Portland Pub. Sch. v. United Ass'n, Plumbers & Pipefitters Local 290, Case No. UP-002-19

• Decision Date: 19 February 2021
• Docket Number: Case No. UP-002-19
• Parties: PORTLAND PUBLIC SCHOOLS, Complainant, v. UNITED ASSOCIATION, PLUMBERS AND PIPEFITTERS LOCAL 290, Respondent.
• Court: Oregon Employee Relations Board

PORTLAND PUBLIC SCHOOLS, Complainant, v. UNITED ASSOCIATION, PLUMBERS AND PIPEFITTERS LOCAL 290, Respondent.

Case No. UP-002-19

EMPLOYMENT RELATIONS BOARD OF THE STATE OF OREGON

February 19, 2021

RULINGS, FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER

Daniel L. Rowan, CDR Labor Law, Portland, Oregon represented Complainant.

Daniel Hutzenbiler, McKanna Bishop & Joffe, Portland, Oregon represented Respondent.

On February 19, 2021, Administrative Law Judge B. Carlton Grew issued a recommended order in this matter. The parties had 14 days from the date of service of the order to file objections. OAR 115-010-0090(1). No objections were filed, which means that the Board adopts the attached recommended order as the final order in the matter. OAR 115-010-0090(4).¹

ORDER

1. The Union shall cease and desist from violating ORS 243.672(2)(a).

2. The Union shall post a notice regarding its violation of ORS 243.672(2)(a) for 30 days in prominent places where the Union is permitted to post Union material.

3. The Union shall rescind the discipline of M and reimburse M for penalties paid.

4. We dismiss the remainder of the Complaint.

DATED: March 24, 2021.

/s/_________

Adam L. Rhynard, Chair

/s/_________

Lisa M. Umscheid, Member

/s/_________

Jennifer Sung, Member

This Order may be appealed pursuant to ORS 183.482.

(UNFAIR LABOR PRACTICE)

RECOMMENDED RULINGS, FINDINGS OF FACT, CONCLUSIONS OF LAW, AND PROPOSED ORDER

This case was submitted on stipulated facts before Administrative Law Judge (ALJ) B. Carlton Grew on October 23, 2020.

Daniel L. Rowan, CDR Labor Law, Portland, Oregon represented Complainant Portland Public Schools.

Daniel Hutzenbiler, McKanna Bishop & Joffe, Portland, Oregon represented Respondent United Association, Plumbers and Pipefitters Local 290.

On January 17, 2019, Complainant Portland Public Schools (PPS or District) filed this Complaint against United Association, Plumbers and Pipefitters Local 290 (Union). On October 23, 2020, the parties submitted their post-hearing briefs, and the record closed on that date.

The issues presented for hearing are:

1. Did the Union's conduct related to the internal disciplinary proceedings against M² and O violate ORS 243.672(2)(a)?

2. Did the Union violate ORS 243.672(2)(b) when it conducted internal disciplinary proceedings against N?

3. Did the Union violate ORS 243.672(2)(d) when it conducted internal disciplinary proceedings against N?

This Board concludes that the Union violated ORS 243.672(2)(a), but not (b) or (d).

RULINGS

1. The ALJ correctly ruled that Joint Exhibits 38, 39, and 40, and Stipulation of Fact Nos. 42, 43, and 44 would not be received into evidence insofar as the exhibits and statements purport to be admissions by the Union regarding the strength of its legal position on the merits. ORS 40.190(1) specifically provides that evidence of settlement offers or conduct or statements made in compromise negotiations "is not admissible to prove liability for or invalidity of the claim or its amount." Exhibit 38 is the District's Settlement Proposal of March 13, 2020; Exhibit 39 is the District's Revised Settlement Proposal of June 23, 2020, and Exhibit 40 is the Union's approval of Settlement Agreement on June 25, 2020, attempts to resolve the issues raised by the Complaint. Therefore, Exhibits 38, 39, and 40 are inadmissible as evidence to prove that the Union violated the law. See Gresham Police Officers Association v. City of Gresham, Case No. UP-06/18-09 at 2-3, 24 PECBR 55, 56-7 (2010); Michael Barkley and AFSCME, Local 2451 v. City of Klamath Falls, Case No. UP-43-09, 24 PECBR 457, 458-59 (2011).

2. The ALJ's remaining rulings have been reviewed and are correct.

FINDINGS OF FACT³

The Parties

1. The District is a public employer as defined in ORS 243.650(20).

2. The Union is a labor organization as defined in ORS 243.650(13).

3. The Union is one of several affiliated trade unions representing PPS employees. These unions bargain together with the District as the District Council of Unions (DCU).

4. The District and the Union are parties to a collective bargaining agreement that expired December 31, 2019. Article 18 of that agreement addresses safety:

"1. The District shall maintain safe working conditions in accordance with established federal and state regulations. The District and employees covered under this Agreement should work to avoid or minimize hazards.

"2. The parties agree to comply with Oregon OSHA regulations.

"B. PHYSICAL EXAMINATIONS

"1. In the interest of safety and the wellbeing of students, employees and the public, the District and the DCU and its affiliated unions agree to the objective of a substance free workplace." (Exh. J-1, p 17.)

5. The Union represents certain District employees employed in the District Maintenance Department, including M, O, F, and C.

6. PPS employee N is a Senior Program Manager in the Maintenance Department. N is excluded from the bargaining unit as a statutory supervisor. N has been a Union member since 1994.

7. The Union and its members are subject to the Constitution of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada (Constitution). The Constitution includes provisions governing the conduct of Union members. It also contains a process that permits union members or local unions to bring charges against a union member who allegedly violates the Constitution. The internal Union disciplinary process involves a trial before the Local Union Executive Board. Following the trial, the Local Union Executive Board issues a finding. If the union member is found guilty, the Executive Board may assess a fine, suspend, or expel the Union member. The decision of the Executive Board is subject to appeal to the International Union's General Executive Board. The Union also maintains its own Constitution and By-laws.

8. On January 9, 2018⁴, the District received a report that PPS employee F operated a PPS vehicle in an unsafe manner in the District's Benson High School parking lot.

9. M and O are F's coworkers in the Maintenance Department. They are also part of the bargaining unit represented by the Union. C is not in the Union bargaining unit.

10. The District investigated the incident and interviewed District employees M, O, and C as part of that investigation. Each of the three employees provided a written statement regarding the incident. Union Business Agent Dennis Mask interviewed C about the incident and prepared a written summary of that interview.

11. On March 26, the District sent F a letter titled, "Subject: Loudermill Notice of Proposed One Day Unpaid Suspension." The letter stated that the District was considering discipline based on three incidents, one which included the driving incident at Benson High School on January 9. (Exh. J-7.)

12. On May 9, the District issued F a written warning and one-day suspension based on the conduct described in the March 26 letter.

13. On May 14, F sent an email to Union Business Manager Lou Christian and Union Business Agent Dennis Mask, indicating a desire to file internal union disciplinary charges against District employees M and O.

14. On May 29, F filed charges with the Union against M and O for violating Constitutional provisions Sections 153 (the Pledge) and 197 (Discrimination against Members) by allegedly making false statements to the District..

15. On June 5, F filed charges against PPS Supervisor N for violating Constitutional provisions Sections 153 and 197.)

16. Section 153 of the Union Constitution provides:

"Each applicant before becoming a member shall take the following pledge or oath of obligation:

"I, (state name), in the presence of this Local Union, do truly promise and pledge my word of honor that I am familiar with the provisions and requirements of the Constitution and By-Laws of the United Association and that I will not perform any act in any way prejudicial to the best interest of the United Association, but will at all times endeavor to promote its prosperity and usefulness. I hereby agree to remain loyal and true to the principles and policies and to be governed by the Constitution and By-Laws and Ritual of United Association and the Local Union in any and all matters now or that may hereafter be included therein. I further pledge that I will faithfully attend all meetings of the Local Union unless prevented by sickness or other causes beyond my control. I will at all times assist members of the United Association to the extent of my ability, defend them when unjustly treated or slandered, and cultivate for each and every member the warmest friendship and brotherly love. I will assist unfortunate or distressed members to procure employment.

"I do further promise and swear that I am not a member of any organization advocating the overthrow by force and violence of the Government of the United States or of Canada.

"I take this obligation voluntarily, without any mental reservation, and bind myself until death under the penalty of scorn due to moral perjury and violated honor as one unworthy of trust or assistance." (Exh. J-2 at 100-1, emphasis deleted.)

17. Section 197 of the Constitution provides in part:

"The United Association recognizes that every member is entitled to just treatment and as a matter of policy, the United Association embraces and supports the anti-discrimination laws of the United States and Canada." (Exh. J-2 at 121.)

18. On June 15, the Union held a meeting and voted to accept the charges filed against M and O. The charges were referred to the Local Executive Board and a trial was scheduled for July 11. M and O were sent notices of the trial and were ordered to attend.

19. On July 2, attorney Stephen H. Buckley provided a legal opinion to the Union President and Vice President stating that the Union could lawfully process the charge F filed against N.

20. On July 11, the Local Executive Board held a trial of M and O based on the charges filed by F.

21. The results...