Title: Portland School District and Portland Association
IN ARBITRATION PROCEEDINGS
PURSUANT TO AGREEMENT BETWEEN THE PARTIES
Arbitration arises pursuant to Agreement between Portland Association of
Teachers ("Association"), and Portland School District
("District"), 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 August 25, 1997, in Portland, Oregon.
The parties had the opportunity to examine and cross-examine witnesses,
introduce relevant exhibits, and argue the issues in dispute.
Both parties filed pre-hearing briefs and submitted the matter on
closing oral argument. By
agreement of the parties, the Arbitrator issued a bench award at the hearing,
to be followed by this summary Opinion and Award.
behalf of the Association:
Mr. Randy Ventgen, Consultant, Oregon Education Association, 345 NE 8th
Avenue, Portland, OR 97232-2708
behalf of the District:
Donna M. Cameron, Esquire, and Sharon Toncray, Esquire, Miller, Nash,
Wiener, Hager & Carlsen, 3500 U. S. Bancorp Tower, 111 SW Fifth Avenue,
Portland, OR 97204-3699
Did the School District violate Article 10.B.1,
10.E.2, 8.K, or 9.A of the collective bargaining agreement when it
“unassigned” teachers at Humboldt Elementary School for the 1997-98 school
2. If any of those contract articles were violated, what should the remedy be?
RELEVANT SECTIONS OF AGREEMENT
D - Arbitration
the grievance is pursued to arbitration, the issues before the arbitrator
shall be limited to those presented at Level II. ...
A. The performance of unit members
shall be evaluated in writing. While
varied sources of information are weighed and considered, the written
evaluation of a unit member’s performance will be done only by licensed
performance on District-wide and/or other standardized tests may indicate
where modifications of instruction are required and the implementation of such
modifications may be part of the evaluation process.
However, evaluations or criticism of a teacher shall not be based
specifically on the issue of comparisons of such student performances.
UNIT MEMBER RIGHTS AND JUST CAUSE
A. No unit member shall be
disciplined, reprimanded or reduced in compensation without just cause.
Reprimands shall be made privately and not in the presence of students,
parents, unit members or members of the community. ....
UNIT MEMBER TRANSFERS
to the end of the school year, principals and other supervisors shall give
written notice to unit members of their specific assignments for the
subsequent school year. Affected
employees shall be notified in writing of any assignment changes that occur
during the summer recess period.
As the District prepares to fill vacancies for the subsequent school
year, a posting of such vacancies shall be made at the Personnel Department
and at each worksite. Such
vacancies shall be posted for a five-day period.
Posting is not required for vacancies to be occupied by unassigned unit
members, or to be occupied by other administrative transfers.
Administration Initiated Transfers
1. When the administration is of the
opinion that a unit member should be transferred, the situation shall be
discussed with the unit member. All
reasonably practicable efforts will be made to effect a suitable re-assignment
fairly and objectively, including consideration of the unit member’s
preference. A unit member will be
notified through consultation as soon as possible but at least seven (7)
calendar days prior to the transfer date. ...
2. In the event that a tax base or
levy failure, declining enrollment, program change, or change in funding
results in reduction of staff in a building or program area, transfer of staff
will be based on educational criteria as described below with respect to the
program requirements as determined by the District. Volunteers will first be requested and considered from among
the staff members. Such
volunteers will be selected for transfer if they are from within the grade
level(s) or subject matter area(s) where the positions are to be eliminated
provided the volunteer(s) are not on an Evaluation Plan of Assistance.
In the absence of volunteers, the unit member having the least
seniority in the District shall generally be transferred. ...
If a unit member has been administratively transferred under the
provisions of 10.E.2. and a position for which the unit member is qualified at
his or her original school or program becomes available, the unit member may
be returned to that school under the provisions of 10.E.1.
If such a position occurs while the unit member is unassigned, the unit
member shall be returned to that school or program.
F. On occasion, the District may
consider the transfer of a unit member for reasons other than those set forth
in paragraph 10.E.2. above.
1. The following procedures shall
apply when the reason for transfer is due to unresolvable differences between
the unit member and the supervisor:
2. In other types of involuntary
administrative transfers under paragraph 10.E.1., a unit member can appeal an
unconsented-to administrative transfer to review by the Region Director.
The unit member will also be given opportunity to present his/her
position to the Director of Personnel who would have to approve the
unconsented-to transfer before it can occur.
3. No unit member will be transferred
for reasons that are arbitrary or capricious.
An illustration of an
arbitrary and capricious transfer would be one based on union activity.
An illustration of an involuntary transfer decision which would not be
arbitrary and capricious is a transfer due to a long-standing unresolvable
conflict between a unit member and supervisor.
The involuntary transfer could not occur for performance deficiencies
that would be dealt with in an evaluation or plan of assistance or for any
other reason that would violate this contract.
G. If a decision to transfer a unit
member is reversed by an arbitrator, the unit member shall be reinstated to
the building no later than the beginning of the next semester after the
facts in this case are largely undisputed.
Humboldt Elementary School has been the subject of concern for years
because of low scores on standardized achievement tests.
Community groups have threatened a boycott of Humboldt and other
schools with similar problems. In
some instances, including during spring 1997, community groups have suggested
action against teachers whose students’ test scores did not improve.
Recent legislation has placed more emphasis on test scores in grades 3,
5, 8, and 10.
Work on improving student test scores has occurred on several fronts. Humboldt teachers researched and attended conferences on various remedial programs, and developed proposed changes in the school calendar and curriculum. The Association suggested the District implement a research-based program developed by the Association’s parent body, the National Education Association. Superintendent Jack Bierwirth met individually with every school principal over the past few years. In May 1997, the School Board adopted a resolution dealing with student achievement. One approved measure was intervention for schools where other forms of assistance had not resulted in improvement.
decided to “do something fairly dramatic” to turn Humboldt around.
Rather than make incremental changes, he decided to make a “clean
break,” develop an overall plan, and re-staff the school with staff who were
totally committed to that plan in the hope of achieving a swift turn-around.
June 9, three days before the end of the 1996-97 school year, the Humboldt
principal held a staff meeting to announce that the entire school staff
(including not only teachers, but also clerical employees, kitchen and
custodial staff, and the principal herself) would be removed from the school.
Although early press accounts suggested the entire staff had been
“dismissed,” no employees were dismissed.
Lisa Newlyn testified she and other teachers felt there was an implication
that they were poor teachers and that they were being fired, although no
administrator explicitly said anyone was a “bad teacher” or was being
punished. She recalled
considerable discussion of whether Humboldt teachers would be hampered by the
“scarlet H” of having taught at Humboldt. However, her own written evaluation was favorable, and made
no mention of student test scores.
June 12, District administrators met with Humboldt classified and certified
staff to discuss the plans for the coming year.
Newlyn testified many of the proposed changes were similar or identical
to proposals developed by Humboldt staff, while others were new, and the plans
provided more resources to Humboldt than in the past.
Later in the meeting, administrators described the process of bidding
on vacancies (known as “rounds”) and encouraged teachers to re-apply for
Humboldt positions. Teachers were
told there was no guarantee they would return to Humboldt.
22 teaching positions at Humboldt were posted. 11
teachers who had taught at Humboldt in 1996-97 applied to return to Humboldt.
Of those, nine (including Newlyn) were offered assignment to Humboldt
for 1997-98; seven of those accepted that offer, while the other two accepted
assignment to other schools. Humboldt
will have more teachers, supplies, and staff in 1997-98 than it had in
BARGAINING HISTORY AND PAST PRACTICE
District has never before unassigned an entire teaching staff from a
school. It has unassigned
teachers in conjunction with reductions in staff or changes in programs at
particular schools. It has also
made administrative transfers of teachers. Article 10.F was added to the Agreement in response to a 1991
dispute over administrative transfers. The
District had asserted those transfers were due to conflicts between the
teachers and the principal; the Association believed they were the result of
8.K was added to the Agreement in 1983, largely as a defense to community
pressures to remove or sanction teachers whose students had low test scores.
The Association’s initial proposal would have precluded use of test
scores for “evaluation, discipline or criticism of teachers.”
After the District acknowledged discipline based on test scores would
not withstand a “just cause” test in any event, the Association agreed to
drop the word “discipline” from its proposal.
However, despite District resistance, the Association insisted on
retaining the word “criticism.” The
Association agreed to add language permitting test scores to be used to set
goals and make program changes.
POSITION OF THE ASSOCIATION
10.E.2 specifically describes that “unassigned” teachers occur as a result
of reduction of staff in a building. Humboldt
staff positions have been increased, not reduced.
It was a violation of 10.E.2 to unassign Humboldt staff.
10 covers all transfers. Other
than those staff members who become unassigned under Article 10.E.2, staff are
transferred through voluntarily applying for posted positions or by
administrative transfers. If
Humboldt staff were not unassigned and were not administratively transferred
under Article 10.F, they could not be transferred.
These transfers violated the long-standing practice regarding
District argued at Level II that Article 10.F did not apply; it therefore
cannot argue here that it applied. The
District tried to eliminate the Agreement as a factor in transfer decisions.
Even if Article 10.F applied, the District acted arbitrarily.
It did not give assistance before taking other action, as called for by
the Board resolution. There was no indication the resolution was intended to apply
to assistance that had been given before the resolution was passed.
It gave staff no notice of the intended action.
It intervened on the basis of a program it was going to introduce, but
unassigned the staff that had developed the program.
It was arbitrary to base its decision on a technique whose
effectiveness was unknown. The
District refused to consider the research-based program the Association
proposed, which would work. The
action was also arbitrary because it criticized staff based on student test
District violated Article 10.B.1 by posting jobs at Humboldt to which
incumbents were entitled.
District transferred Humboldt staff because of student test score results.
The pressures for the decision were based on test scores. Criticism of the staff’s inability to perform because of
test scores was evident in the community group’s call for sanctions and
Bierwirth’s call for moving them out. The
transfer was direct criticism in violation of the clear language of Article
8.K. Article 8.K came out of a
nearly identical situation and was intended to cover such criticisms. These transfers were an attempt to shift the blame for
student test scores to staff. The
District created the impression that teachers were not competent because test
scores did not go up, and they were moved as a result.
It demoralized and sanctioned teachers.
The transfers were arbitrary and disciplinary, and therefore in violation of Article 9.A.
District cannot take action against an entire staff which would be prohibited
if directed at an individual teacher. Criticism
is criticism, whether directed at an individual or an entire staff; the same
is true of discipline. This
action cannot be justified under the management rights clause.
That provision is subordinate to the Agreement.
necessity” does not permit the District to violate the Agreement.
At best, the District might be permitted to implement the change
pending negotiations, after written notice to the Association.
Even if the District had met this requirement, the Employment Relations
Board (“ERB”) has never found business necessity allowed a unilateral
change. In any event, the reasons
given by the District do not amount to a business necessity. The District had other options, and this action was far from
the best option.
District delayed resolving this matter, while the Association sought to move
forward. Staff should be
reinstated as of the Fall 1997 semester.
Everything the District did after the unassignment decision is
irrelevant to the remedy. If the District had not taken this action, only voluntary
bids on postings would have affected teacher placement. The Association was not involved in the meetings that led to
teachers’ assignments, and their decisions regarding bidding did not waive
their rights to reinstatement.
action was taken to set the ground for similar actions at other schools with
low test scores. The District
needs a ruling sending a message this is not the way to try to fix student
achievement. The District must
respect contract rights as it goes about improving student achievement.
The Association has not blamed students, and it is equally insulting to
shift the blame entirely to teachers. Research
shows that assigning blame does not work, but joining together does.
District should admit it made a mistake, and write an apology to the staff and
the community. It should join
with the Association and the community to implement a successful achievement
policy that is research-based and takes into accounts the contributions of all
POSITION OF DISTRICT
Humboldt restaffing is controversial, dramatic, and extreme.
The Agreement does not address problems faced by a school like
Humboldt. It says nothing about this type of restaffing.
It does not vest authority in the Union to participate in decision
making regarding instructional programs or assignment of staff.
District has the authority to run the schools unless the Agreement
specifically prohibits taking some action.
The District is not arguing “business necessity,” because it is not
trying to justify a contract violation or unilateral change.
Restaffing was an educational decision within the District’s
responsibility. The Arbitrator
sits to decide grievances under the Agreement.
Although the Arbitrator needs to understand the background of the
restaffing decision, she has no power to decide whether student performance
was bad enough to justify an extreme measure, or whether different educational
programs should be tried.
8.K does not require the District to ignore test results or pretend teacher
actions have no impact on student performance.
It recognizes that student test results “may indicate where
modifications of instruction are required.”
That is what occurred here. The
only limitation is on singling out teachers for evaluation or criticism based
on student performance. This was
not done. The District’s actions were directed at correcting the
school as a whole. The District
was very careful not to single out any teacher for criticism.
The problem was not with individual teachers; it was that the system
was not working. Sometimes a
situation becomes so negative that even the best teachers cannot overcome it
without a drastic change. It is
not criticism to acknowledge that test scores are so awful that something
needs to be changed; that would ignore reality.
No Humboldt teacher received an evaluation based on student test
results. The District expects
Humboldt teachers to be successful in their new assignments.
teacher was disciplined. Discipline is not simply in the mind of the teacher. It
is an intentional act with an objective manifestation.
No teacher received a warning, reprimand, suspension, demotion, or
discharge. There is no need to
consider whether “just cause” existed, because no discipline occurred.
10.B.1 was not violated. It does
not prohibit posting jobs when transferring someone out.
Once the Humboldt teachers were unassigned, there were positions to be
filled. The District could have
filled the vacancies by administrative transfers, without using the posting
and application process. However,
that procedure would not have allowed community input and was not suited to
find teachers who would bring the necessary enthusiasm, attitude, skills, and
personality to Humboldt. The
District complied with the spirit, as well as the literal language, of the
administrative transfer provisions were not violated.
Article 10.E.2 does not apply to this situation; it applies only where
there was been a “reduction of staff in a building or program area.”
Nothing in Article 10.E.2 suggests it applies if the staff in the
building is not being reduced. The
fact that Article 10.E.2 refers to unassignment does not mean that a reduction
in force is the only way one can become unassigned.
The Agreement does not define unassignment and does not limit it in
10.E.1 is the transfer provision that applies.
That provision recognizes the District’s right to transfer teachers
“when the administration is of the opinion that a unit member should be
transferred.” The only limitation on that right is in Article 10.F, which
applies when teachers are transferred because they cannot get along with their
principals. Other than that
specific exception, Article 10.E.1 recognizes the District’s right to change
the worksite or job assignment of the teacher.
Article 10.F refers back to Article 10.E.1 regarding administrative
transfers for other reasons.
initial sentence of Article 10.F acknowledges the District’s right to
transfer teachers for reasons other than those specified in Article 10.E.2.
The language of Article 10.F.3 confirms this point.
Because the Association has not grieved this section, it is not before
the Arbitrator. In any event,
this decision was neither arbitrary nor capricious.
There may be some debate about how to turn the school around, but this
decision was the result of the District’s best effort and opinion.
ERB has recognized that, within the parameters of the employee’s normal job
duties and when job security is not threatened, the site of work and specific
job assignment are management prerogatives which are not even mandatory for
bargaining. There is nothing
shocking about the District retaining some of this management prerogative.
The general rule is that, unless specifically restricted, management
has the right to transfer employees. The
employee’s willingness to move is not required.
Union bears the burden of persuasion as the moving party in this contract
The 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. Where contract language is unclear or ambiguous, the Arbitrator may look to extrinsic evidence of the parties' intent. Such evidence includes bargaining history, contemporaneous statements regarding the agreement reached, the practice in implementing the agreement, and post-contract clarifications and modifications.
Arbitrator must avoid interpreting ambiguous language to nullify or render
meaningless any part of the Agreement if another reasonable interpretation
gives effect to all provisions. The
Arbitrator must prefer that interpretation which avoids harsh, absurd, or
nonsensical results. Any
ambiguity not removed by other rules of interpretation may be removed by
construing the ambiguous language against its proponent.
Arbitrator does not sit as a substitute for the school board or
superintendent. It is beyond her
jurisdiction to consider whether good policy reasons exist for what the
District did or equally good reasons exist to respond to the expressed
concerns in a different manner. If
the action taken did not exceed the District’s powers under the Agreement,
then no contractual violation occurred, regardless of how well- or ill-advised
the action may have been as a matter of educational policy.
Thus, the question here is not whether the means the District chose
were optimal or wise, but whether they violated the Agreement.
question at hand also is not whether it would have been wise to involve the
Association or the Humboldt teachers in developing a plan of action.
If the Agreement prohibited the District from taking the steps it did,
the only contractually-permissible means of pursuing the desired course would
be to negotiate with the Association for a side letter permitting an exception
to the Agreement. If the District
chose not to negotiate such a waiver of a contractual obligation, good
intentions would not excuse the violation.
On the other hand, if the action taken did not exceed the District’s
powers under the Agreement, then there was no contractual violation. This would be so even if were shown beyond a shadow of a
doubt that the action demoralized teachers or was otherwise detrimental to
good labor relations.
8.K unequivocally permits modifications of instruction made based on
standardized test scores. At a minimum, that happened here; the question is whether
there was also evaluation or criticism based on these scores.
common workplace terminology, “evaluation” refers to periodic individual
evaluations--often written--such as those described in Article 8.A.
No evidence exists that any teacher’s written evaluation made
reference to student test scores. Therefore,
the only issue is whether the unassignment decision was a “criticism”
within the meaning of this provision.
the language of Article 8.K nor the evidence regarding bargaining history
suggests the parties intended “criticism” to refer only to the written
evaluation process. Were that so,
the language would be superfluous. In
context, the language can only refer to suggestions outside the evaluation
process that the teacher’s performance is somehow deficient.
The bargaining history also supports this reading.
The Association’s initial proposal also addressed use of test scores
for “discipline” in addition to evaluation and criticism.
In light of the parties’ discussions of “just cause,” the
omission of “discipline” from the final language does not shed much light
on the meaning of the agreed-upon provision.
However, the fact that the Association adamantly insisted on keeping
“criticism” in the language is strong evidence that the term was not
intended as a synonym for the written evaluation.
Rather, it was intended to prohibit other actions that could adversely
affect a teacher’s reputation without being put into the personnel file.
this case, there is no allegation of any statements accusing Humboldt teachers
(individually or as a group) of teaching deficiencies or misbehavior.
It is understandable that some teachers (and, for that matter, members
of the public and press) may have felt the unassignment implied criticism of
their teaching. However, the
actual quotes from administrators in evidence support the District’s
assertion that everyone in administration was careful not to lay the problem
at the teachers’ doorstep.
Arbitrator recognizes there is a fine line between saying there is bad staff
chemistry and saying there is a bad staff.
The District successfully walked that line.
A real distinction exists between criticism of a group and criticism of
the individual members of that group.
The distinction becomes even greater when the criticism is not of a
group, but of a group dynamic.
In this case, the District did not target teachers as a group.
It removed not only teachers, but also the principal, the support
staff, and all other adults working in the facility.
This drastic move did not, explicitly or implicitly, criticize
teachers, janitors, or any group of employees. If
anything, it removed any possibility of assigning blame to one group of
record includes press accounts of varying degrees of accuracy that are more
critical of teachers as the source of Humboldt’s problems.
Those reports do not purport to be quotes of District administrators;
instead, they are the reporters’ attempts to explain the situation at
Humboldt. Unfortunately, it is
easy to see how reporters rushing to meet deadlines could misinterpret the
District’s actions, or phrase a story to suggest criticism of the affected
teachers. Such independent press
accounts, however, do not constitute District criticism of teachers.
Based on all of the above, it is concluded there has been no violation of Article 8.K.
9.A is a straightforward just cause provision for discipline.
For it to apply, the Association must establish that the unassignment
decision was disciplinary in nature. No
evidence exists that any teacher was reduced in compensation as a result of
the unassignment. The only
question is whether the unassignment was a “discipline” or “reprimand”
within the meaning of this provision.
certainly can occur without a corresponding entry in the personnel file.
However, the fact that a teacher found an action undesirable, or even
demoralizing, does not mean the action was “discipline” as that term is
commonly understood in employment relations.
Discipline commonly refers to adverse actions taken with the purpose of
having a corrective effect on behavior or performance.
No such purpose was shown here.
No allegation has been made that Humboldt teachers were misbehaving or
deficient in their performance. No
changes in behavior or performance improvements were suggested, nor were other
corrective steps taken of the sort likely to induce behavior modification.
No evidence exists that administrative transfers are commonly viewed
as discipline. Accordingly, on
this record, the District did not violate Article 9.A.
the grievance alleges violations of two specific provisions within Article 10,
it is essential to look at the Article as a whole in interpreting those
10.E.1 introduces the concept of administrative transfers.
It makes the determinative question in such a transfer whether the
administration is “of the opinion that a unit member should be
transferred.” This provision
confers quite broad discretion on the District, subject to any other
contractual provisions limiting the reasons for which transfers could be made.
to Article 10.E.2, the language is clear and unambiguous.
It governs the manner in which a staff reduction will be handled, and
describes the various events which might generate such a staff reduction.
In this case, there was no tax base or levy failure, declining
enrollment, or change in funding, nor did the planned program change at
Humboldt result in “reduction of staff in a building or program area.”
Accordingly, the action taken was not the type of transfer governed by
this record, Article 10.E.2 does not prohibit the District from unassigning
teachers in situations other than staff reductions.
The language is not written in such exclusionary terms, nor can it
fairly be read as a definition of the term “unassigned.”
On the contrary, the only use of that term within Article 10.E.2 is in
subsection “e,” in discussing situations where a position becomes
available after a staff reduction. The
parties had it within their power to prohibit a two-step process for
administrative transfers such as that involved here, by inserting clear
language limiting the way that one became “unassigned.”
They did not. It is beyond
the Arbitrator’s authority to read such a limit into the Agreement.
fact that the District has not previously unassigned teachers, except when
reducing staff in a school or program, does not necessarily mean it had no
contractual right to do so. A party
does not waive a contractual right by not exercising it, particularly absent
evidence that an occasion has arisen in which one might otherwise want to
exercise that right. Therefore,
neither Article 10.E.2 nor the District’s practice under that provision limits
the ability to unassign teachers to instances where staff is being reduced.
10.F provides further context for the terms used.
Article 10.F.1 provides appeal procedures for a type of transfer (unresolvable
differences) that is not specifically mentioned in Article 10.E, while Article
10.F.2 provides a different appeal procedure for other unspecified types of
involuntary administrative transfers. Article
10.F.3 prohibits transfers for arbitrary and capricious reasons, but treats the
type of transfer involved in Article 10.F.1 as only an “illustration” of a
transfer that is not arbitrary or capricious.
Article 10.F thus does not restrict Article 10.E.1.
On the contrary, it recognizes that administrative transfers are
available under Article 10.E.1, apart from those regulated by Article 10.E.2.
on all of the above, it is concluded there has been no violation of 10.E.2.
10.B.1 prescribes the process of posting, and describes the kinds of vacancies
for which posting is not required. On
its face, it is not a substantive limit on the ability to post vacancies.
In light of the findings above, the vacancies at Humboldt were not
improperly created. It therefore
was proper to post them. Accordingly,
there has been no violation of Article 10.B.1.
School District did not violate Article 10.B.1, 10.E.2, 8.K, or 9.A of the
collective bargaining agreement when it “unassigned” teachers at Humboldt
Elementary School for the 1997-98 school year.
August 31, 1997
______________________________LUELLA E. NELSON - Arbitrator
Although the issue statement, as typed in the District’s
pre-hearing brief, refers to Article 10.E.1, the grievance alleged a
violation of 10.B.1, and the Level II recommendation refers to that
provision. In light of the contractual prohibition on raising issues
that were not presented at Level II, the Arbitrator presumes that the issue
statement was intended to refer to 10.B.1, and has corrected the
issue statement accordingly.
Some of the same community leaders who urged that result in 1983
remain active in pushing for changes at Humboldt and other schools.
As an example, a vast legal distinction exists between the statement,
“All lawyers are dishonest” and the statement, “Lawyer X is a
For example, a mob has been defined as a creature with many legs and
no brain. That description does
not denigrate the intelligence of individuals within the mob, but merely
describes the effect of group psychology.
This distinction should not be read as an invitation to make it open
season on teachers whenever a school has low test scores. It would have been a closer issue if the District had said it
was removing all three or four 5th grade teachers because of the
bad chemistry in the 5th grade, and even more so if it then
reassigned all but one of those teachers back to the same school.
Such a targeted move would come perilously close to eliminating the
distinction between addressing a group problem (which may not be any
individual group member’s fault) and an individual criticism.
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