Title: State of
Oregon, Mental Health & Developmental Disability Services Division, Central
Mental Health and Oregon Public
Employees Union, Local 503, SEIU
IN ARBITRATION PROCEEDINGS
PURSUANT TO AGREEMENT BETWEEN THE PARTIES
OPINION AND AWARD
This Arbitration arises pursuant to Agreement between Oregon Public
Employees Union, Local 503, SEIU ("Union"), and State of Oregon
("State" or "Employer"), Mental Health and Developmental
Disability Services Division, ("MHDDSD" or "Division"),
Central Mental Health ("CMH"), under which LUELLA E. NELSON was
selected to serve as Arbitrator and under which her Award shall be final and
binding upon the parties.
Hearing was held on February 1 and 2, 1994, in Salem, Oregon. The parties had the opportunity to examine and cross-examine
witnesses, introduce relevant exhibits, and argue the issues in dispute.
The parties also filed post-hearing stipulated testimony and exhibits.
Both parties filed post-hearing briefs on or about March 2, 1994.
On behalf of the Union:
Lynn-Marie Crider, Esquire, 4828 SE Hawthorne Boulevard, Portland, OR
On behalf of the State:
John S. Irvin, Esquire, Assistant Attorney General, Department of
Justice, 100 Justice Building, Salem, OR
The parties were unable to agree on a stipulated issue. They stipulated that the Arbitrator would formulate the issue
or issues to be decided after a review of the parties' statements of the issue
and the record in this case. The
Union would formulate the issue as follows:
Did the Employer violate Articles 81 and 82 of the collective bargaining
agreement when it reclassified the Grievants downward?
If so, what is the remedy?
The State would formulate the issue as follows:
Was the downward reclassification of the Grievants arbitrary in violation
of Article 82 of the collective bargaining agreement? If yes, what is the appropriate remedy?
The parties stipulated that, if any violation is
found, the appropriate remedy would be to set aside the reclassification
decision, return the affected employees to the position of Program Technician 2
("PT-2"), and make them whole for any losses from the
reclassification. The parties
further stipulated that a "red-circle" provision probably prevented
any pay loss for the affected employees.
Having reviewed the record and the parties' statements of the issue, the
Arbitrator formulates the issue as follows:
Was the downward reclassification of the Grievants arbitrary, and thus in violation of Articles 81 and 82 of the collective bargaining agreement? If so, what is the appropriate remedy?
RELEVANT SECTIONS OF AGREEMENT
ARTICLE 81 - RECLASSIFICATION UPWARD
Section 1. Reclassification upward is a change in classification of a
position by raising it to a higher classification. Reclassification must be based on a finding that the duties
and responsibilities of a position have been significantly enlarged, diminished
or altered, but the knowledge, skills and abilities required are still
essentially similar to those previously required.
ARTICLE 82 - RECLASSIFICATION DOWNWARD
Section 1. Reclassification downward is a change in the classification
of a position by reducing it to a lower classification.
Section 3. Within thirty (30) days from the date the employee receives written notice that his/her position will be reclassified downward, he/she may grieve this action by filing a grievance at the Agency Head level in the grievance procedure. The Agency Head shall respond in writing in accordance with the appropriate time limits contained in the Agency grievance procedure. A decision of the Agency to deny a reclassification grievance under this Article may be submitted by the Union to final and binding arbitration ... The arbitrator shall allow the decision of the Agency to stand unless he/she finds that the decision of the Agency was arbitrary.
This case involves the downward reclassification of 21 employees in CMH,
effective September 1, 1993. Before
their reclassification, all were classified as Program Technician 2
("PT-2"), at Salary Level 27. The
State reclassified them to positions at Salary Ranges 24 to 26. The parties
stipulated to the following regarding 17 of the 21 grievants:
Since April 1, 1990, there has been no significant diminishing of duties
or responsibilities of the positions occupied by the following persons and
there has been no significant alteration of the positions that would lower the
level of the duties or responsibilities of the positions.
The State adopts and maintains the classification system for all State
employees. Since 1979, agencies
have been responsible for allocating positions to particular classifications.
Unions cannot challenge the overall classification system, but can
bargain about the pay levels for each classification and the procedures for
allocating positions to classifications. Since
1981, unions have been able to seek review of allocation decisions only
through arbitration. After 1981,
the State ceased meeting and conferring with the Union regarding the personnel
rules governing classification. Instead,
the parties incorporated the personnel rule setting forth the classification
standards in their 1981 Agreement. That
language was identical to the current contract language.
In the mid-1980's, the State performed an exhaustive review of its
classifications. One outgrowth of
this review was a joint reallocation process during 1989 and 1990.
The State and Union agreed to reclassify all unit employees, effective
April 1, 1990. In that process, the
State encouraged its agencies to "institute procedures to ensure the
timely availability of current and accurate position descriptions."
CMH updated most of its position descriptions ("PD's") at the
A joint labor-management committee considered employee appeals from the
new classifications. In
considering appeals, the joint committee's standard was whether the
classification proposed by the Union "better describes the duties,
purpose and distinguishing characteristics of the job ...."
No evidence exists that any of the positions involved in this case went
through the appeal process.
CMH RECLASSIFICATION DECISION
In 1991, CMH submitted a request to establish two limited duration PT-2
positions. The State's Personnel
Division expressed concern over the large number of PT-2's at CMH, and declined
to approve the request. After
further discussions, CMH agreed to review the allocation of all 48 PT-2
positions in CMH in exchange for approval of the two requested positions.
The Personnel Division provided seven alternative classifications to
CMH formed a committee of managers to review PT-2 allocations.
Managers looked at PD's, updated some, and compared them with PT-2 and
other class specifications. After
further correspondence between CMH and the Personnel Division, CMH
reclassified 24 positions downward.
Dan Barker, Manager of Adult Services, served on the committee.
He testified the Division had been told to reduce the number of PT-2's.
He re-wrote some PD's in September 1992 to tailor them to lower class
specifications. To do so, he may
have removed some duties from the PD's. However,
he expected only minimal changes in day-to-day operations as a result of the new
PD's. He testified that some
re-written PD's reflected what he expected employees to be doing in September
1993, not what they were doing at the time he drafted them.
He testified that many of the PD's were inaccurate within a few weeks.
For example, downsizing in September 1992 required staff members to act
more autonomously. He testified
that virtually everyone in his office is doing more work, and more responsible
work, than in September 1992.
The class specification for the PT-2 position lists the following class
description, duties, and responsibilities:
The [PT-2] provides functional direction and overall monitoring of an
agency program; researches and evaluates program regulations and operations;
makes oral and written recommendations to executive staff for informed decision
making; represents the agency to various public, private, and legislative
groups; and actively participates in the development of program administrative
rules and operating policies.
DUTIES AND RESPONSIBILITIES
Program Monitoring. Typical
tasks: conducts thorough research studies covering governing program
regulations, legislative and executive intent, operating policies and end
results, evaluates findings and prepares comprehensive reports and
recommendations for executive staff; presents recommendations orally and in
writing; drafts or reviews drafts of language for administrative rules, monitors
pertinent bills during the legislative session, drafts program related
legislative concepts for internal review, reviews court decisions, and helps
draft agency orders or policy changes as necessary to comply with court ruling.
2. Program Coordination. Typical tasks: provides functional program direction through coordination of employees engaged in program activities; identifies long-range objectives, short-term operational goals, and develops operating plans based on in-depth knowledge of program regulations and requirements; ensures statutory program compliance; develops program budgetary data; interprets governing rules and regulations, operating policies, and procedures to operating departments, and various public, private, and legislative groups; conducts staff meetings and presides over agency taskforces and standing committees.
3. Agency Representation. Typical tasks: represents agency before legislative, fact finding, and/or fund granting bodies to explain, interpret and justify agency program or policies; represents the agency on interagency committees, to individuals and public groups, and to the media. Designs, develops, and presents (or coordinates the presentation of) statewide, regional, and/or publically [sic] directed program training.
4. Miscellaneous. Typical tasks: may lead a team of technicians conducting a statewide review of program operations for compliance with regulations and adherence to standards. Identifies operational strengths and weaknesses, problems or ares of noncompliance, and recommends corrective action; meets with line management and staff to determine needed corrective action and develop plan; follows-up to monitor operational corrective plans; compiles and writes summary reports; may review and analyze findings of field reviews.
The class specification for the Project Coordinator lists the following
class description, duties, and responsibilities:
The PROJECT COORDINATOR coordinates the planning and administration of a
group of related discrete projects at different stages of completion on an
ongoing basis in support of an agency objective or mission.
DUTIES AND RESPONSIBILITIES
Reviews project assignment to determine scope and diversity of
involvement, training and resources needed, necessary contacts and required
procedural administrative actions, reviews existing methods and procedures, and
modifies as necessary to accomplish assignment; identifies potential
difficulties and determines means of lessening or avoiding them.
Contacts appropriate participants such as various internal units, other
State agencies, other public jurisdictions, private businesses and
organizations, special interest groups, local communities, and the public; seeks
cooperation and input in project assignment, coordinates needed meetings or
hearings to gather input, and meet procedural requirements.
Identifies resources and administrative steps needed for project
completion; develops project plan in consultation with appropriate participants;
initiates project and coordinates steps to ensure participation of appropriate
interested individuals and groups.
Represents agency in meetings, administrative hearings, etc. in dealing
with affected and interested individuals and groups concerning the project;
moderates divergent viewpoints and helps build consensus among those involved
appropriate to the project assignment, processes, and procedures.
Monitors project status to ensure progress toward completion, required
procedural steps are completed fully and timely, interested groups and
individuals are informed of progress, and project output is appropriate;
modifies project plan and coordinates changes with participants as necessary in
response to unforeseen [sic] changes or unexpected developments; upon project
completion, closes files and reviews records to ensure documentation is
appropriate and complete.
The class specification for the PR-2 lists the following class
description, duties, and responsibilities:
The [PR-2] represents multiple, diverse agency programs or programs
having both substantial service and control requirements to users such as
private or quasi-public businesses, other governmental units, public
organizations, or individuals.
DUTIES AND RESPONSIBILITIES
Program Representation. Typical
tasks: meets with or uses telephone to advise officials and the
public on program applicability and requirements; interprets and explains
applicable laws, rules, regulations, policies, and procedures to current and
potential program participants; advises and assists potential participants on
requesting program services and/or setting up or implementing programs; may
write policy and procedure guides for use by program participants.
Service Request Review. Typical
tasks: reviews application for program services; ensures requester
has supplied complete and accurate information; evaluates request for service
against program requirements; approves/denies requests; explains decision to
requester with suggestions, if appropriate, on meeting program requirements.
Program Monitoring. Typical
tasks: instructs individuals and groups on proper methods and
procedures for compliance with program regulations; monitors reports and/or
other documents from program participants; ensures that they are timely and
complete; contacts participants as needed to obtain compliance with program
Operations Review. Typical
tasks: individually or as a member of a team, conducts on-site
review of program operations for compliance with and adherence to standards;
identifies operational strengths and weaknesses, problems, or areas of
noncompliance, and identifies needed corrective action; follows up to monitor
branch/program operational corrective plan; compiles and writes summary reports;
may periodically lead team of analysts.
The class specification for the Budget Analyst lists the following duties
The BUDGET ANALYST prepares the agency's biennial budget, participates in
securing legislative approval of the budget, and insures proper management of
the budget, working closely with administrative and management staff and with
accounting and fiscal technical staff. The
budget analyst performs a number of highly technical functions including budget
development, budget execution, advanced fiscal analysis, revenue and expenditure
projections, and budget status analysis on an agency-wide or individual program
DUTIES AND RESPONSIBILITIES
Budget Development. Typical
tasks: consults with senior management on agency goals, long-range
and short range program and financial objectives; develops information on
funding projections, expenditure forecasts, staffing levels and program
modifications; translates decisions and data into required budget format; works
with representatives of other agencies to resolve budget issues; utilizes
computer-based systems to develop position levels and costs; assists senior
agency management in preparing and presenting information to Executive
Department director, the Governor's office, and the legislature.
Budget Execution. Typical
tasks: develops revenue forecasts using a variety of sources
including program managers, Federal and State fund sources, and historical data;
incorporates forecasts into budget; monitors expenditures against revenues;
monitors program and financial performance against plans; computes and carries
out budget reallocation based on expenditure patterns and forecasts; advises
senior management on budget adjustments and potential over-expenditures;
prepares monthly allotment plan and monthly financial analysis; prepares
Emergency Board requests after consultation with senior management; counsels
program managers on budget issues and budget status.
Budget Analysis. Typical
Tasks: carries out special studies of budget status and agency
fiscal position; analyzes and interprets Federal and State law and regulations
relating to fiscal and budget issues; performs specific program budget analysis
upon request; evaluates budget performance by individual program managers;
provides information for accounting and statistical reports at Federal and State
EMPLOYEE POSITION DESCRIPTIONS AND DUTIES
Vickie Skryha (Project Coordinator)
CMH initially proposed to reclassify Skryha to PR-2. Based on the PD submitted at the time, the Personnel Division
recommended a PR-1 (Salary Range 22). CMH
revised her PD and successfully proposed to reclassify her to Project
Skryha manages housing programs for the mentally ill.
By all accounts, her PD does not accurately describe her duties.
According to Barker, the PD underplays the degree of responsibility,
technical knowledge and expertise required.
Barker attributed that failing to his own lack of understanding of her
position. He has held off
re-writing her PD pending this arbitration.
Skryha protested a draft of her PD and provided additional information
before Barker submitted the PD, but he did not incorporate her materials.
In her view, the PD omits the major focus of her work-- administrative
responsibilities, management of the housing program, and budgetary responsibilities.
Brett Asmann (PR-2)
The Personnel Division accepted CMH's proposal to reclassify Asmann to
PR-2. Barker testified that
Asmann's current duties are more akin to his former PT-2 duties than to the PR-2
duties in his PD, but those functions were not going on in September 1992.
Asmann is an expert on crisis services and civil commitment. Since 1986, he has assisted in advising the legislature on
statutory changes in this area. He
has also worked on administrative rule changes, trained others in the civil
commitment system, and conducted studies of the civil commitment system.
His studies sometimes result in recommended rule or statutory changes.
His legislative role increased in the fall of 1992, when his supervisor
left. He then headed work groups
working on redrafting the civil commitment statute and rules. He testified that, since the fall of 1992, he has spent
75-80% of his time working either with legislative personnel or with the work
groups. He testified he performs
most of the duties and responsibilities listed in the PT-2 class specification.
Asmann's PD does not specifically mention his liaison work with the
legislature. It allocates only 10%
of his time to work groups, task forces, and state and national level
committees. It contemplates
that he will spend 65% of his time developing, implementing, coordinating,
monitoring, and evaluating community mental health services for adults.
Lorraine Burgio (Budget Analyst)
CMH proposed to reclassify Burgio as a Budget Analyst. The Personnel Division disagreed with this allocation, and
suggested classification as a Fiscal Coordinator 1 (Salary Range 23).
CMH revised her PD and re-submitted it with the same recommendation.
The Personnel Division accepted the recommendation in light of the
Jack Morgan, Deputy Assistant Administrator for Developmental Disability
Services, testified the PD for Burgio accurately lists the duties performed.
However, the percentage of time spent on each fluctuates.
Burgio's PD contemplates, inter alia, that she will spend 85% of
her time on budget execution and preparation.
On cross examination, Morgan testified Burgio's time on budget matters
has never approached 85%. According
to Morgan, before September 1993, those duties occupied one-third of her time.
He believes her budget duties have increased since September 1993.
Burgio estimates she spends 20% of her time on budget execution and
preparation. The remainder of her
time involves budget implementation (25%), providing technical assistance within
the Office of Developmental Disability Services, and managing the contract unit
staff. Unlike Grants/ Contract
Coordinators, she does not do "production" work (i.e., "number
crunching" or the actual preparation of contracts).
Instead, she attends many meetings where policy is discussed, and brings
back policy information so her staff can use it to produce contracts.
She performs the kinds of duties described in her PD. However,
in her view, her PD fails to reflect additional duties.
Her managerial and coordinating duties increased when Measure 5 induced
cutbacks in managerial staff.
Burgio testified that staff in comparable positions elsewhere in the
agency remain PT-2's. She includes
among those Alan Sternberg, who performs similar functions for mental health and
alcohol and drug programs.
Karen Curry, John Howe, Mary Lowry, Nancy Trekker (PR-2)
Four Behavior Management Specialists work at the Fairview Training
Center. CMH initially recommended
reclassification of all four as Budget Analysts.
The Personnel Division disagreed, and suggested PR-1 as the appropriate
classification. CMH then revised
their PD's and successfully recommended reclassification to PR-2.
The parties stipulated Howe would testify the Specialists' duties have
not changed since April 1990, although the method of authorizing additional
funding for Specialists' clients has changed.
Specialists used to recommend funding changes to their supervisor, Julie
Beaton. A "Regional
Coordinator" now reviews the Specialists' funding recommendations,
and a committee makes the final decision.
If the committee approves funding, the Regional Coordinator now fills out
the paperwork authorizing the change--work previously performed by the
Specialists. This work takes five
minutes per client, and involves between one and four clients per Specialist per
month. The parties further
stipulated that Beaton views this change as a reduction in their authority.
POSITION OF THE UNION
Under the clear language of the Agreement, any downward reclassification
"must be based on a finding that the duties and responsibilities of
a position have been significantly ... diminished ...." [emphasis added] Any
downward reclassification in the absence of such a finding is impermissible,
regardless of whether the decision to place an employee in a particular
classification is otherwise arbitrary. Also,
any reclassification downward in the absence of such a finding is necessarily
arbitrary. The selection of new
classifications was also arbitrary.
These reclassifications occurred only because the Personnel Division
believed CMH had too many PT-2's and refused to approve new PT-2 positions.
CMH stipulated there was no significant diminishment in the duties and
responsibilities of 17 positions, and the Arbitrator should make the same
finding regarding the remaining four positions.
The change in paperwork tasks for the Specialists is insignificant.
Since the Specialists never had the authority to approve the allocation
of funds, the change in the persons to whom they recommend approval is not a
The Agreement has been consistently interpreted to preclude
reclassifications absent changes in duties.
This is consistent with the clear language of the Agreement. The State has consistently relied on this language to
justify refusals to upward reclassify arguably misclassified positions.
The Union has not challenged that interpretation of the Agreement, and
arbitrators have adopted it. The
State is in no position to contend at this late date that the language is
Oregon Employee Relations Board ("ERB") decisions interpreting
the personnel rule are not controlling. An
agency rule and the provisions of a collective bargaining agreement must be
interpreted differently. Where an
agency has adopted a rule pursuant to legislative delegation of authority, the
agency's interpretation of the rule is entitled to deference.
A collective bargaining agreement is a contract, and must be interpreted
consistent with the manifest understanding of both parties.
In 1978 and 1981, the ERB essentially gutted the personnel rule that
became the language of Article 81. It
declined to read the personnel rule literally, because to do so would limit the
Personnel Division's statutory authority. It
refused to apply the rule to preclude correction of classification errors.
When the State agreed to incorporate the personnel rule in the Agreement,
it gave up part of its statutory authority to allocate positions.
The Arbitrator should not read the reclassification language as if
it were not intended to limit the employer's authority to change a
Moreover, the parties have not read the Agreement as ERB did the
personnel rule. The parties have
consistently given the language meaning, primarily to prevent upward
reclassifications in the absence of change.
Even if the language was ambiguous, the parties' custom and practice clarifies
The limitation on reclassification applies equally to upward and downward
reclassification. The language
itself speaks to both enlargement and diminishment of responsibility.
The policy reasons for limiting reclassifications are strong whether
the reclassification is upward or downward.
Allocation is a time-consuming process, and challenges through the
grievance procedure are expensive. To
limit the time and expense devoted to these issues, the parties reasonably
decided to limit the opportunity to reclassify or seek reclassification.
The 1990 classification overhaul demonstrates the institutional reasons
for the contractual limitations on reclassification.
The State had a one-time chance to examine each position and classify
it correctly, without regard to changes in duties. The Union had a one-time chance to challenge classification
decisions without having to meet the high burden of showing the classification
was arbitrary. The parties
created a unique and inexpensive dispute resolution process for this review.
When the 1990 process was complete, the old rules and procedures came
into play again. The concern for
stability again became more important than the concern for accuracy in
The limitation on reclassification also serves the interest of fairness. Employees know their duties, classifications, and compensation. They also know their compensation will not be reduced unless their duties and responsibilities change or the Union agrees to a wage reduction. If employees were barred from upward classification without taking on additional duties, but were not protected from downward reclassification where their duties remained unchanged, they could not rely on the incomes to which they agreed in accepting positions.
Even if the Agreement does not forbid downward reclassifications absent
diminution of duties, the decisions to reclassify Burgio, Asmann, and Skryha
were arbitrary. The decisions were
based on erroneous understandings of those Grievants' duties and
responsibilities. If a PD does not
describe an employee's actual job duties, a classification decision based on the
PD is arbitrary. Also, if the basic
duties and responsibilities differ substantially from those outlined in the
class specification, the decision is arbitrary.
The PD's were not kept up to date, and were rewritten without input from
the incumbents. As a result, those
for Burgio, Asmann, and Skryha do not come close to describing what they have
done since the new PD's took effect. Therefore,
the allocation decisions were based on inaccurate factual premises and were
CMH incorrectly assumed that Skryha coordinated the actual production of
housing by working with architects, contractors, and the like. She actually manages the housing program, not individual
housing projects. Her position is
better described by the PT-2 classification.
Her reclassification was based on a fundamental misunderstanding of what
she does, and was arbitrary.
Asmann spends little time performing the functions in his PD. His actual
duties are almost perfectly described by the PT-2 class specification.
CMH's assumption that he lacked responsibility for developing
program rules and procedures was without factual basis, and therefore arbitrary.
The rationale for retaining Sternberg as a PT-2 applies equally to Burgio.
CMH failed to explain why Burgio should be classified differently from
Sternberg. This allocation decision
is therefore irrational. The
breadth of Burgio's responsibility might justify her classification as a Fiscal
Analyst 2 (Salary Range 27) rather than PT-2.
Since Burgio deals at a policy level with budgeting, grants, and their
interaction, consideration should be given to that classification.
Her classification should be based on what she is doing, not on fantasy.
These reclassification decisions were driven by the Personnel Division's
belief that CMH had too many PT-2's. Whether
or not the Personnel Division intended it, this resulted in supervisors'
believing that PD's should be rewritten to justify placing employees in
different classifications. PD's
were tailored to specifications, not to actual job duties.
The effort to satisfy the Personnel Division distorted the process of
properly classifying Grievants.
Allocation should match duties, authorities, and responsibilities to the
closest class specification. Nothing
suggests that a certain percentage of positions in an agency should be PT-2's.
Each position is to be evaluated on its own merits.
An agency such as CMH, which creates and manages programs that are
carried out by other governmental entities and private contractors, will have
more PT-2's than an agency that carries out its programs in a series of field
CMH erred in allowing pressure from the Personnel Division to distort its
allocation decisions. In the
cases of Burgio, Asmann, and Skryha, the pressure produced arbitrary
classification decisions. Grievants
should be returned to their PT-2 classifications and be made whole for any
losses they have suffered as a result of the reclassifications.
POSITION OF EMPLOYER
The Union must prove that the downward reclassifications violated the
Agreement. The applicable test is
whether the decisions were "arbitrary." An arbitrary action is one having no rational factual basis.
The Arbitrator has no authority to determine the allocation of positions
to classes. Such issues as
"core elements" and "51% rule" have no proper role in
determining whether the State's decision was arbitrary.
A portion of an employee's responsibilities performed only 15-20% of the
time might be sufficiently crucial to justify allocation to a higher class.
The PD's and class specifications for the 21 positions at issue show
rational bases for the allocations. It
is irrelevant whether the Arbitrator or the Union might have a different opinion
as to the correct allocation.
The class specifications for each of the positions include typical duties
consistent with those shown in the PD's for grievants reclassified to those
positions. There is a rational
basis for Skryha's allocation to Project Coordinator. There may need to be recognition of a higher level of program
responsibility than Skryha's PD portrays. Asmann
may have functions more typical of PT-2 than PR-2.
His PD may fail to depict the actual nature of his duties and
responsibilities. Except for Asmann,
the evidence does not show significant inaccuracies in the PD's for
employees allocated to PR-2. Except
for Skryha and Asmann, the PD's do not have significant inaccuracies.
Except for Skryha and Asmann, the PD's validly show a rational basis for
It is irrelevant whether employees were involved in updating their PD's.
Accurate PD's are the State's responsibility, not the employee's.
PD's do not describe what the employees agree to perform; they describe
what the State requires them to perform. Managers
are responsible to know what they want employees to perform and to describe it
in writing in the PD. In any event,
only Asmann showed any lack of opportunity for input.
The issue is not thoroughness of the process or the extent of employee
involvement. The issue is whether
the allocations were arbitrary.
The issue of change of duties or responsibilities since April 1990 is not
a permissible issue. Even if it is
an issue or a relevant fact, lack of change of duties or responsibilities cannot
bar the State's correction of incorrect position allocations.
No change has occurred in 17 of the positions that could give a basis for
considering a downward reclassification.
Any change or decrease in the remaining four positions is admittedly very
minor. The State does not rely on
such a change as any part of the reason for the downward reclassification.
The State has the authority to make downward reclassifications,
regardless of change, to correct misallocations.
In other arbitration cases, agencies have argued the lack of significant
change in duties or responsibilities to defend against employee requests for
upward reclassification. Some
arbitrators have incorrectly stated such a change is a condition precedent to an
upward reclassification. Lack of
such a change could not bar upward reclassification.
The proper issue is whether the class selected by the State has a
rational factual basis. If it does
not, the classification is improper, regardless of change or lack of change of
duties and responsibilities. The
Arbitrator should not refuse to consider the State's arguments in this case
solely because State agencies in prior cases have made contrary arguments in
upward reclassification cases.
Article 82 does not permit the Union or an employee to attack a downward reclassification on the ground there has been no significant change in duties or responsibilities. The language appears only in Article 81, but the use of the word "diminished" reveals an intent that the requirement apply to downward reclassifications as well as upward reclassifications.
The Arbitrator cannot overturn the denial of a downward reclassification
grievance "unless he/she finds that the decision of the Agency was
"decision" to be reviewed for arbitrariness is unclear.
It is immaterial whether the "decision" is the denial of the
grievance protesting the downward reclassification, or the downward
reclassification decision itself. The
language was intended to protect the State's right to use its best judgment in
classifying positions and to prevent second-guessing of classification decisions
by arbitrators. It appears the
parties intended that arbitrariness of the denial of the grievance was to be
determined by the arbitrariness or lack of arbitrariness of the classification
action being protested.
Failure to base a reclassification on a finding of change of duties or
responsibilities would probably be considered by the Union to be a violation of
the "finding" requirement of Article 81.
However, the Article 82 procedure does not allow downward
reclassifications to be set aside for violation of some provision of the
contract; it only allows them to be set aside if they are arbitrary.
Violation of the contract does not make a decision arbitrary.
Article 82 does not allow downward reclassification decisions to be
overturned simply because those decisions violate the contract.
The general grievance provisions do not allow a challenge to a violation
of Article 82 that is not arbitrary. Article
82 sets up a specific and exclusive procedure for grieving and arbitrating
downward reclassifications. If the
parties had intended to permit the use of the general grievance procedure, they
could have stated in the contract that downward reclassifications could also be
grieved and arbitrated under Article 21. In
that event, the special time limits and procedures in Article 82 would be
superfluous. However, even if
violations of Articles 81 or 82 could be litigated in this case, the history of
the "finding" language in Article 81 shows that it is not to be used
to bar correction of incorrect allocations.
The ERB has held that the "finding" language that the parties
incorporated in Article 81 cannot be used to limit the Personnel Division's
authority to allocate positions to the appropriate class.
ERB has also held that it is not arbitrary for the Personnel Division to
change its mind about the proper allocation of a position, so long as the result
is rational. ERB observed that such
a rule would prevent reclassification, no matter how erroneous the initial
allocation may have been. It read
the rule to prohibit de facto "promotion" or
"demotion" where the position was properly allocated.
ERB's administrative interpretation of the Personnel Division rules is
part of the interpretive baggage of the language the parties incorporated in
Article 81. The parties intended
the language to have the same meaning it had in the Personnel Division rule, as
construed by the ERB. The State
continues to have the responsibility to allocate positions to the proper
classes. Absent evidence, no rule
or contract provision should impinge on that responsibility.
The downward reclassifications here are corrections of prior
misclassifications. This correction
should not be barred.
It was not improper for the State to "tailor" the PD's to class
specifications. Barker was attempting
to structure the duties and responsibilities of positions as he wanted them to
be in the future, when the reorganization was completed.
It was not improper for him to look at class specifications for
various classes, to see how positions might be classified, while he was
determining the duties and authorities. Moreover, he did not write all the PD's here; most of the
employees involved are outside his managerial jurisdiction.
The evidence does not disclose what PD's he was talking about when he
said he "tailored" the PD's. He
did tailor Skryha's PD to help get her a classification higher than PR-1.
Other than her position and possibly Asmann's, no evidence exists that he
used class specifications to "tailor" other PD's. If the Union questions PD's, it must show what PD's were
incorrect. The Union cannot stretch
Barker's statement into invalidity of all PD's.
The Agreement does not allow the Arbitrator to second-guess
classification decisions. Unless
positions are essentially identical, it is not proper to look at other
positions to determine whether a position was correctly classified.
The issue is not why other positions are classified as they are; the
issue is whether there is a proper basis for allocation of the position at
issue. Absent proof of favoritism
as the basis for classification, it is immaterial whether some other position is
classified higher. The positions
retained as PT-2's differ from those reclassified. There is no basis for saying those distinctions were not
sufficient to support the higher classification of those PT-2's.
The timing of the reclassifications, after the close of the 1990 joint
allocation process, does not make them arbitrary.
By the terms of the 1990 process, future issues concerning work out of
class and reclassification were to be handled under other provisions of the
1989-91 Agreement. No evidence
exists that any of the 21 grievants here would have appealed their 1990
allocation if the allocation had been to their current class rather than PT-2.
If they would not have appealed in 1990, the expiration of the special
appeal process is irrelevant. One
cannot conclude that they would have appealed in 1990, simply because they are
now appealing. They had been PT-2's
for two years, and saw fellow employees remaining at the PT-2 level.
No evidence exists of bad faith on the State's part in questioning the allocations that had been made in 1990. In 1990, the Division had no guidance beyond the class specifications in allocating positions. After being told to review the allocations, the Division used classification guidance that was not available in 1990. Had there been rational bases for allocation of all 48 positions as PT-2's, the Division could have decided to retain all 48 as PT-2's. The decision that PT-2 was not the appropriate class for many positions was rationally based.
The 1990 allocations, right or wrong, were made in good faith.
No evidence exists that the Personnel Division questioned the allocation
in 1991 only because the 1990 special appeal process had expired, or that it
otherwise acted in bad faith. Only
after review of these positions in 1992 did the Division conclude that some 1990
allocations were incorrect.
Mistaken allocations in 1990 did not constitute arbitrary action.
The correction of those allocations could not be arbitrary simply
because of the expiration of the special appeal process.
The special appeal process was a temporary benefit, and the parties
agreed that benefit would not last forever.
There was finality in appeal time limits, appeal board decisions, and
time limits for removing duties. No
evidence exists that expiration of the process was intended to prevent
correction of misclassification of positions.
The special appeal process focused on three areas--employees' rights to
appeal allocations, the appeal board's right to select the best fitting class
from two classes, and the agency's right to elect to remove duties where the
appeal board selected the employee's proposed class.
There is no basis for construing this specifically-focused appeal process
as a bar to agency correction of incorrect allocations.
Nothing in the process suggests that the allocations could never be
questioned. Such a bar would
impinge on the State's obligation to classify positions according to their
duties, authority and responsibilities. Authority
to disregard that obligation should be based only on clear contractual language
so requiring. The expiration of the
1990 special appeal process did not make the 1993 reclassifications
irrational or lacking a reasonable factual basis.
The positions of Asmann and Skryha should probably be reconsidered
because they appear to perform different duties and higher level
responsibilities than their PD's indicate.
The record shows a rational factual basis for Burgio's allocation. The remaining 18 allocations were not really challenged on
the ground of lack of rational basis.
The key issue here is whether downward reclassifications in 1993 can be
accomplished despite lack of diminution in duties or responsibilities of the
positions. It is unfortunate that
neither State representatives in prior arbitration cases nor most of the
arbitrators in those cases have researched ERB cases interpreting the language
incorporated in Article 81. ERB
decisions do not bind this Arbitrator, but they do state logical, persuasive
legal precedent. ERB's
interpretation should not be rejected out of hand, simply because a literal
reading of the language appears to make a finding of change a condition
precedent to reclassification. The
only evidence of intent of the parties in incorporating this language
indicates the parties intended to incorporate ERB case precedent.
The wording of Article 82 suggests the permissible scope of arbitration
of downward reclassifications is very narrow.
Downward reclassifications must be upheld if they have a rational factual
basis. With the possible exception
of Skryha and Asmann, the allocations here must be upheld.
The Union bears the burden of proof in this contract interpretation case.
Under Article 82, the State's decision must stand unless it was
has been equated to "lacking a rational factual basis," or "taken
without cause, unsupported by substantial evidence, or nonrational."
The concept of "arbitrariness" in reclassifications has meaning
only with reference to the standards of Article 81.
If the State did not consider facts relevant to the contractual standard,
or if it did not apply the criteria in that standard to the facts, its decision,
of necessity, was arbitrary.
If the State considered relevant facts and applied the proper criteria,
the Arbitrator has no authority to second-guess the resulting classification
In considering whether the State acted arbitrarily in making a particular
reclassification, one must look at more than just whether the final step of the
decision was arbitrary. Each step
in the process--including the gathering of information on which the
reclassification is based--must withstand scrutiny. The assessment of duties and responsibilities can only be
based on facts. Where no reason
exists to believe that the employee either is performing, or soon will perform,
the duties as described, it is arbitrary to allocate the employee's position
based on that description.
The standards for interpreting a collective bargaining agreement are well
settled. Where the language is
clear and unambiguous, the Arbitrator must give effect to the intent expressed
in that language. That is so even
where one party finds the result unusual, unexpected, or harsh.
Evidence of past practice and bargaining history cannot alter the plain
meaning of the language. However,
bargaining history and past practice can shed light on ambiguous language,
demonstrate a latent ambiguity in the language, or establish that the parties
have agreed to a modification of the contract.
Evidence of past practice is persuasive as to these matters only where
the practice is of long standing, well understood, and mutually concurred in by
Disputed language does not stand alone, but must be read and interpreted
as part of the contract as a whole. The
fact that disputed language is subject to more than one interpretation does not
necessarily mean it is ambiguous. Language
may be deemed clear even though the parties disagree concerning its meaning.
Where the language is susceptible to divergent interpretations, the
preferred interpretation gives effect to all contractual provisions and avoids
harsh or absurd results or a forfeiture.
Strictly speaking, there is no stare decisis in arbitration.
However, past arbitral decisions interpreting contract language should
not lightly be disregarded. Where arbitrators have consistently adopted a particular
interpretation and the contractual language has remained unchanged, the parties'
evident intent is to order their relationship in reliance upon that interpretation.
In that situation, deference to prior interpretations furthers the
important interests of stability and predictability.
Arbitral interpretations of provisions in this State-wide contract,
adopted for other agencies, apply with equal force to this agency.
The standard for reclassification in Article 81 is clear and unambiguous.
It unequivocally requires a "significant" change in duties and
responsibilities. Prior arbitration
awards have so interpreted the language through several generations of the
In questioning the meaning of this language, the State relies on ERB decisions
involving the personnel rule that the parties incorporated in their Agreement as
Article 81. In a 1978 decision, the
ERB considered an instance in which the State concluded an unrepresented
employee had been misclassified at the outset. The employee's duties and responsibilities had not changed,
but the State changed his classification.
The ERB found this action was not a "reclassification"
within the meaning of the personnel rule. It
therefore found statutory authority for the State to allocate the employee to
the appropriate class. In a 1981
case, the ERB found a "narrow reading" of the personnel rule ran
counter to ORS 240.215's requirement that the State allocate positions.
It read the personnel rule to prohibit only de facto promotion or
demotion when the position had been properly allocated.
The ERB decisions explicitly rested on statutory concerns.
The parties did not incorporate ORS 240.215 in their Agreement, nor is
there evidence of an intent to apply the rationale of the ERB decisions to
reclassifications under Articles 81 and 82.
Indeed, if that rationale applied, the State would have an obligation to
correct misclassifications regardless of whether the employee was classified
at too low or too high a level. Yet,
in cases submitted for arbitration after those ERB decisions, the State argued
that initial misclassification did not justify reclassification of positions
covered by the Agreement absent a later "substantial" change.
The Union acquiesced in that interpretation, and arbitrators
adopted it. In light of the
consistent strict interpretation of Article 81, the statutory considerations
that caused the ERB to limit the reach of the earlier personnel rule simply do
not apply in this contract interpretation case.
The State certainly has a strong interest in correcting
misclassifications, whenever they occur. The
Agreement counter-balances that interest against predictability, stability,
and fairness. To do so, it limits
the bases for reclassification and imposes a high burden of proof in challenging
reclassification decisions. If
either party now believes the balance should change, the means to that end is
The Arbitrator must apply the clear language of the Agreement.
By the parties' stipulation, the reclassification of 17 of the Grievants
does not meet the test of Article 81. The
remaining four Specialists have had only two changes in their work--the identity
of (1) the persons to whom they recommend funding, and (2) the person who
performs the ministerial task of filling out the papers when the funding is approved.
By any test, the stipulated change in reporting and paperwork obligations
was a minor evolution in duties. The
clear language shows an intent not to permit such small changes to justify
reclassification. In both common
usage and legal parlance, "significant" equates to important, weighty,
or meaningful. No basis existed for
concluding that the Specialists' duties had significantly changed.
Indeed, the State disavows any reliance on this change as a basis for
A further concern exists for some positions, independent of the issue of
substantial change. Burgio's PD
inaccurately apportions her time, and those for Skryha and Asmann admittedly
underestimate their responsibilities. PD's
prepared by Barker purportedly removed duties to tailor positions to
lower-rated classifications, but Barker made no actual change in their
duties. The intent of the
reclassification language could not be subverted by simply proclaiming a desire
to reduce duties. Assuming it was
proper in September 1992 to take a purely predictive "snapshot" of
future duties, the State could not rely on that "snapshot" when it
took no steps to implement it. That
is particularly so where simultaneous downsizing was making positions more, not
It is unnecessary and inappropriate for the Arbitrator to decide if the
PT-2 or other classifications best suit the Grievants' duties and
responsibilities. In a large
organization with multiple classifications, it may be "rational"
to allocate any given position to any of several classifications.
Examination of the class specifications here shows great similarities
in duties, but differences in emphasis. Indeed,
simply by re-writing the PD's for unchanged positions, CMH was able to achieve
changes not just in grade, but in the series to which particular positions were
On this record, it cannot be determined what phrasing best describes
Grievants' duties and responsibilities. It
is sufficient there has been no significant change in them since the 1990
allocation decision. Under the
clear language of the Agreement, the employees could not be reclassified
under Articles 81 and 82 unless their duties and responsibilities changed
In view of the above, it is concluded that the reclassifications were
arbitrary. As agreed by the
parties, Grievants must be returned to their former classification of PT-2 and
made whole for any losses occasioned by their reclassification.
The downward reclassification of the Grievants was arbitrary, and thus in
violation of Articles 81 and 82 of the collective bargaining agreement.
2. As a remedy, Grievants shall be returned to their former classification of Program Technician 2 and made whole for any losses occasioned by their reclassifications.
DATED: April 1, 1994
/s/ Luella E. Nelson
LUELLA E. NELSON - Arbitrator
Although the reclassification decision was made during the term of the
1991-93 Agreement, it became effective during the term of the 1993-95
Agreement. The reclassification
language is identical in the two documents.
It is therefore unnecessary to determine which Agreement to apply.
For ease of reference, Appendix A lists the affected employees by name,
new title, and new Salary Range. An
asterisk (*) next to the name indicates that the employee is included in the
above stipulation. Where an
employee was identified as working under a supervisor who testified at the
hearing, the name of the supervisor is shown.
The Union has withdrawn the grievance as to three downgraded PT-2
positions, pending further review of those positions by the State.
Put another way, it might be "rational" to demote employees
for any number of reasons other than a change in duties.
In lean times, mass demotions could reduce the budget.
However, that would not be a "rational" basis for reclassification
under Articles 81 and 82. Reclassification
reflects a change in the appropriate classification.
A reclassification that violates the standards of Article 81 is
necessarily "arbitrary" for purposes of Article 82. An alternative interpretation would render meaningless
the criteria for reclassification.
The 1990 reclassification process demonstrates the parties' ability to
negotiate a procedure to allow reclassification even absent substantial change
in duties and responsibilities. Here,
too, the State could have proposed mutually-agreed reclassifications, even
absent a significant change in duties. However,
this case involves unilateral reclassifications.
EMPLOYEE RECLASSIFICATION SUMMARY
* By stipulation of the parties, "Since April 1, 1990, there has been no significant diminishing of duties or responsibilities of the positions ... and there has been no significant alteration of the positions that would lower the level of the duties or responsibilities of the positions."