County, and AFSCME Courthouse/Roads Local 2746, and AFSCME Sheriff's
IN ARBITRATION PROCEEDINGS
PURSUANT TO AGREEMENT BETWEEN THE PARTIES
Arbitration arises pursuant to Agreement between AFSCME Courthouse/Roads Local
2746 and AFSCME Sheriff's Local 2746-0 ("Union" or "Local
2746" and "Local 2746-0"), and Clatsop County
("County"), under which LUELLA E. NELSON was selected to serve as
Arbitrator and under which her Award shall be final and binding upon the
was held on May 4, 1995, in Astoria, Oregon.
The parties had the opportunity to examine and cross-examine witnesses,
introduce relevant exhibits, and argue the issues in dispute.
The County filed a pre-hearing brief; the Union filed a post-hearing
brief, and both parties filed responsive briefs.
The matter was fully submitted for decision on May 30, 1995.
behalf of the Union:
Jim Younger, Council Representative, Oregon AFSCME Council No. 75, 2545
SW Spring Garden Street, Suite 201, Portland, OR 97219.
behalf of the County:
Ken Eiler, County Counsel, Clatsop County, P. O. Box 179, 749
Commercial, Astoria, OR 97103.
Courthouse Unit, Represented by Local 2746
Did the County violate Article 1 - Management Rights, Section 2 -
Changes in Working Conditions, Article 18 - General Provisions, Section 2 -
Work Rules, Section 5 - Entire Agreement when the County unilaterally
implemented effective January 1, 1995 a requirement that employees pay the
employee portion of PERS by way of payroll deduction?
yes, what is the appropriate remedy?
Sheriff's Unit, Represented by Local 2746-0
Did the County violate Article 11 - Compensation, Section 11.1(L),
Article 17 - General Provisions, Section 2 - Work Rules when the County
unilaterally implemented effective January 1, 1995 a requirement that
employees pay the employee portion of PERS by way of payroll deduction?
yes, what is the appropriate remedy?
RELEVANT SECTIONS OF AGREEMENTS
(Effective July 1, 1993, through June 30, 1997)
Section 1. Management
Rights: The Union recognizes the
prerogative of the County to operate and manage its affairs in all respects in
accordance with its responsibilities, except as otherwise specifically
limited by the terms of this Agreement. The
County retains all rights, decision-making authority, prerogatives and
functions connected with or in any way incidental to its responsibility to
manage the affairs of the County or any part of it, except as otherwise
specifically limited by the terms of this Agreement. The rights hereunder of the employees in the bargaining unit
and the Union are limited to those specifically set forth in this Agreement.
The County shall have no obligation to bargain with the Union with
respect to any such subjects or the exercise of its discretion and
decision-making with regard thereto. Subjects covered by the terms of this Agreement are closed to
further bargaining for the term hereof. Any
subject which was or might have been raised in the course of collective
bargaining is closed for the term hereof.
Section 2. Changes in
Working Conditions: The exercise
of any management prerogatives, functions, or rights which constitute a
change in a working condition which is not specifically addressed by this
Agreement shall follow notice to the Union and bargaining in accordance with
Section 1. Grievance and
arbitrator's decision shall be final and binding upon both parties, but he
shall have no power to alter in any way the terms of this Agreement or to
impose on either party a limitation or obligation not explicitly provided for
in this Agreement. ...
Section 2. Work Rules:
It is jointly recognized that the County, acting by and through the
County Manager and County department heads, must and does retain broad
authority to fulfill and implement its responsibilities and may do so by
adoption of work rules. It is
agreed that no existing work rule or new work rule will be promulgated or
implemented which is inconsistent with a specific provision of this
Agreement or Oregon law.
rules shall be reduced to writing. New
rules shall be posted within affected departments for a period of ten (10)
consecutive days and shall be furnished to the Union.
In the event that the Union considers a work rule to be inconsistent
with a specific provision of this Agreement or otherwise wishes to discuss the
rule it shall so notify the County within the ten (10) working day posting
period. In such event, the rule shall be discussed between the County
and/or it(s) designees and the Employee Relations Committee.
Work rules, when and if adopted, will not be arbitrary, capricious or
Section 5. Entire
The parties acknowledge that during negotiations which resulted in this
Agreement each had the unlimited rights and opportunity to make demands and
proposals with collective bargaining and that the understandings and
agreements arrived at by the parties after the exercise of that right and
opportunity are set forth in this Agreement.
This Agreement constitutes the sole and entire Agreement between the
parties. Except as specifically
modified by or treated in this Agreement, all policies, matters, questions and
terms affecting unit employees in their employment relationship with the
county shall be governed by the policies of Clatsop County, Oregon. The County and the Union for the life of this Agreement each
voluntarily and without qualification waives the right and agrees that the
other shall not be obligated to bargain collectively with respect to any other
subject or matter referred to or covered by this Agreement, or with respect to
any subject or matter which was or might have been raised in bargaining but
which is not specifically referred to or covered in this Agreement even though
such subject or matter may not have been within the knowledge or contemplation
of either or both parties at the same time that they negotiated or signed this
Consistent with the County's charter mandate to establish a personnel
system, the County will adopt a comprehensive personnel manual governing all
aspects of personnel administration during the life of this Agreement. The County and the Union mutually agree to reopen this
Agreement on any matter which is a mandatory, noneconomic subject of
bargaining which the County finds necessary to include in the personnel manual
and which either party determines is inconsistent with or not covered by
(effective July 1, 1993, through June 30, 1996)
... Unless specifically modified by a provision of this Agreement, the
County's authority and discretion may be exercised to the fullest extent
permitted by law. Nothing in this
Preamble is intended to waive or modify any legal duty arising under the
Public Employee Collective Bargaining Act, or to limit the authority of an
arbitrator or the Employment Relations Board to interpret and apply the
provisions of this contract in accordance with applicable legal standards.
ARTICLE 11 - COMPENSATION
Public Employees Retirement System.
The County will pay the employer contribution to PERS in accordance
with the rules and regulations of the PERS Board.
ARTICLE 15 - SETTLEMENT OF DISPUTES
15.1 - Grievance and Arbitration Procedure.
To promote better Employer-employee relationships, both parties pledge
their immediate cooperation to settle any grievance or complaint that might
arise out of the application, meaning, interpretation, or omission of this
Step 4 - Arbitration.
... The Arbitrator's decision shall be final and binding upon both
parties, but the Arbitrator shall have no power to alter in any way the terms
of this Agreement ....
17 - GENERAL PROVISIONS
17.2 - Work Rules. It is jointly recognized that the County, acting by and through the County manager and Department Heads and the Sheriff, must and does retain broad authority to fulfill and implement its responsibilities and may do so by adoption of oral or written work rules. It is agreed that no existing work rule or new work rule will be promulgated or implemented which is inconsistent with a specific provision of this Agreement, provided that the requirements of Oregon law will be paramount.
All work rules which have been or shall hereafter be reduced to writing shall be posted within affected departments and shall be furnished to the Union. In the event the Union considers a work rule to be inconsistent with a specific provision of this Agreement or otherwise wishes to discuss the rule, it shall so notify the County within three (3) working days after receipt of the proposed rule, in which case the rule shall not take effect. The rule shall be discussed between the County and/or its designee(s) and the Union Grievance Committee. After this meeting the County may notify the Union of the effective date of the rule. The Union shall then have ten (10) working days to invoke the procedures of Section 15.1, Step 4 if the work rule constitutes a mandatory subject of bargaining. Work rules, when and if adopted, will not be arbitrary, capricious, or discriminatory.
PUBLIC EMPLOYEES' RETIREMENT ACT OF 1953 (ORS 237.001 ET SEQ.)
237.071 Contributions of
employes; rate and payment; additional units for police and fire fighters.
(1)(a) Each employee who
is an active member of the system shall contribute to the fund and there shall
be withheld from salary of the employee six percent of that salary.
A police officer or fire fighter who is a member of the system may
elect to make additional contributions to the fund to purchase increased
benefits between the date of retirement and age 65.
The rate of additional contribution shall be determined by the actuary,
dependent upon the age of the police officer or fire fighter at the date of
election, so as to provide monthly payments on the basis of $10 per unit of
benefits purchased. No police
officer or fire fighter may elect to purchase more than eight units.
For each $10 unit purchased by the police officer or fire fighter, the
employer shall purchase an equal $10 unit ...
237.075 Payment of employee
contribution by employer.
Notwithstanding any other provision of ORS 237.001 to 237.315, and
subject to the provisions of this section, a public employer participating
in the system may agree, by a written employment policy or agreement in effect
on or after July 1, 1979, to "pick-up," assume or pay the full
amount of contributions to the fund required of all or less than all active
members of the system employed by the employer.
If a public employer so agrees:
The rate of contribution of each active member of the system employed
by the employer who is covered by such policy or agreement shall uniformly
be six percent of salary regardless of the amount of monthly salary.
The full amount of required employee contributions
"picked-up," assumed or paid by the employer on behalf of its
employees shall be considered "salary" within the meaning of ORS
237.003(11), only for the purpose of computing a member's "final average
salary" within the meaning of ORS 237.003(15), and shall not constitute
additional "salary" or "other advantages" within the
meaning of ORS 237.003(11) for any other purpose.
The full amount of required employee contributions
"picked-up," assumed or paid by the employer on behalf of its
employees shall be added to the individual account balances of the employees
for their annuities and shall be considered employee contributions for all
other purposes of ORS 237.001 to 237.315.
OREGON ADMINISTRATIVE RULES
CHAPTER 459, DIVISION 10 - PUBLIC EMPLOYEES RETIREMENT SYSTEM
Employer "Pick-Up" of Employee Contributions
459-10-208 On and after July 1, 1979,
participating employers may, in lieu of employee contributions required by
ORS 237.071, voluntarily agree to "pick-up", assume or pay the
uniform six percent contributions as provided by enrolled House Bill 5077,
Section 3(1), 1979 Regular Session, on behalf of such employer's participating
member employees, on the following terms and conditions:
The employer's agreement to "pick-up", assume or pay its
employees' contributions must be evidenced by a written employment policy
or agreement, which may be a collective bargaining agreement.
OREGON CONSTITUTION, ARTICLE IX, SECTION 10
any existing State or Federal laws, an employee of the State of Oregon or any
political subdivision of the state who is a member of a retirement system or
plan established by law, charter or ordinance, or who will receive a
retirement benefit from a system or plan offered by the state or a political
subdivision of the state, must contribute to the system or plan an amount
equal to six percent of their [sic] salary or gross wage.
(2) On and after January 1,
1995, the state and political subdivisions of the state shall not thereafter
contract or otherwise agree to make any payment or contribution to a
retirement system or plan that would have the effect of relieving an employee,
regardless of when that employee was employed, of the obligation imposed by
subsection (1) of this section.
On and after January 1, 1995, the state and political subdivisions of
the state shall not thereafter contract or otherwise agree to increase any
salary, benefit or other compensation payable to an employee for the purpose
of offsetting or compensating an employee for the obligation imposed by
subsection (1) of this section.
These grievances arise out of the passage of Ballot Measure 8 in the November 1994 elections. Measure 8 added provisions to Article IX of the Oregon Constitution, including Section 10, quoted above. The Union filed grievances on behalf of employees in two bargaining units. Both grievances protest the County's decision to discontinue "picking up" the employees' contribution to the Public Employee Retirement System ("PERS"). Until January 1, 1995, the County paid the PERS pick-up in both units, as well as for unrepresented employees.
July 5, 1994, anticipating the vote on Measure 8, Union Council Representative
Jim Younger wrote to County Manager William B. Barrons.
Younger requested a reopener of both contracts to add 6% to the salary
schedules prior to January 1. No
evidence exists of any response from the County at that time.
In September, Younger sent Barrons a 20-year PERS side agreement signed
by another public employer. He
pointed out that other public employers were taking one of two courses to deal
with the predicted passage of Measure 8:
(1) increasing salary schedules by 6% to offset the payroll
deduction, or (2) signing long-term agreements to maintain the pick-up.
Later that month, Younger offered to withdraw two pending grievances if
the County would sign a 20-year side agreement to continue picking up the 6%
PERS contribution and crediting unused sick leave to retirement benefits.
The County Board of Commissioners declined to consider this request
until after the November election.
December 19, Barrons informed Younger of the County's intentions regarding
PERS. His letter noted that (1)
the County would not reopen the contract to offset the impact of Measure 8;
(2) the County would begin withholding the employee share of PERS
contributions on any compensation earned after December 31; and (3) the County
would establish a record of employee sick leave on the books as of December
31, for use if the courts later determined that it could be applied to
January 4, 1995, Barrons sent a memo to unit employees and unrepresented
employees. The memo said (1) the
County would deduct the PERS contribution from paychecks issued after January
5 for any income earned in 1995; (2) the County would set aside in a reserve
the amount of the pick-up it had been paying to PERS; and (3) the money would
be available if a court decided that employers had incorrectly begun
deducting the PERS contribution. The
Union filed these grievances on January 6.
UNIT BARGAINING HISTORY
1985-90 contract for the Sheriff's Unit included language stating "P.E.R.S.
will be paid in accordance with statutory provisions."
That language was deleted from the successor Agreement.
In those negotiations, the County proposed the language that now
appears as Section 11.1(L) of the Sheriff's Agreement.
Younger testified he corrected his copy of the County's proposal to
substitute the word "employees" for "employer."
He did not discuss it with the County because the parties got wrapped
up in the treatment of one employee, Corrections Counselor Cora Lane.
To accommodate Lane, the Union proposed to expand the County's language
to read as follows:
County will pay the employees contribution to PERS in accordance with the
rules and regulations of the PERS Board.
parties went to interest arbitration. Before
the Interest Arbitrator, the County quoted the Union's proposed language (including
the word "employees") and noted "Second sentence is
unacceptable." It argued the
proposal was contrary to Oregon law in that Lane did not meet the statutory
requirements for such a classification. The
Union quoted its proposed language, and alleged that the County proposal included
the language other than the last sentence.
The Union noted, "Above section is new, old language was in
recognition clause." It
argued the proposal was legal and consistent with a promise made to Lane at
the time of her hire. The
Interest Arbitrator found he was without authority to order classification
contrary to statute. He therefore
concluded that "The proposed article shall not be included."
County's then-attorney, C. Akin Blitz, agreed to have his staff type the final
contract. All drafts included the
language of Section 11.1(L) as proposed by the County.
Younger testified he did not notice the continuing use of
"employer" rather than "employees," which he characterized
as a typographical error. Section
11.1(L) was not in dispute in negotiations for a successor Agreement.
The Union did not raise the alleged typographical error in those
negotiations, and the language remained unchanged.
testified the parties intended to require the County to bargain whenever it
made a change in personnel policies, and that it has done so on all issues
except PERS. In the two units,
the parties have discussed such matters as safety, job descriptions for
existing and new positions, changes in recruitment methods, changes in
"flex" time procedures, changes in the method for accruing vacation
time, compensation to canine officers for the cost of dog food and
training, procedures for merging former State of Oregon building inspectors
into the bargaining unit, complaint resolution procedures under the federal
Americans with Disabilities Act, and implementation of the federal Family
Medical Leave Act.
OF THE UNION
current and past Agreements require the County to pay the PERS pick-up.
The Union has been unable to find a written policy authorizing the
County to pay the pick-up. However,
the County has made those payments. Something
has to have caused those payments to begin.
addition, the parties have treated the PERS pick-up as a mandatory subject of
bargaining. They have treated the
pick-up as if it were in the Agreements.
The arguments in the interest arbitration make it clear the County's
obligation to pay the employee contribution was not an issue.
The only issue was whether to treat Lane as a police or fire officer
for purposes of PERS benefits. The
Interest Arbitrator recommended exclusion of the entire PERS provision, even
though only one sentence was disputed. Blitz
included the undisputed portion of the provision in the typed drafts, but made
a typographical error. The County
has the burden of explaining why Blitz put this language in the Agreement.
The County inexplicably has refused to contact Blitz for
clarification of this matter. The
parties intended to have Section 11.1(L) refer to the employee contribution,
to comply with the statutory requirements.
Union had no obligation to request negotiations over Barrons' December 19
letter. That letter was not open
for negotiations; it was a statement of what the County was going to do.
The County violated the Agreements by failing to notify the Union of
its intent to change a bargaining issue and failing to allow the Union to
negotiate the issue. The remedy
should include making employees whole for the term of the Agreements or until
such time as the County has met its legal obligation to negotiate.
8 did not give the County the unilateral right to implement PERS deductions
without negotiating. The parties treated the two Agreements as meeting the
requirements of ORS 237.075. The
Employment Relations Board ("ERB") has concluded that the PERS
pick-up is still a mandatory subject of bargaining. The parties have a strong history of bargaining over changes,
both economic and non-economic. The
County is therefore bound to negotiate with the Union prior to making such
case does not fall under the ERB ruling permitting employers to unilaterally
begin deducting 6% PERS contributions from employees' paychecks during a
period when the status quo must be maintained.
Unlike the case before the ERB, this case does not involve a status
quo issue. The Agreements are
in full force and effect.
The Attorney General's opinion regarding Measure 8 supports a finding that the County violated the Agreement. That opinion specifically notes that employers may not modify the terms and conditions of collective bargaining agreements unilaterally. Such a collective bargaining agreement need not state in literal terms that the County must pay the PERS pick-up to meet the test of bilateral contract status. The County's consistent practice has been not to change any conditions of employment--economic or non-economic--without giving the Union the opportunity to negotiate the issue. Thus, the parties have created bilateral contracts that require the County to pay the PERS pick-up for the terms of the Agreements.
Arbitrator should order the County to make all employees whole for PERS
deductions made effective January 1, 1995.
The Arbitrator should order the County to pay the PERS pick-up as it
had before January 1, 1995, until such time as the current Agreements expire
or until the parties negotiate a different provision.
If Measure 8 prevents the parties from negotiating, the Arbitrator
should order the County to make employees whole and pay the PERS pick-up for
the term of the Agreement.
Agreement contains any provision obligating the County to pay a PERS pick-up.
Payment of a PERS pick-up is a "salary" issue, not a
"work rule" or "working condition."
Before filing this grievance, the Union did not treat it as a
"work rule" or "working condition."
Even if it is characterized as a "work rule" or "working
condition," the Agreements merely require "discussion," which
has occurred, and/or "negotiation," which is prohibited by Article
IX, Section 10 of the Oregon Constitution.
Finally, the County has no authority to pay a PERS pick-up absent a
written agreement authorizing the pick-up.
The Union cannot show that such an agreement existed before Measure 8,
and it is unconstitutional to enter into or order such an agreement now.
authority exists for the Arbitrator to modify the plain and unambiguous
language of Section 11.1(L) of the Sheriff's Unit Agreement.
There is no compelling evidence that the parties intended to include
such a provision in their agreement, but simply forgot.
This provision was first proposed by the Union [sic] during
negotiations for the 1992 Agreement. That
proposal went to interest arbitration. The
Interest Arbitrator's decision is easily understood.
party knows why the current language of Section 11.1(L) appeared in the final
version of the Sheriff's Agreement. The
Arbitrator should not speculate that the parties actually intended the word
"employer" to read "employees."
The language may have been intended merely to recite the County's obligation
to match employee contributions, as provided in ORS 237.071(4)(a).
The language is plain and unambiguous, and is not subject to
interpretation or change.
language of Section 11.1(L) is clear and unambiguous.
There is therefore no authority to resort to principles of contract
"intent" of the contract is best reflected by the ruling of the
Interest Arbitrator. If any
mistake was made, it was to include any language, since to do so was
inconsistent with the Interest Arbitrator's ruling.
Section 11.1(L) is ambiguous, the Union bears the burden of demonstrating the
parties intended the word "employer" to read "employees."
This intent must have arisen after the interest arbitration, since the
County was under no obligation to include any PERS language in the Agreement.
The County's willingness to do something it was otherwise not
required to do must have resulted from the exchange of some provision the
Union was not otherwise required to offer.
However, no evidence exists of such an exchange, or of any negotiations
after the interest arbitration award. The
Union had the opportunity to review the later drafts for errors.
Presumably, any language negotiated after the interest arbitration
would have received special scrutiny. The
Union cannot claim error now.
Union does not claim any typographical error in the language requiring payment
of PERS contributions "in accordance with the rules and regulations of
the PERS Board." Those rules and regulations have been changed to comply
with the new constitutional language. Under
the unchallenged portion of Section 11.1(L), the County is prohibited from
paying a PERS pick-up. ERB has
clearly ruled that the passage of Ballot Measure 8 required the modification
of existing plans to conform with the new constitutional language.
Agreement defines the term "work rule."
The context in which each uses the term demonstrates that a work rule
is an exercise of management discretion concerning the way the County operates
its business. Such flexible and
relatively unilateral decision-making is not the same as a contractual
agreement to pay a fixed salary or a PERS pick-up.
ERB has concluded that the PERS pick-up is a "direct or indirect
monetary benefit." ORS
237.075(2) considers the PERS pick-up as "salary."
Similarly, the Union sought to replace the loss of the PERS pick-up
with a salary increase.
parties did not intend or envision that "work rules," as used in
Sections 17.2 and 18.2 of the respective Agreements, included the PERS
pick-up. Even if they had so
intended, those Sections explicitly make the adoption of such rules subject to
the requirements of law. Article
IX Section 10 of the Oregon Constitution is such a requirement.
In any event, the County's obligation was merely to "discuss"
and "bargain," if requested, over a change in work rules.
The Union did not request bargaining or discussion within the
contractual 10-day period. Further,
the parties did discuss the imminent termination of the PERS pick-up before
December 16. By January 6,
Measure 8 precluded bargaining a salary adjustment to account for the lost
PERS pick-up. Although retirement
benefits may be a mandatory subject, the necessity doctrine excused
implementation of Measure 8 without bargaining.
the same reasons, the PERS pick-up is not a "working condition"
within the meaning of Section 1.2 of the Courthouse Agreement.
In context, "working condition" refers to the exercise of management
discretion concerning the operation of the County.
Even if it is a "working condition," the parties are
prohibited from bargaining for a salary adjustment offsetting its loss.
18.5(c) of the Courthouse Agreement does not apply to the termination of the
PERS pick-up. The County has not amended its personnel policies regarding
the PERS pick-up. PERS is not
now, and never has been, mentioned in the County's personnel policies.
The PERS pick-up is a salary benefit.
It clearly is not a "noneconomic" subject, nor is the Union's
request to bargain over salary adjustments a "noneconomic" subject.
Even if the termination of the PERS pick-up were an amendment to a
personnel policy and a "noneconomic" subject, it is not subject to
Assuming that the PERS pick-up is a "work rule" and that the Union made a timely request to discuss, the County and the Union did discuss alternatives to implementing the provisions of Measure 8. Ultimately, in December, the County simply decided not to accept the Union's proposals. Measure 8 prohibited the County from continuing these discussions after January 1.
Union has never independently claimed that the past practice of paying the
PERS pick-up created a binding obligation to continue that practice.
ORS 237.075 is clear that the County cannot authorize a PERS pick-up by
oral agreement or implication. At
most, the "bilateral agreement" claimed by the Union is one not to
change conditions of employment without giving the opportunity to negotiate.
This does not create a right to the continued payment of a PERS pick-up
after January 1.
Agreement obligates the County to pay a PERS pick-up.
It is questionable whether the County ever had authority to make such
payments, since no written authorization required by ORS 237.075 can be
located. Even if such a written
agreement existed, a public employer cannot continue to pay a PERS pick-up
after January 1, 1995.
facts do not support the Union's argument that the County violated the
Agreements by not notifying the Union of an intent to change the PERS pick-up
and denying an opportunity to negotiate the issue.
However, even if such a contract violation occurred, the requested
remedy is not available. The County cannot be ordered to pay a PERS pick-up until it
negotiates the pick-up with the Union. Measure
8 prohibits the County from negotiating the PERS pick-up.
IMPACT OF EXTERNAL LAW
Arbitrator draws her authority from the parties' Agreements.
The Sheriff's Agreement explicitly permits the Arbitrator to interpret
and apply its provisions "in accordance with applicable legal
standards." The Courthouse
Agreement contains no such language. Neither
contract confers on the Arbitrator the authority to independently enforce
external law in contravention of the parties' Agreements.
If one or both Agreements clearly and unambiguously set forth the
parties' obligations, the Arbitrator will not rely on her interpretation of
external law to modify or void the applicable contractual provision.
Such revision would directly contravene the contractual limits on the
the same time, the parties have contracted within a framework of law.
Where the contractual language permits two reasonable interpretations,
one of which conflicts with the law and the other of which raises no such
conflict, the Arbitrator will prefer that interpretation which does not
conflict with law. This factor
comes into play only where the law is sufficiently settled to permit the
Arbitrator to determine what the law is. Where
the law is unsettled, the better course is to interpret the contract without
reference to external law. In
short, the Arbitrator will limit herself to interpreting the Agreements, and
leave to the courts and administrative agencies the interpretation and
enforcement of the law.
Arbitrator must evaluate the alleged contract violation at the time it
occurred. On December 19, when
the County announced its intention to begin deducting PERS payments, Measure 8
had not taken effect.
Neither party has pointed to any law in effect on December 19 excusing
the County from continuing to adhere to a pre-existing obligation to pay
the pick-up, if such an obligation existed.
11.1(L) of the Sheriff's Agreement requires the County to make payments
consistent with PERS Board rules and regulations.
That requirement can only refer to the rules and regulations in effect
when the County acted. No
evidence exists that any change in those rules had occurred by December 19.
Future changes whose scope could only be guessed formed no basis for
assessing the County's obligations as of December 19.
Arbitrator has no authority to determine whether the County's payment of the
PERS pick-up met the "written policy or agreement" requirements of
ORS 273.075 or OAR 459-10-208(1). The
authority to enforce those provisions belongs to the PERS Board and/or the
courts. No evidence exists that
either has ever suggested or held that those payments did not comply with the
legal requirements, despite the fact that the County has paid them for years.
It would be improper for the Arbitrator now to void any obligation that
otherwise may exist to make those payments based on the asserted more
stringent interpretation of the applicable law.
applicable standards for contract interpretation are well established.
Where the language is clear and unambiguous, the Arbitrator must give
effect to the parties' intent. That
is so even where one party finds the result unexpected or harsh. Extrinsic evidence cannot be used to vary clear contract
language. It can be used to
demonstrate a latent ambiguity or typographical error in the language.
However, the party asserting the ambiguity or error bears the burden
of demonstrating it. If the final
contract does not reflect the parties' true intent because of a typographical
error, the Arbitrator may reform the Agreement so as to effectuate the
parties' true intent.
contract language is unclear or ambiguous, the Arbitrator may look to
extrinsic evidence of the parties' intent.
Bargaining history is significant where either the evolution of
language or the parties' statements demonstrate the intent behind particular
intentions do not aid in interpreting language.
Past practice under the contract is persuasive where the practice is
clear, consistent, and known to both sides.
evidence that the parties intended a specialized meaning, the Arbitrator must
give words their common and accepted meanings.
The Arbitrator must avoid interpreting ambiguous language to nullify
or render meaningless any part of an Agreement if another reasonable interpretation
gives effect to all provisions. The
Arbitrator must prefer that interpretation which avoids harsh, absurd, or
nonsensical results. The
Arbitrator cannot grant to a party a provision which it was unable to achieve
in bargaining. Any ambiguity not
removed by other rules of interpretation may be removed by construing the
ambiguous language against its proponent.
intent is not applicable to language won through interest arbitration.
Mutual intent is relevant to the scope of the matter submitted to
interest arbitration. The parties
have the power to include in their agreement provisions that were not awarded
in Interest Arbitration. As with
any other agreed-upon contract terms, the normal rules of contract interpretation
apply to such provisions.
stipulated issues direct the Arbitrator to consider whether the County
violated specific provisions of the respective Agreements.
At the outset of the hearing, the parties agreed to delete the phrase
"and any other Article/Section that may apply" from the stipulated
issues. None of the cited provisions
give contractual status to past practice, such as the alleged practice of
bargaining over all changes in subjects of bargaining.
Given the specificity of the submission, it would be improper to look
to contractual provisions other than those cited to determine whether they
preserve past practice. Thus, the
Arbitrator has no authority to determine whether a past practice existed that,
in and of itself, would have obligated the County to bargain over this matter.
record does not support the County's suggestion that Blitz mistakenly included
Section 11.1(L) in preparing the draft and final copies of the Sheriff's
Agreement. Blitz knew which
matters remained in dispute at the start of the interest arbitration.
He drafted the County's proposal.
The inclusion of the County's language in the draft contracts prepared
by Blitz's office after the interest arbitration demonstrates that the parties
agreed to include a PERS provision. The
question remains whether Section 11.1(L) accurately expressed the parties'
agreement. The Union bears the
burden of establishing that the use of the word "employer" was a
Union's position regarding the intent of Section 11.1(L) finds some support in
the County's interest arbitration brief, which did not challenge the word
"employees" in the Union's proposed language.
However, the record as a whole does not meet the Union's burden of
language that Section 11.1(L) replaced made no explicit reference to the PERS
pick-up or employee contributions. Younger
did not testify to discussions in bargaining over payment of the PERS pick-up.
The Union also missed several opportunities to raise the alleged error.
Although Younger changed "employer" to "employees"
on his copy of the County's proposal, he did not point out the alleged error
to Blitz. After the interest
arbitration, the County continued to use its language in the draft and final
contracts. That language varied
from the Union's proposal not only in its use of the term
"employer," but in the omission of sick leave conversion language
and the disputed final sentence. On
this record, the Union has not shown that the variance in language from its
proposal was inadvertent or a typographical error.
11.1(L), on its face, is clear and unambiguous.
It obligates the County to make the employer contribution to PERS.
It does not refer in any way to other PERS payments.
Accordingly, the County did not violate this provision when it
discontinued paying the PERS pick-up.
Agreements are clear and unambiguous regarding the obligation to discuss
changes in "work rules." Nothing
in either Agreement suggests the parties intended to give the term "work
rule" a meaning other than the usual labor relations meaning, and the
context in which this term appears is consistent with labor relations usage.
In labor relations parlance, "work rules" refer to the rules
by which employee conduct is regulated. The
payment of the PERS pick-up is not such a work rule.
It is therefore unnecessary to determine whether the Union met the
contractual time limits for protesting changes in work rules.
Section 18.2 of the Courthouse Agreement, and Section 17.2 of the
Sheriff's Agreement, simply do not apply to the contested action.
It is thus concluded that the County has not violated either provision
by discontinuing the PERS pick-up.
18.5(c) of the Courthouse Agreement is clear and unambiguous.
That language addresses only mandatory noneconomic matters included in
the personnel manual. No evidence
exists that the PERS pick-up has ever been included in the personnel manual.
Moreover, while the PERS pick-up is a mandatory subject of
bargaining, by no means can it be considered a noneconomic subject.
It is therefore concluded that the County did not violate this
provision by discontinuing the PERS pick-up.
condition," as used in Section 1.2 of the Courthouse Agreement, is not
synonymous with "work rule," as used in Section 18.2.
The two terms are governed by separate provisions, suggesting the
parties distinguished between them. Unlike
changes in work rules, which require only discussion, the Agreement explicitly
requires the opportunity to bargain over a change in working conditions.
The two terms also have distinct meanings in common labor relations
parlance. While work rules refer
to employee conduct, working conditions refer to matters which often
constitute mandatory subjects of bargaining, including employee benefits.
Payment of the PERS pick-up is an employee benefit.
Section 1.2 of the Courthouse Agreement thus required notice and
bargaining before discontinuing the PERS pick-up.
obligation to bargain is not an obligation to reach agreement.
It is an obligation to discuss with the good faith intent to reach
agreement. The County declined to
bargain with the Union over the PERS pick-up before the November 1994
election. On December 19, it announced
PERS deductions as a fait accompli and specifically declined to
reopen the Agreements. Simply
put, the County did not bargain over this issue.
It is therefore concluded that the County violated Section 1.2 in
suspending its payment of the PERS pick-up without first bargaining.
usual remedy for a contractual violation is to reinstate the status quo
ante and make employees whole for losses occasioned by the breach.
In this case, the status quo ante for the Courthouse Unit is the
payment of the PERS pick-up by the County, subject to an obligation to bargain
over any change.
The Arbitrator will so order in this case.
Courthouse Unit, Represented by Local 2746
The County did not violate Article 18 - General Provisions, Section 2 -
Work Rules, Article 1 - Management Rights, Section 5 - Entire Agreement when
the County unilaterally implemented effective January 1, 1995 a requirement
that employees pay the employee portion of PERS by way of payroll deduction.
The County violated Article 1 - Management Rights, Section 2 - Changes
in Working Conditions, when the County unilaterally implemented effective
January 1, 1995 a requirement that employees pay the employee portion of
PERS by way of payroll deduction.
a remedy, the County shall reinstate the status quo ante in the
Courthouse Unit and shall make employees whole for losses occasioned by the
unilateral implementation of a requirement that employees pay the employee
portion of PERS by way of payroll deduction.
As agreed by the parties, the Arbitrator retains jurisdiction over the
remedy portion of this Award and any dispute arising therefrom.
Sheriff's Unit, Represented by Local 2746-0
The County did not violate Article 11 - Compensation, Section 11.1(L),
Article 17 - General Provisions, Section 2 - Work Rules when the County
unilaterally implemented effective January 1, 1995 a requirement that employees
pay the employee portion of PERS by way of payroll deduction.
LUELLA E. NELSON -
The Arbitrator notes that Measure 8 is the subject of review in
several jurisdictions within the state court system.
That is the appropriate forum for determining the scope and meaning
of Measure 8.
The Arbitrator expresses no opinion regarding whether such an
obligation would ensue from the provisions of PECBA.
That decision must be left to the ERB, which has authority to
interpret and apply that statute.
The Arbitrator expresses no opinion regarding whether Measure 8
prohibits the County from bargaining away its existing obligation to pay
the PERS pick-up.
Post Office Box 8173 Portland, OR 97207Phone: 877 399-8028