Title: State of Oregon (Corrections) and AFSCME
IN THE MATTER OF
FEDERATION OF STATE, )
OPINION AND AWARD
STATE OF OREGON,
SERVICES ON BEHALF
OF THE DEPARTMENT
OF CORRECTIONS, )
For the Employer:
Lory J. Kraut
Assistant Attorney General
Department of Justice
Loop, Suite 112
Labor and Employment Section
1162 Court Street NE
Salem, Oregon 97301-4096
American Federation of State, County and Municipal Employees (the Union) and
the State of Oregon, Department of Administration Services on behalf of the
Department of Corrections (the Employer) were parties to a collective
bargaining agreement that provided for shift and days-off bidding for covered
employees. When Kevin Jackson, a sergeant at the Snake River
Correctional Institution, became president of the local Union, he challenged
the way the bidding process was being conducted by filing a grievance alleging
management had violated the agreement. The
matter came for hearing pursuant to the 1994-1999 agreement. The hearing was considered closed on March 27, 2001, the date
post-hearing briefs were received.
parties agreed that the substantive issue in dispute is whether the Employer
violated Article 25 of the collective bargaining agreement and the 1995 letter
of agreement when it conducted its June 1999, shift and days-off bidding at
Snake River Correctional Institution. If
so, what is the remedy? The
Employer raised a procedural arbitrability issue.
following provisions of the collective bargaining agreement are relevant to
the issue in dispute:
I – SCOPE OF AGREEMENT
contract incorporates the sole and complete Agreement between the Agency and
the Union resulting from negotiations held pursuant to the provisions of the
ORS 243.650 et. seq. and supersedes all prior labor contracts.
It is acknowledged that during negotiations which resulted in this
Agreement, each party had the unlimited right and opportunity to make demands
and proposals with respect to any subject or matter appropriate for 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 the
Agreement. It shall not be
modified in whole or in part except by another written instrument duly
executed by the parties.
4 – UNION/MANAGEMENT MEETINGS
3. Scope of Authority
will be held for purpose of discussion only.
This committee will not enter into a binding agreement of any sort. Contractual type negotiations, attempts to resolve individual
grievances, or similar matters must be handled in the manner provided within
the Contract and will not be proper subject matter for such meeting.
10 – MANAGEMENT RIGHTS
Union agrees that the Employer retains all inherent rights of management and
hereby recognizes the sole and exclusive right of the State of Oregon, as the
Employer, to operate and manage its affairs in accordance with its
responsibilities to maintain efficient governmental operations.
The Employer retains all rights to direct the work of its employees,
including, but not limited to, the right to hire, promote, assign, transfer,
demote, suspend, or discharge employees for proper cause; to schedule work;
determine the processes for accomplishing work; to relieve employees from
duties because of lack of work or for other legitimate reasons; to take action
as necessary to carry out the missions of the State; or determine the methods,
means and personnel by which operations are to be carried on, except as
modified or circumscribed by the terms of this Agreement.
The retention of these rights does not preclude any employee from
filing a grievance pursuant to Article 51, Grievance and Arbitration
Procedure, or seeking a review of the exercise of these rights, when it is
alleged such exercise violates provisions of this Agreement.
10 – SHIFT BIDDING PROCEDURE BY INSTITUTION
. . .
River Correctional Institution
Work Schedule Bidding.
Each security staff member may submit their (sic) bid for a shift and
days off work schedule following the posting of the work schedule by the
Security Manager. Employees shall
have ten (10) working days following the posting of the work schedule to make
their bid selections. The
Employer will post the work schedule for bidding twenty-five (25) calendar
days prior to the rotation date.
staff may submit three (3) selections. Such
selections must be submitted in priority order.
Officers who have completed trial service may bid shifts and days off
in order of seniority as defined in Section 9 of this Article. Security staff hired in between bid periods will be assigned
by the Security Manager.
parties agree that the intent of this section is to provide as many work and
training opportunities as possible for all security staff regardless of
seniority while recognizing the importance of seniority and the individual
choices of staff.
staff will bid every six (6) months for rotation effective the first Sunday of
February and August
51 – GRIEVANCE AND ARBITRATION
2. If the issue is
unresolved, the Union will submit a written grievance containing the date of
occurrence, the act or omission that created the grievance, the section
violated, and the remedy desired within thirty (30) days of the alleged
occurrence. Where the issue is
not settled at step 1, the Union shall submit the grievance to the functional
unit manager within thirty (30) days of the alleged occurrence.
The Manager response shall be due in writing within fifteen (15)
calendar days of receipt of the appeal.
3. If the grievance is not
resolved at Step 2, the Union shall submit the grievance to the Director or
designee, within fifteen (15) calendar days from the receipt of the response
at step 2(b). The Director or
designee shall respond in writing within fifteen (15) calendar days from the
receipt of the appeal.
4. If the grievance is not
resolved by the Agency, the Union shall notify the Labor Relations divisions
of the Department of Administrative Services within fifteen (15) calendar
days of receipt of the Agency response that such response is not
acceptable. A meeting will be
held between the parties to mutually share information about the grievance.
The parties shall fully disclose their respective positions and all
supporting evidence. All
potential resolutions shall be discussed in this meeting and shall be
non-prejudicial to the parties if arbitration occurs.
The meeting shall occur within thirty (30) days of the Union’s
notice, unless otherwise agreed to in writing.
5. If the grievance is not
resolved at the Labor Relations Division within thirty (30) days of the step 4
notice or as otherwise mutually agreed to in writing, the Union shall notify
the Department of Administrative Services that is (sic) desires arbitration of
limits specified in this procedure must be observed unless either party
requests a specific extension of time which, if agreed to, shall be stipulated
in writing and shall become part of the grievance record.
If management fails to issue a response within the time limits set
forth in this Article, the grievance may be advanced to the next step of the
Sgt. Jackson became president of the local Union on an interim basis in June
of 1999, the parties operated on an informal basis with respect to strict
adherence to the provision in the agreement that required any modification to
it be reduced to writing. Prior
to the time he became president, management and the local Union made informal
changes in working conditions despite the language in the agreement to the
contrary. One such change was to
the rotation dates after the shift and days-off bidding process was completed.
in approximately 1994, the Employer began separating out from the general
bidding process the special housing units.
Instead of a general bidding process whereby all shifts and days off
for all positions in the bargaining unit were open to bid by employees in
accordance with their overall seniority, the Employer made up different bid
lists for special units. The
process was referred to as exempt bidding.
1995, the parties entered into a formal letter of agreement that permitted the
Employer to assign employees to the Minimum Facility for 12 to 18 month
rotations as opposed to the six-month rotation required by the agreement for
other bids. The assignment was accomplished by placing an asterisk on the
general bid work schedules beside the shift and days off for the Minimum
Facility. If an employee bid
those shifts and days-off and was accepted, he knew he would be assigned to
the Minimum Facility for 18 months the first time and 12 moths thereafter.
March of 1998, Frank Vehafric, a representative for the Union, and Employer
representatives negotiated to formally modify the bidding process for the
special units. The parties agreed
to a process and Mr. Vehafric was to draft the actual language so that the
approval of the individuals who had the authority to modify the collective
bargaining agreement could be sought. Mr.
Vehafric left in April of 1999. His
successor did not take over until June.
shift and days-off bidding began in the summer of 1999, Sgt. Jackson saw that
the special housing units had been separated from the general population,
creating four seniority lists. The
bid was scheduled for a July first rotation or effective date.
Sgt. Jackson did not immediately file a grievance because he believed
the letter of agreement that was to have
been negotiated and approved in 1998 was in
effect prior to the time he became president. Sgt.
Jackson had spoken to several management officials who told him the
letter of agreement existed. The
1999 summer bid was finalized on June 9, 1999.
he became president, Sgt. Jackson asked several management officials about the
letter of agreement, trying to obtain a copy.
During a labor/management committee meeting on June 28, 1999, Sgt.
Jackson again inquired about the letter of agreement.
Assistant Superintendent Ward told him it existed and left the meeting
to find it. He returned later and
said it did not exist, it was something that had been agreed to, but it was
not reduced to writing. Sgt.
Jackson pointed out that the collective bargaining agreement prohibited
binding agreements made at labor/management committee meetings that modified
the agreement. He informed the
committee that the recent bid should be redone so that all employees could
exercise their seniority to the fullest extent possible under the collective
bargaining agreement. Sgt. Jackson maintained that some employees could have
had a Saturday or Sunday off or certain other desirable shifts and days off
they may have wanted if the bidding had been done in accordance with the
collective bargaining agreement.
representatives called Mark Hunt, Labor Relations Manager for the Department
of Administrative Services, who told them no letter of agreement was ever
discussed with him. Mr. Hunt had
to approve any agreement that modified the collective bargaining agreement.
He had approved the 1995 letter of agreement. Mr. Hunt said that
although no letter of agreement existed, there had been a long-standing
practice of exempt bidding and it could continue.
Sgt. Jackson filed a grievance on July 26, 1999, charging that the
exempt bidding process at the institution was in violation of the collective
bargaining agreement and the 1995 letter of agreement.
The violation of the letter of agreement was alleged to be violated by
the exempt bidding process because the Minimum Facility was changed to an
exempt post where employees were accepted and put on a short list of
seniority, meaning only certain employees who were accepted were able to bid
at that facility. The Minimum Facility was removed from the general bid and
separated from it.
exempt bidding Sgt. Jackson did not have full opportunity to bid on shifts and
days off as he would have had under general bidding.
Sgt. Jackson filed the grievance, the Union processed it through steps 2, 3
and 4 of the grievance procedure. The
Employer did not respond at any of the steps.
On May 16, 2000, Mark Hunt wrote a letter to Gary Lewis saying the
Employer would challenge the arbitrability of Sgt. Jackson’s grievance
because arbitration was not requested in a timely fashion.
On September 15, 2000, Gary Lewis, Union representative for AFSCME,
sent Mark Hunt a memorandum detailing the status of a number of pending
arbitrations that Mr. Lewis had with the Employer, including the grievance at
issue here. Mr. Lewis also met with Mr. Hunt a number of other times
prior to September 15. At no time
did Mr. Hunt say he would contest the arbitrability of grievances. Neither the Union nor the Employer attempted to set up a
meeting pursuant to Step 4 of the grievance procedure.
OF THE POSITION OF THE UNION
the merits, the Union contends that the Employer violated Article 25 of the
agreement and the 1995 letter of agreement.
It also contends the initial filing of the grievance was timely, as was
the request for arbitration.
to the timeliness of the initial filing, the Union maintains that the
Employer’s failure to raise the issue before the arbitration hearing
prevents it from doing so now. Moreover, the Union argues, even if the timeliness issue had
been properly raised, the grievance must be viewed as timely filed.
Sgt. Jackson had recently become president of the local and only
discovered the Employer was violating the contract on June 28, 1999 when
management finally conceded there was no recent letter of agreement that
modified the language of the contract.
request for arbitration was timely the Union contends.
The Union filed the grievance at Step 4 on November 23, 1999.
According to Arbitrator Snow’s interpretation
of Article 51 of the contract, both sides where responsible for scheduling a
meeting within thirty days. A
request for arbitration must be made within thirty days of the meeting.
The parties did not meet until February 1, 2000.
The Union’s February 17th request fell within the time
Union asserts that three arbitrators have recently ruled that the grievance
procedure in question here does not create the kind of forfeiture urged by the
Employer. Arbitrator Snow held
that when both parties take liberty with contractual time lines, it would be
unfair to punish only one for failure to comply strictly.
The Employer made no response at levels 2, 3, and 4.
Arbitrator Dorsey ruled that the Employer had a practice of waiving
compliance and had, therefore, not strictly complied with the contract in its
handling of grievances. The
Union, in that case, could not be fairly held to strict compliance.
The grievance Arbitrator Dorsey ruled on was being processed at the
same time as the grievance here and
they both were contained in the May 16, 2000 letter from Mr. Hunt to Mr. Lewis
wherein Mr. Hunt challenged the arbitrability of each.
Any delay in proceeding to arbitration in the present case was the
result of a mutual agreement to discuss the grievance and reach a resolution
about the arbitration.
the merits, the Union maintains that shifts and days-off bidding had been done
in the past by using one seniority list for each rank.
Under the changed system, an employee had to first decide whether to
apply for one of the special units. If
accepted into one of those units, the employee was placed on a seniority list
that contained only the names of other employees who had been accepted into
that unit. Such a system serves
to the advantage of some employees who have less seniority, and it hurts some
employees with more seniority. That
system violates the contract and past practice because bidding is no longer
based solely on overall seniority, a situation that was not contemplated by
the contract. The Employer also
violated the contract when it changed the rotation dates from August to July. While that may have been a desirable change, there was no
reason it could not have been bargained with the Union.
the Employer’s argument that as long as bidding is by seniority, it may make
any changes it desires to the process, the Union argues that the Employer has
recently acquired that opinion. Prior
to its failure to find a written document permitting it to engage in exempt
bidding, the Employer believed it required bargaining with the Union before
exempt bidding could be done. The
Employer did not then assert it had the unilateral right to change the bidding
process. That fact is evidenced, the Union believes, by the fact the
Employer reverted to the practice of bidding by seniority once the Union
protested. Moreover, the Union
asserts, there is a 1995 letter of agreement for bidding the Minimum Facility
which is evidence that the Employer believed a modification of the contract
was required before it could change the bidding process.
If such a small change in the bidding process required a letter of
agreement, a broad change that changed bidding from strictly a seniority
process requires as much. The
Union’s view is that the
parties had a long-standing past practice of using one seniority list.
That practice was changed for a short time, but it was dropped when the
the Union views it, the Employer also violated the 1995 letter of agreement
that allowed the Employer to specify which shifts and days-off would be
assigned to the Minimum Facility. It
did not, however, change the basic process of bidding by seniority.
While the letter permitted a convenient arrangement for employees to
get into a Minimum Facility post, the employee could, while bidding, change
his mind if he found the available shifts and days off in the Minimum Facility
to be unacceptable. The
Employer’s change to exempt bidding took away that option.
OF THE POSITION OF THE EMPLOYER
Employer contends the grievance was not timely filed.
On the merits, the Employer argues that exempt bidding was the
long-standing practice at the institution, therefore, the Employer did not
need the Union’s approval to continue it for the July 1999 bid.
In any event, the Union agreed to exempt bidding and cannot now claim
that the Employer cannot rely on its verbal agreement.
Union, according to the Employer’s reasoning, asserts estoppel in trying to
preserve the timeliness of the grievance and then tries to use estoppel to
prevent the Employer from relying on its oral agreement with the Union to
continue exempt bidding. The
Union claims that management misled Sgt. Jackson by telling him a written
letter of agreement existed that permitted exempt bidding.
Exempt bidding continued from at least 1994 through 1995.
The parties verbally agreed in 1998 to continue exempt bidding and the
Union’s representative was to reduce the agreement to writing.
He failed to do so. The
Employer argues further that despite contract language requiring all variances
to it be in writing and executed by authorized representatives of each side,
management of the institution and representatives of the local Union had in
the past negotiated changes in working conditions based on verbal agreements.
While Sgt. Jackson may not have liked such informality, he cannot
change it without giving the Employer adequate notice.
position of the Employer is that exempt bidding existed at the institution
since at least 1994. When
negotiating the 1994-1999 contract, the parties did not discuss prohibiting
exempt bidding. The contract expressly retained existing practices related to
mandatory bargaining subjects unless modified or deleted elsewhere in the
Sgt. Jackson became president of the local Union, the parties rarely insisted
on strict adherence to Article 1, section 1 of the contract, they operated
very informally with “handshake deals” being the norm.
One of those informal deals was the one that occurred in March of 1998,
when the parties agreed to continue exempt bidding for separate housing units. The Union was supposed to reduce the agreement to writing.
Management continued to do exempt bidding based on the verbal
agreement. It was not until June
28, 1999, that anyone from the Union complained about the process.
Employer maintains that the contract has strict time lines for filing
grievances. Written grievances
must be submitted within thirty days of the alleged
occurrence. Exempt bidding
was the normal practice when Sgt. Jackson came to the institution in 1997 and
it continued through the 1999 bid. Sgt.
Jackson was aware of the process before
1999 because he bid his shift and days off since 1997.
Sgt. Jackson’s testimony regarding his delay in filing a grievance is
suspect. The better evidence is
that the Union was responsible for drafting the letter of agreement that Sgt.
Jackson said he believed existed. It
was not the Employer who mislead him and he should not be able to rely on that
proposition. The Employer
preserved the issue of arbitrability when Mark Hunt notified Gary Lewis that
Sgt. Jackson’s grievance was not timely filed.
the Employer views it, exempt bidding does not violate the contract.
Under the management rights provision of the contract, the Employer
retains broad discretion to determine the methods, means, and personnel by
which its operations are run, except as modified by the contract.
Article 25 imposes few restrictions on the shift-bidding process
itself, none of which is inconsistent with exempt bidding.
The Employer was not required to obtain the Union’s consent to
continue exempt bidding. Moreover,
the Employer argues, the Union failed to show any concrete harm caused by the
1995 letter of agreement was not violated by the continuation of exempt
bidding, the Employer maintains. Since
the parties did not intend for it to change the bid process, exempt bidding
could not constitute a violation.
parties had an oral agreement that allowed exempt bidding and the Union is
estopped from denying it, the Employer holds.
Even if the contract required the Union’s consent to continue exempt
bidding, the Employer obtained that consent through the “handshake”
agreement the parties reached. Although
Article 1, section 4 requires that contract modification be in writing, the
parties repeatedly modified the contract without reducing anything to writing.
Given the informality with which the Employer had dealt with the local
Union in the past, the Employer justifiably relied on the oral agreement to
continue exempt bidding. The
Union knew of, and acquiesced in the process for years.
The Union was required to give the Employer notice of its intent to
change the practices before it filed its grievance.
Employer contends the arbitrator lacks authority to award the relief requested
by the Union. The arbitrator has no authority to compel the Employer to
reach agreement with the Union on exempt bidding.
The only potential remedy is a cease and desists order, which is moot
because the Employer discontinued exempt bidding when the Union objected.
Employer argues that the initial filing of the grievance was untimely and
therefore, it is not arbitratible. The
contract requires that written grievances be submitted to the unit manager
within thirty days of the alleged occurrence.
There is a dispute between the parties over when Sgt. Jackson knew the
Employer was conducting the shifts and days-off bidding process contrary to
what he believed the contract required. Prior
to the time he became interim president of the local Union, it is not clear
when he knew or should have known about the exempt bidding process.
After he became president, however, it is clear he found out that the
Employer had been conducting exempt bidding without there being a written
agreement permitting it to do so on June 28, 1999, at the union/management
meeting. Until that time he had
been told by numerous individuals from both sides that a letter of agreement
existed that allowed exempt bidding to be done by the Employer.
Since he filed the grievance on July 26, 1999, the 30-day time line had
if it could be reasonably concluded that Sgt. Jackson knew or should have
known about the Employer’s practice of conducting exempt bidding from the
time he began his employment at the institution, the Employer’s argument
that the grievance was not timely flied must be rejected.
The Employer remained silent at all the steps in the grievance process
and did not challenge the timeliness of the filing.
At step four, Mark Hunt informed the Union that the Employer would
challenge any request for arbitration, but that challenge was pursuant to
Article 51, section 2, step 4 and section 6, of the contract.
The challenge was not, even
at that late date, to the original filing pursuant to step 2 of the grievance
procedure. The general rule is
that if the party that challenges the arbitrability of a grievance does not do
so at the start of the process, the party is held to have waived its right to
Employer offered evidence, in the form of a letter dated May 16, 2000, from
Mark Hunt to Gary Lewis, to show that the Union did not request arbitration in
a timely manner pursuant to step four of the grievance procedure.
The Union filed at step four on November 23, 1999.
At that step, the contract requires that a meeting be held between the
parties to share information about the grievance. The contract does not state who has the responsibility for
scheduling the meeting. Arbitrator
Snow in, State of Oregon and AFSCME Local 3940, June 2000, held that it
is reasonable to conclude that the responsibility for scheduling the meeting
fell on both parties. He
concluded further that since both parties failed to follow through, it would
not be reasonable to work a forfeiture on either.
the merits, both parties argue that principles of past practice support their
respective positions. The
Employer contends the practice of preparing and using separate bidding sheets
for each of the special housing units has been done since at least 1994, and
the Union acquiesced in the practice until Sgt. Jackson protested in June of
1999. Prior to that time, the
Union did not object to the manner in which the bidding process was conducted.
The Employer notes that the parties even agreed to formally modify the
collective bargaining agreement in 1998, when they verbally agreed to draft a
letter of agreement. The letter was never drafted and executed.
Union maintains there was a long-standing practice of conducting the bidding
strictly based on seniority as the contract contemplates, that is to say, with
one master seniority list. The
Union acknowledges there was an exception to that practice in 1998.
Both acknowledge that the 1995 letter of agreement made significant
exceptions to the contractually required bidding procedure.
Employer called two witnesses who testified that the
practice of exempt-bidding had existed at the institution since 1994.
No documentary evidence was offered to substantiate that testimony.
Employer’s evidence and argument on the question of the exempt bidding
practice is more persuasive than that of the Union.
The Employer’s witnesses were working at the institution at the time
of the occurrences and had personal knowledge of how the bidding was conduced.
The Union did not call its former representative, who was present at
the time in question, to rebut the Employer’s witnesses’ testimony.
however, that the Employer had a practice of exempt bidding as far back as
1994, is not where the analysis ends. The
meaning of Article 25, section 10 of the contract is clear and unambiguous. It is not necessary to go outside the contract to ascertain
the meaning of that provision. In
addition to imposing other conditions on management’s ability to conduct the
shift-bidding process, the provision gives officers who have completed trial
service the right to bid shifts and days off in order of seniority.
Seniority is defined elsewhere in the contract as
time in class in the bargaining unit.
When bidding is conducted by exempting the special housing units, it
violates the provision because bidding is no longer based solely on seniority
in the bargaining unit. It is based on the special housing unit and the seniority of
the employee bidding as compared to others bidding for that unit.
The exempt method of bidding requires employees to commit to which unit
they will work in before seeing what shifts and days off are available in that
unit. Under the exempt method,
some employees in the bargaining unit are not permitted to exercise their
seniority in the overall bargaining unit to the fullest extent possible.
Using more than one seniority list allows some employees to bid out of
bidding also violated the 1995 letter of agreement because employees were
accepted and put on a short list of seniority, only certain employees who were
accepted were able to bid at the Minimum Facility.
The letter of the agreement did not change the basic principle that
bidding be by overall seniority.
past practice cannot be used to change the clear meaning of contract language,
particularly when the practice is not of such a long-standing nature as to
have spanned a number of collective bargaining negotiations and agreements, it
can be used to determine the appropriate remedy.
Moreover, the general rule regarding past practices where the contract
contains a zipper clause, as here, is that the practice cannot be used to
change contract language when such language is clear and unambiguous.
was a practice of exempting the special housing units from the general
population bidding at the institution. That
practice, however, cannot be used to alter the clear language of the contract
that requires bidding from one master seniority list of all bargaining unit
employees. The Union’s rights under Article 25 remained the same as
they were before the practice began, the verbal agreement to try to formally
change the process notwithstanding. The
verbal agreement itself could not modify the contract because that required
approval from higher authority. Since the Union did not challenge the practice
until June 1999, it was precluded from enforcing its rights until it gave the
Employer notice of its intention to do so, which was June 28, 1999.
The appropriate remedy would be a cease and desist order, however, the
Employer stopped exempt bidding in July of 1999, making such an order moot.
grievance is sustained. Accordingly,
I will enter an award.
grievance is arbitratible. The
Employer violated Article 25 of the collective bargaining agreement and the 1995
letter of agreement. The grievance
is sustained. The losing party is
this ____ day of April 2001.