of Oregon Dept. of Corrections and Association of Oregon Employees
I. Procedural Background
This matter was heard on October 14, 1999, and submitted for decision on simultaneous post-hearing briefs on November 5, 1999. John Hoag appeared as attorney for the Petitioner Association (hereafter “Petitioner” or “Association”); Stephen D. Krohn, Assistant Attorney General, Labor & Employment Section, appeared for the Respondent Oregon Department of Corrections (hereafter “Respondent” or “Department”). Also present was Mary Overgaard, Human Resources Consultant for the Department. Testimony was taken from 4 witnesses; the Respondent submitted 23 exhibits in a tabbed binder. The Association submitted 8 exhibits, 4 of which (A-2, A-3, A-4, and A-7) duplicated Department Exhibits.
This dispute concerns interpretation of provisions in the parties’ collective bargaining agreement applicable to time off with pay by the Association’s president to meet with the Association’s attorney respecting grievance matters. The applicable sections of the agreement are as follows:
.. Article 4—Association Security
Association may select, and shall certify in writing to the Agency, employees to act as Association Representatives. Association representatives shall have authority to investigate and resolve grievances, and incidents involving potential grievances or unfair labor practices, and to distribute Association informational material, provided that such activity does not interfere with the regular work routine with prior approval of management, which shall not be unreasonably withheld. The investigation and processing of employee grievances will be permitted during working hours without loss of compensation…. (Italics added.)
Section 5—Association Business Leave.
B. Association President or the Association’s Representative shall be granted leave without loss of pay or benefits to attend to any of the following:
To investigate a potential grievance or unfair labor practice. (Italics
On March 5, 1999, the Association President, Gary Harkins, requested 8 hours leave with pay on March 10th, giving as the reason for the request:
“Attorney meetings & EE [employee] Disciplinary meetings.”
On the same date Harkins’ supervisor, Brian Belleque, Assistant Superintendent-Security, after conferring with the Department personnel office, denied Harkins’ request with the notation:
AOCE leave does not apply to meetings with attorney. Need more specifics or request other type of leave consideration. Additional note for clarification: Article 4 does not include Association leave for the President or Representative to meet with their attorneys. If you disagree, please discuss this with me when time allows. B. Belleque (illegible word) 2:45 p.m.
Harkins elected to forego the meeting with the Association’s attorney, at least on paid time, and on March 10th he reported for work on paid time.
Harkins testified that at a meeting with Belleque concerning this denial he told Belleque that the purpose of the leave request was to discuss with the Association’s attorney a “potential, not an actual grievance.” He believes that he did not tell Belleque the specifics of the matter he sought to discuss with the attorney. Belleque’s recollection of this exchange is that Harkins said nothing about investigation of a potential grievance as the purpose of Harkin’s proposed meeting with the attorney.
On March 17th, , on behalf of the Association and after consulting with the Association’s attorney, Harkins filed a Statement of Grievance which alleged that the denial of the March 5th leave request was a specific violation of those portions of Article 4, Sections 4 & 5 of the contract related to grievances. The narrative portion of Harkins’ Statement of Grievance asserted that in his meeting with Belleque,
I [Harkins] told him [Belleque] that I am allowed to investigate potential grievances … and part of the investigative process is consultation with the attorneys. Mr. Belleque did not agree. He stated that attorney meetings are not covered in the contract because it is not part of the processing of a grievance.
I find the preponderance of the evidence on this question of fact is that the general purpose of the leave request related to an existing or potential grievance and that this purpose was known to Belleque at the time he denied it.
Thus the precise issues in this arbitration are (1) whether a request by the Association President for time off with pay to meet with the Association’ attorney regarding an existing or potential grievance falls within the contract provision for such leave, to engage in “investigation or processing of employee grievances” (Art. 4, Sec. 4) and/or “to investigate a potential grievance…” (Art. 4, Sec. B.5.); and, (2) if so, what remedy is appropriate here when the employee has suffered no loss of pay of benefits as a result of the employer’s denial of the request?
Resolution of the first issue is a matter of contract interpretation. Throughout this matter the Department asserted several reasons in support of its denial of Harkins’ request. The Department’s response to Harkins’ Step 2 internal appeal to Superintendent Palmateer elicited a response that seems to acknowledge the Department’s understanding that the March 5th leave request involved a grievance investigation; but it took the position that Sections 4 and 5 of Article 4 only authorize paid leave for such a purpose if the investigation is on-site, whereas an attorney meeting off-site is outside the scope of those sections.
At the arbitration hearing the Department took a different position, arguing that since the contract does not explicitly specify meeting with the Association’s attorney among the allowed reasons for the President’s leave without loss of pay in connection with grievance matters, the contract must be interpreted to preclude such leave. Arguing that since the subject language was initially proposed by the Association, and the “proposed contract language does not reference the idea of attorney consultations and that is not an activity explicitly listed,” the Department argues that the language must be construed against the Association on this issue. (Employer’s Closing Brief, pp. 12-13) The Association, on the other hand, argues that a meeting with the Association’s attorney regarding a pending or potential grievance is integral to the “investigation or processing” of a grievance or a “potential grievance” under Article 4, Sections 4 and 5 and that it, like many other activities, is encompassed within the terms “investigation” and “processing.”
The parties’ bargaining history as it applies to these sections of the contract is of some help in resolving the issue. OCEA spun off from AFSME in 1993 and the Department’s first contract with OCEA was the result of interest arbitration before Arbitrator Roy E. Edwards over a 5 day period in November and December of 1993. The resulting contract covered the period 1993-1995.
In that interest arbitration, the principal dispute concerning paid time off to address grievance matters was whether more than one Association representative could have paid time to investigate a grievance or whether, as the Department proposed, such leave should be limited to one Association representative.
As for the scope of what would constitute investigation and processing of grievances, both the Association and the Department contemplated that Section 4 would apply only to existing grievances. The Association proposed for Section 4 the following language:
Representatives shall have authority to
investigate and resolve grievances … The investigation and processing of
employee grievances will be permitted during working hours without loss of
compensation. … (Italics added.)
The Department’s proposed language, apart from some minor terminology differences, was essentially the same with respect to the scope of grievance matters subject to paid time off:
Association stewards shall have authority to investigate and resolve grievances. One steward per grievance will be released during working hours without loss of compensation. (Italics added.)
With respect to Section 5, the Association proposed that the Association President or Representative be allowed leave without loss of pay or benefits, among other Association and grievance related activities, “To investigate a potential grievance…” The Department’s proposal did not address potential grievances as a subject the investigation of which would be permitted with paid time off.
Arbitrator Edwards, noting that this was the first contract between these parties and that there had been an acrimonious bargaining history between these parties, took special pains to try to clarify such disputed provisions. Accordingly, he not only rejected the Department’s “one steward per grievance” proposal he took the unusual step of introducing into Section 4 his own language, echoing in that section the OECA’s proposed language from Section 5 regarding potential grievances, so that Section 4 of the contract would now read:
Representatives shall have authority to investigate
and resolve grievances, and incidents
involving potential grievances… (Italics added.)
Arbitrator Edwards also adopted the Association’s proposal for Section 5 that authorized the Association President or Representative, without loss of pay or benefits, “To investigate a potential grievance…” These provisions were then incorporated into the 1993-95 contract.
The reasoning underlying Arbitrator Edwards’ decision on this issue is helpful. He concluded that—
“In most instances [the Association] cannot even know if a legitimate grievance … exists until it interviews complaining witnesses. These all involve representation rights of affected employees, and/or rights of AOCE under the PECBA. These are not matters of strictly union internal affairs…
The resulting language of these sections respecting paid leave to address existing and potential grievances carried over unchanged in the two subsequent contracts for 1996-97 and 1998-99. Both of these subsequent contracts were resolved by interest arbitration rather than by party agreement. The Association proposed no changes in the applicable language of Sections 4 and 5 during either of those interest arbitration proceedings. The Department sought in the 1995 interest arbitration to remove the reference to “potential” grievances in Section 4 but then withdrew that proposal. (Ex. A-8)
In the instant case the Department, in its response to both the Step 2 and Step 3 internal grievance appeals, invoked Arbitrator Edward’s 1993 decision to support its
position that Sections 4 and 5 are limited to on-site investigation of existing or potential grievances. (Exs. E-15, E-18) Superintendent Palmateer in response to Harkins’ Step 2 grievance statement, asserted that—
…the  Edwards interest arbitration …in essence allows for association representatives to use pre-authorized paid leave to conduct internal (i.e., onsite) investigations on grievances, discipline, and unfair labor practice complaints. (Ex. E-15)
Sections 4 and 5 on their face make no distinction respecting the location of a permitted grievance investigation. Arbitrator Edwards, in rejecting the Department’s position that paid leave for such a purpose should be limited to one Association steward, noted that security needs involving controlled movement within the Oregon Department Prison facility would unduly hamper an investigation if it were limited to one Association member. More importantly for resolution of this contract issue, he noted that by granting the right for paid leave for more than one Association representative to address a particular grievance, the provision would be more closely analogous to the prior AFSME contract which involved an “outside union” with “its own professional employees to perform some of the necessary investigations and grievance representation.” (Ex. E-4, p. 36).
The Department apparently seeks to read into the Edwards decision an implication that paid leave to investigate a grievance is restricted to on-site investigation and precludes paid off-site activity, including a meeting with the Association’s attorney, whose office is off-site. But it is not obvious that Arbitrator Edwards contemplated only on-site activity as coming within the scope of Sections 4 and 5. I find nothing in the Edwards opinion that implies such a limitation. (Ex. E-4, pp. 36-37)
During the subsequent years, Harkins on occasion did receive approval of paid leave for purposes that included meeting with the Association’s attorney. On December 9, 1998, Harkins’ request for 8 hours paid leave was approved for the stated reason: “Att[orney] Mtg, mtg with Gov. Standards & Practices Commission, Cook mtg?” (Ex. E-23, p. 2.) On November 11, 1998, his request for 8 hours paid leave was approved for the stated reason: “meetings with attorneys, Bales on his arbitration, Steve Bruce return, Robinson return w/D.A.S. [Department of Administrative Services] & personnel.” (Ex. E-23, p. 6.) On October 7, 1998, his request for 8 hours paid leave was approved for the stated reason: “Meeting with ATT[orney] & DAS. (Ex. E-23, p. 10.) On. September 2, 1998, his request for 8 hours paid leave was approved for the stated reason: “Meeting with attorney & Department – came up at last minute.” (Ex. E-23, p. 15). On July 6, 1998, his request for 8 hours paid leave was approved for the stated reason: “Meeting with attorney, Russ [?] Copeland for arbitration.” (Ex. E-23, p. 28.) On January 23, 1998, his request for 3 hours paid leave was approved for the stated reason: “Meet with attorney regarding upcoming arbitration.” (Ex. E-23, p. 47.)
Accordingly it is fair to conclude that Arbitrator Edwards’ expansive reading of the terms “investigate … incidents involving potential grievances” in Section 4 and “investigate a potential grievance” in Section 5 did not preclude some meetings with the Association attorney related to a pending or potential grievance and that the Association and the Department so understood this language.
Such a reading of these sections makes practical sense. As Arbitrator Edwards noted, a potential grievance may be nothing more than a complaint by an Association member. Whether it is a meritorious complaint, whether it is in the Association’s interest to pursue it, whether it involves a matter that in prior cases has proved to be meritorious or without merit, and whether it is supported by the contract or past usage--all are matters upon which the Association’s attorney’s views can be helpful, even determinative.
In the case of AOCE, the present attorney was involved in the interest arbitration of the first contract in 1993 before Arbitrator Edwards. His institutional knowledge of the meaning and purpose of the subject contract provisions would be a professional resource in investigating and evaluating a potential grievance, including weeding out those employee complaints that the Association should not pursue further. It is in the interest of both the Association and the Department for potential grievances to be screened at the outset to forestall complaints that are clearly without merit. The professional opinion of the Association’s attorney in this respect serves the purposes of these sections of the contract.
Finally, however, the Department contends that new language proposed by the Association in the current interest arbitration for the 2000-2001 contract demonstrates that the Association itself believes that attorney meetings are not within the scope of Section 5.B.4. The Association’s proposed new language for that section, dated March 16, 1999, makes explicit reference in Section 5.B.4. for leave without loss of pay or benefits “to consult with attorneys or other professional who are advising the Association on potential grievances or unfair labor practices.”
This proposal did not arise, however, until after the Department had denied Harkins’ March 5th request on the grounds that attorney meetings were not within the scope of that section. The inference the Department seeks to have drawn from the Association’s March 16th proposal must be rejected. Frequently parties on either side of contract negotiations propose new language to resolve ambiguities that only become apparent during disputes over the application of preceding contract language. To accept the Department’s argument in this respect would have the effect of constraining necessary bargaining flexibility by penalizing the Association for its effort to preclude further disputes over the scope of Section 5.B.4 by proposing clarifying language to the interest arbitrator.
It appears that until recently the Department understood the contract to permit paid leave to consult with the Association’s attorney in connection with pending or potential grievances. The narrow construction asserted by the Department in denying Harkins’ March 5, 1999 request appears to reflect a change in policy that is inconsistent with the parties’ prior understanding of the scope of Article 4, sections 4 and 5, and constituted a violation of those contract provisions.
Harkins suffered no loss of pay or benefits from this contract violation by the Department. Nor does it appear that any significant harm came to the Association. It was clear in the presentation of the evidence in this arbitration that Belleque’s denial of Harkins’ March 5th request was part of Departmental efforts to tighten up on what was perceived to have been too liberal a policy regarding paid time off by Association representatives.
Harkins’ requests for time off with pay during the term of the contract on many occasions requested a full 8-hour work day or a multiple of 8 hours. An issue that came up during this arbitration hearing had to do with the Department’s concern over such full-day requests and suggests that in the past the Department believed that Harkins may have been abusing the paid leave provision of the contract. There is no evidence one way or another to suggest such abuse; but the history of routine
requests for 8 hours leave with pay would put a responsible administrator on notice to look for abuse, especially in an era of increased budget constraints.
Accordingly I do not find that a monetary award from the Department to the Association or to Harkins is appropriate.
I find that on the first issue posed by this arbitration, the Respondent Department violated the contract in denying Harkins’ March 5, 1999, request for paid leave to meet with the Association’s attorney respecting investigation or processing of an existing or potential grievance.
The Department is not required to pay to Harkins or the Association any monetary award.
The Department is the “losing party” within the meaning of Article 44, Section 6 of the contract and is solely responsible for paying the arbitrator’s fees and expenses.
Dated: November 23, 1999
David E. Pesonen
 Citation to exhibits will be the Department’s exhibit identification number where the parties’ exhibits are duplicative.
 This arbitration proceeded under the 1997-99 contract, which had expired on June 30, 1999, but which contained an “evergreen clause” continuing its terms during subsequent negotiations. Article 2, Section 2. The parties advised me that interest arbitration for the next contract was to commence a few days after the hearing on this matter and would probably be concluded before the decision in this arbitration.
 The Department’s records available to Superintendent Palmateer at the time of her response to the First Level grievance review showed 37 leave requests by Harkins from October 1, 1998 to April 17, 1999, of which only 5 requested less than 8 hours time off. (Ex. E-15) Harkins’ personal file of such requests, produced at the time of the hearing in this matter, showed 51 leave requests in the period from December 5, 1997 through December 30, 1998, 36 of which were for 8 hours time off. (Ex. E-23)
 For example, Harkins’ leave request for 8 hours paid leave to attend this arbitration, while approved, bore the notation: “If arbitration ends prior to end of scheduled work assignment, you are to return to OSP and report to the OIC.” Ex. E-22. None of Harkins’ earlier leave requests contained such an admonition.
 The arbitrator’s itemized fees and expenses will be submitted under separate cover.