Oregon School Employees Ass'n, Chapter 89 v. Rainier School Dist. No. 13

• Decision Date: 21 March 1991
• Docket Number: UP-85-85
• Citation: 808 P.2d 83,311 Or. 188
• Court: Oregon Supreme Court
• Parties: , 66 Ed. Law Rep. 1270 OREGON SCHOOL EMPLOYEES ASSOCIATION, CHAPTER 89, Respondent on review, v. RAINIER SCHOOL DISTRICT NO. 13, Petitioner on review. ERB/CA A50794/SC S37070.

Page 83

808 P.2d 83

311 Or. 188, 66 Ed. Law Rep. 1270

OREGON SCHOOL EMPLOYEES ASSOCIATION, CHAPTER 89, Respondent on review, v. RAINIER SCHOOL DISTRICT NO. 13, Petitioner on review.

ERB UP-85-85/CA A50794/SC S37070.

Supreme Court of Oregon.

Argued and Submitted July 9, 1990.

Decided March 21, 1991.

[311 Or. 189-A] David H. Wilson, Jr., of Bullard, Korshoj, Smith & Jernstedt, Portland, argued the cause and filed the petition for petitioner on review.

J. Michael Alexander, of Burt, Swanson, Lathen, Alexander & McCann, Salem, argued the cause and filed a response to the petition for respondent on review.

Before PETERSON, C.J., and CARSON, GILLETTE, VAN HOOMISSEN, FADELEY, and UNIS, JJ.

PETERSON, Chief Justice.

This case involves the discharge of a school district employee, Melvin Gamble, by Rainier School District No. 13 (Rainier). Gamble's union, Oregon School Employees Association, Chapter 89 (OSEA), contested Gamble's discharge, claiming that in discharging Gamble, Rainier did not follow a procedural requirement of a collective bargaining agreement between Rainier and OSEA that "[a]ll infractions must be made in writing, dated, and a copy placed in the employe's personnel file."

The case comes to us on judicial review of an order of the Employment Relations Board (ERB). ERB found that Gamble was discharged with "just cause" as required by the terms of the collective bargaining agreement between Rainier and OSEA. ERB also found that the procedural requirements of the above-quoted clause had been met. On judicial review, the Court of Appeals reversed and remanded, stating that the contract clause quoted above requires that "a written notice is required after each act of misconduct that the district might rely on in disciplining an employee" and that ERB's ruling "is not supported by substantial evidence nor is it a correct interpretation of the agreement." OSEA v. Rainier School Dist. No. 13, 100 Or.App. 513, 518-19, 786 P.2d 1311 (1990). We granted review to consider the rule of law applicable to ERB in its interpretation of collective bargaining agreements, and whether the Court of Appeals erred in holding that ERB's findings were not supported by substantial evidence.

Article VII, section D of the Rainier-OSEA collective bargaining agreement provides:

"No employee covered by this agreement shall be disciplined without just cause. Employees being disciplined shall be afforded due process as outlined in Administrative Rule 329e adopted July 19, 1983."

Administrative Rule 329e provides:

"Employe Infractions.

"The following procedure shall be applicable to all employes of District No. 13 who are hired by the Board.

"It is the obligation of the supervisor to observe and document infractions pertaining to the employe's performance in accordance with his/her job description.

"Procedure

"1. All infractions must be made in writing, dated, and a copy placed in the employe's personnel file. The employe shall receive the original copy, and shall be thereby notified of the matter.

"2. The notification must specifically list the items that are wrong with his/her performance.

"3. Also, the notification should state what measures are being considered if performance does not improve.

"4. The employe must be given an opportunity to a hearing and to refute the charges in writing, including his/her opinion(s) which shall also be placed in the employe's personnel file." (Emphasis deleted; footnote omitted.)

ERB determined that the phrase "all infractions must be made in writing" was ambiguous. It concluded that the parties intended that phrase to mean that notice of violations be made in writing, that Rainier's notices to Gamble complied with Administrative Rule 329e, and that the discharge was proper under the collective bargaining agreement.

An understanding of the facts is necessary to decide this case. We therefore summarize in part and quote in part ERB's pertinent findings of fact concerning the reasons for Gamble's discharge.

Gamble was employed as a custodian by Rainier. Jack Scott, Rainier's Facilities Director, was Gamble's supervisor. During the two years before his dismissal, Gamble received a number of written warnings regarding his continued tardiness, including a 1983 and a 1984 evaluation on which "Needs to Improve" appears in the column titled "Begins day and appointed tasks on time."

"By letter dated July 12, 1984, he was informed of the tardiness problem, was given a change in hours for reporting and leaving work, and was warned of the possible installation of a time clock for his use only. This letter constituted a written reprimand and was placed in his personnel file."

"By letter dated November 16, 1984, he was again warned about his habitual tardiness and was told the time clock would be installed. This letter also constituted a written reprimand and was placed in his personnel file."

"By letter dated January 16, 1985, Scott reprimanded Gamble for absence without authorization two days that week. Scott stated [in the letter]:

" ' * * * This alone is grounds for dismissal, to say nothing of your continued habitual tardiness.

" * * * * *

" 'Any further deviations of this procedure will carry the most gravest [sic] of consequences.' "

On June 5, Scott again discussed with Gamble the problem of Gamble's habitual tardiness. Then, on June 6,

"Scott arrived at work * * * at approximately 6:00 a.m. He turned on the main power switch, checked the pump switches and observed that the pump was not working and that no water was entering the tank. Scott * * * contacted the fire department to determine if it was possible to have water delivered to the school. At approximately 7:00 a.m. the fire chief notified Scott they could send a tank truck with water * * *. Starting at 7:00 a.m., pursuant to Scott's instructions, Gamble was paged every five minutes."

Gamble was scheduled to begin work at 7:00 a.m. He arrived sometime between 7:20 and 7:30 a.m. "He turned on the switch he had turned off the night before, starting the pump. This took only a few minutes. Gamble then left to take his son to school." He did not return to work until 8 a.m.

Gamble met with Scott and Brunquist, Rainier's superintendent, at 2 p.m. on June 7. Brunquist told Gamble that Brunquist "had no choice but to dismiss him effective at the end of his earned vacation. By letter dated June 10, 1985, Brunquist notified Gamble that he was dismissed effective July 2, 1985." The letter stated in part:

"You are being dismissed for the following reasons:

"I have found clear evidence that you have been duly warned in writing on November 16, 1984 and January 16, 1985 that your tardiness will not be tolerated. You have also been tardy as shown on the attached time card records that we discussed last Friday.

"The fact that you make up the time does not excuse your tardiness. Tardiness to work is not acceptable."

On June 17, 1985, OSEA filed a grievance with Rainier on Gamble's behalf. On June 26, 1985, the Rainier Board of Directors conducted a hearing on Gamble's dismissal, heard witnesses, and voted to affirm Brunquist's decision to terminate Gamble. Gamble was notified of the Directors' decision by letter dated June 27, 1985.

The decision in this case turns on whether Rainier, in dismissing Gamble, followed the disciplinary procedures contained in the Rainier-OSEA collective bargaining agreement. That issue came to a head, not at ERB's first hearing, but on OSEA's first appeal to the Court of Appeals. At the first hearing, ERB concluded that Rainier complied with the procedural requirements of the collective bargaining agreement. OSEA sought judicial review asserting that the dismissal of Gamble did not comply with those requirements. The Court of Appeals remanded the case to ERB to "decide whether Rule 329e is applicable here and, if so, how it applies and whether its requirements or their functional equivalent were followed." OSEA v. Rainier School Dist. 13, 91 Or.App. 42, 46, 754 P.2d 9 (1988).

On remand from the Court of Appeals, ERB considered Administrative Rule 329e and upheld the discharge. OSEA again sought judicial review. The Court of Appeals again reversed and again remanded for reconsideration, stating that the contract clause quoted above directs that "a written notice is required after each act of misconduct that the district might rely on in disciplining an employee" and that ERB's ruling "is not supported by substantial evidence nor is it a correct interpretation of the agreement." OSEA v. Rainier School Dist. No. 13, supra, 100 Or.App. at 518-19, 786 P.2d 1311.

ORS 183.482 governs judicial review of an agency order, including an ERB order, in a contested case:

"(8)(a) The court may affirm, reverse or remand the order. If the court finds that the agency has erroneously interpreted a provision of law and that a correct interpretation compels a particular action, it shall:

"(A) Set aside or modify the order; or

"(B) Remand the case to the agency for further action under a correct interpretation of the provision of law.

" * * * * *

"(c) The court shall set aside or remand the order if it finds that the order is not supported by substantial evidence in the record. Substantial evidence exists to support a finding of fact when the record, viewed as a whole, would permit a reasonable person to make that finding."

We hold that ERB applied the correct rule of law in interpreting the collective bargaining agreement, and that there is substantial evidence in the record to support its order. We therefore reverse the decision of the Court of Appeals and affirm ERB's order.

ERB was required (1) to interpret the meaning of the term "all infractions must be made in writing," as used in Administrative Rule 329e, and (2) to decide whether Rainier complied with the collective bargaining agreement in discharging Gamble. Whether ERB correctly interpreted the contract turns on a question of law, what rule of law applies to ERB...