P.2d 160, 93 Or.App. 481 (Or. App. 1988)
• Docket Number: C-202-83
• Parties: , 49 Ed. Law Rep. 1300 OREGON SCHOOL EMPLOYEES ASSOCIATION, Respondent, v. LAKE COUNTY SCHOOL DISTRICT, Petitioner. ; CA A45200.
• Court: Oregon Court of Appeals
• Decision Date: 19 October 1988

Page 160

763 P.2d 160

93 Or.App. 481, 49 Ed. Law Rep. 1300

OREGON SCHOOL EMPLOYEES ASSOCIATION, Respondent, v. LAKE COUNTY SCHOOL DISTRICT, Petitioner.

C-202-83; CA A45200.

Court of Appeals of Oregon.

Argued and Submitted April 20, 1988.

Decided Oct. 19, 1988.

Nancy Hungerford, Sunriver, argued the cause for petitioner. On the brief was Bruce Bischof, Sunriver.

Paul B. Meadowbrook, Salem, argued the cause and filed the brief for respondent.

Before RICHARDSON, P.J., and NEWMAN and DEITS, JJ.

NEWMAN, Judge.

Petitioner (District) seeks review of an Employment Relations Board order which, pursuant to our decision in OSEA v. Lake County School District, 81 Or.App. 623, 726 P.2d 955 (1986), determined the "appropriate remedy" for an unfair labor practice of District involving two employes whom it had discharged. We had held that the undisclosed "personal notes" of district's school principal, which documented the job performance and attitude of the employes, were "personnel records" within the meaning of the parties' collective bargaining agreement and that District had violated Article III ¹ of that agreement and ORS 243.672(1)(g) ² by maintaining the undisclosed records. We remanded to ERB for determination of the "appropriate remedy."

On remand, Oregon School Employees Association (OSEA) urged that reinstatement and back pay were appropriate remedies. It argued that District's failure to disclose the notes deprived the employes of notice and warning of the principal's dissatisfaction with their performance and, therefore, of opportunities to seek assistance, request transfers, change their behavior or take other job-saving actions before their discharge. In response, District argued that, because the collective bargaining agreement with OSEA did not contain a "just cause" clause, the employes could have been discharged for any reason and had no "right" to their jobs and that reinstatement would give them more rights than they originally possessed under the contract. District also argued that, because the notes were not "used" against the employes, reinstatement and back pay would be a disproportionate and, therefore, an inappropriate remedy.

ERB ordered District to offer reinstatement and back pay to the employes, to cease and desist from maintaining the principal's personnel records and all related disciplinary records concerning the two employes and to expunge them from its files. ³ It stated:

"The question before us is not whether these employes could have been terminated without warning or cause, nor whether the termination decision itself was free from the taint of reliance on the unlawfully maintained personnel records. Rather, the question is whether the violation of the personnel records article of the contract deprived Merrill and Steward of a benefit or advantage which could have materially affected their prospects for continued employment with the District.

" * * *

"If the possibility existed, no matter how remote, that Merrill and Steward could have successfully acted to save their jobs, then the remedy for denying them that opportunity must be reinstatement."

It found:

"[I]t is clear that the terminations were 'for cause' and that the cause was directly related to the undisclosed personnel records. It is equally clear, although the evidence is sparse, that Merrill and Steward were not otherwise given the notice and warning that would have been provided had the records been presented to them as required by the contract.

"Because they had no access to or knowledge of the critical personnel records, Merrill and Steward were denied Association assistance and representation, denied the opportunity to grieve the personnel record entries and attach written rebuttals, and, most importantly, denied the chance to stop behaving in a manner that was obviously viewed by Crawford as improper."

It concluded:

"[T]he District's violation of the personnel records provision of the parties' collective bargaining agreement (the purpose of which is to require timely disclosure of, and an opportunity to inspect and respond to, the type of critical documents present here) denied Merrill and Steward a substantial contract right. Exercise of that right could have had a significant effect on both their conduct and the District's decision to terminate them. Under the circumstances, the appropriate remedy is reinstatement, because it is this remedy that will give the Association and the employes 'the benefit of their bargain.' "

District assigns as error that ERB ordered it to offer reinstatement and back pay to the employes. ⁴ It argues that ERB made an error of law when it construed its statutory authorization to "take such affirmative action * * * as necessary to effectuate the purposes of [the Public Employes' Collective Bargaining Act (PECBA) ]," ORS 243.676(2)(c), to give it discretion to fashion a remedy that gives the Association and employes "the benefit of their bargain." District asserts that that standard is used in grievance arbitration and is not applicable here, because the statute does not give ERB the same broad range of discretion to fashion a remedy as is commonly given to arbitrators under collective bargaining agreements. Rather, District argues, ERB's authority is limited to giving the parties what it describes as the "benefit of state law." Further, it argues that we should not defer to ERB's judgment or affirm its order, because the remedy it imposes is not "necessary"--that is, not absolutely required--to give the parties that benefit.

District's argument is not convincing. A primary purpose of PECBA is to encourage the making of and adherence to collective bargaining agreements. See ORS 243.656. ORS 243.672(1)(g) makes it an unfair labor practice to "violate the provisions of any written contract with respect to employment relations * * *." ORS 243.676(2)(c) gives ERB broad authority to fashion a remedy for an unfair labor practice. See Gresham Tchrs. v Gresham Gr. Sch., 52 Or.App. 881, 892, 630 P.2d 1304 (1981). District's failure to disclose the personnel records to the employes was a violation of the collective bargaining agreement and, therefore, was an unfair labor practice. Although our review of ERB's remedy is not identical to our review of an arbitrator's award, if the collective bargaining agreement, as here, does not provide for a grievance procedure ending in binding arbitration, ERB is authorized to find the facts and construe the agreement just as an arbitrator would be. OSEA v. Pendleton School Dist. 16R, 85 Or.App. 309, 311, 736 P.2d 204 (1987).

We can set ERB's remedy aside only if it has exercised its authority in a manner that does not reasonably effectuate the purposes of PECBA. ERB did not err when it determined that reinstatement is necessary to carry out and enforce the collective bargaining agreement and to give the parties the "benefit of their bargain" and thereby "to effectuate the purposes" of PECBA.

District contends, however, that ERB's remedy gives the employes more than they bargained for, because the collective bargaining agreement did not contain a "just cause" provision and th...