2 –UNFAIR LABOR PRACTICE COMPLAINT

Attachment to Unfair Labor Practice Complaint

The Parties

1. Complainant Teamsters Local Union No. 223 (“Local 223”) is a labor organization asdefined in ORS 243.650(13). Local 223 is the exclusive representative of a bargaining unit of employees employed by the Lake District Hospital and Long Term Care Facility (“the Hospital”).

2. The Hospital is a public employer as defined in ORS 243.650(20).

3. Local 223 and the Hospital are parties to a collective bargaining agreement thatexpires December 31, 2017. A copy of the collective bargaining agreement is attached as Attachment 1.

The Hospital Refuses to Process Grievance and Submit Grievance to Mediation and Arbitration, as Required by the Grievance Procedure

4. Article 16 of the collective bargaining agreement establishes a dispute resolutionprocedure for processing grievances, beginning with an informal step that encourages employees “to discuss any work-related problem with management at any time.” (Attachment 1, Article 16). Article 16.2 provides, in part: “The following dispute resolution procedure is available to all bargaining unit employees, except that this Article does not apply to discharge of a probationary employee. The intention of the dispute resolution procedure is to ensure employees fair treatment and prompt resolution of disputes.”

5. Step 1 of the dispute resolution procedure calls for a discussion of “problems anddisputes” with the employee’s supervisor or designee. (Attachment 1, Article 16.2). Step 2 provides, in part: “If the employee and supervisor are unable to settle their differences, the employee or his or her representative should submit a written description of his/her complaint to the Administrator or designee, within 21 business days of the occurrence…The Administrator will conduct an investigation and meet with the employee and his/her representative within fourteen (14) business days to discuss the problem… The Administrator will issue a written decision within ten (10) business days after meeting.” (Attachment 1, Article 16.2).

6. Step 3 of the dispute resolution procedure calls for mediation by an EmploymentRelations Board mediator “[i]f the aggrieved is not satisfied with the disposition of the grievance at Step 2…” The only grievances the parties agreed to preclude from advancing to Step 3 are written reprimands which “… shall not progress beyond Step 2 and the Step 2 decision shall be final.” The dispute resolution procedure culminates in final and binding arbitration at Step 4. (Attachment 1, Article 16.2).

7. On March 8, 2017, Local 223 filed a written grievance with the Hospital on behalfof bargaining unit member “CC”1, pursuant to the grievance procedure in the collective bargaining agreement. (Attachment 2). The grievance alleges the Hospital violated Article 23

1 In order to protect the member’s identity, the grievant’s initials will be used throughout the Complaint.

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(Progressive Discipline and Discharge) by placing CC on unpaid administrative leave pending the outcome of an investigation by the Oregon State Board of Nursing (OSBN) into allegations that CC physically abused a resident.

8. Although the Hospital initially placed CC on administrative leave with pay, the

Hospital changed CC’s leave to administrative leave without pay on February 16, 2017. As a result, CC suffered a loss in pay and continues to suffer an ongoing loss of pay each day he remains on unpaid administrative leave.

9. As described in the grievance, the Hospital conducted its own investigation into

the abuse allegations and issued CC a written reprimand at the conclusion of its investigation. The grievance alleges that the Hospital’s decision to place CC on unpaid administrative leave pending the outcome of the OSBN investigation is a form of discipline that constitutes double jeopardy and violates the just cause provision in Article 23. The written grievance was filed at Step 2 of the grievance procedure after the parties had exhausted Step 1 of the grievance procedure (informal discussion).

10. On March 13, 2017, the Hospital denied the grievance at Step 2 stating the “grievance is misplaced and not allowed by the Labor Agreement.” (Attachment 3). The Hospital asserts that the decision to place CC on unpaid administrative leave is a management right and not subject to the grievance procedure.

11. Step 3 of the grievance procedure requires the parties to submit the grievance to

mediation. (Attachment 1, Article 16). On March 21, 2017, the parties submitted a joint request for mediation to the Employment Relations Board signed by Local 223 Representative Brent Jensen and Hospital Human Resources Director Lesley Hanson, pursuant to Step 3 of the grievance procedure. (Attachment 4).

12. On March 28, 2017, the Hospital’s legal counsel, Kristin Bremer Moore, notified the Employment Relations Board and Local 223 that the Hospital was refusing to submit the grievance to mediation. (Attachment 5). In her letter, Ms. Moore states that the Hospital will not submit the grievance to mediation because the Hospital’s decision to place CC on unpaid administrative leave is a management right that is not subject to the grievance procedure. Ms. Moore asked the Board to dismiss the request for mediation.

13. On March 31, 2017, the Employment Relations Board notified the parties that it is

not within the authority of the Board to dismiss requests for mediation or to resolve questions of grievability and/or arbitrability. (Attachment 6). Because both parties must consent to mediation, the Board could not proceed with scheduling mediation, as required by Step 3 of the grievance procedure.

14. On May 9, 2017, Local 223 notified the Hospital that it was submitting the grievance to arbitration pursuant to Step 4 of the grievance procedure. (Attachment 7).

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15. On May 19, 2017, the Hospital, through its legal counsel, refused to submit the grievance to arbitration. (Attachment 8). The Hospital asserts that it does not have to arbitrate the grievance because it believes its decision to place CC on unpaid leave is a management right.

The Hospital’s Refusal to Process the Grievance and Submit the Grievance to

Mediation and Arbitration is a Violation of ORS 243.672(1)(g)

16. The collective bargaining agreement contains a broad dispute resolution procedure. Article 16.2 provides, in relevant part, that the “dispute resolution procedure is available to all bargaining unit employees, except that this Article does not apply to discharge of a probationary employee. The intention of the dispute procedure is to ensure employees fair treatment and prompt resolution of disputes.” (Attachment 1, Article 16.2). The grievance procedure provides for mediation and then arbitration of grievances. (Attachment 1, Article 16.2).

17. ORS 243.672(1)(g) makes it an unfair labor practice for a public employer to

violate the provisions of any written contract with respect to employment relations, including an agreement to arbitrate.

18. The only type of dispute under the collective bargaining agreement that is

expressly excluded from the grievance procedure is the discharge of a probationary employee. (Attachment 1, Article 16.2). The grievance filed by Local 223 in this matter does not concern the discharge of a probationary employee. Rather, the grievance filed by Local 223 in this matter concerns whether the Hospital’s decision to move CC to unpaid leave while awaiting the results of the OSBN investigation and after already receiving a written reprimand is a form of discipline that constitutes double jeopardy, in violation of the just cause provision in Article 23.

19. Under this Board’s positive assurance test, the grievance, mediation and

arbitration clauses in Article 16.2 are susceptible to an interpretation that covers the grievance filed by Local 223. Because the grievance, mediation and arbitration provisions in Article 16.2 do not contain an “express exclusion” of CC’s grievance, the Hospital cannot overcome the presumption of arbitrability.

20. By refusing to process the grievance filed on behalf of CC, the Hospital violated

ORS 243.672(1)(g).

Request for a Civil Penalty and Posting of Notice 21. This Board has consistently held that an employer’s refusal to process or arbitrate

a grievance is contrary to the clearly established policies of the PECBA favoring arbitration. Recently, in Amalgamated Transit Union, Division 757 v. Tri-County Metropolitan Transportation District of Oregon, Case No. UP-022-16 (Recommended Order Issued May 2, 2017), ALJ Reading outlined relevant Board precedent:

“A refusal to process a grievance is, in essence, a refusal to arbitrate. The policies of the PECBA strongly favor settling labor disputes through

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arbitration. Marion County Law Enforcement Association v. Marion County, Case No. UP-24-08, 23 PECBR 671, 685 (2010). To further those policies, we require parties to arbitrate their contract disputes unless we can say with a positive assurance that the arbitration clause does not cover the asserted dispute. Portland Fire Fighters’ Association, Local 43 v. City of Portland, Case No. UP-58-99, 18 PECBR 723 (2000), rev’d and remanded, 181 Or App 85, 45 P3d 162 (2002), rev den, 334 Or 491, order on remand 20 PECBR 48A (2002). Therefore, in analyzing refusal-to-arbitrate complaints filed under ORS 243 672(1)(g), we use the positive assurance test. We adopted the positive assurance test in J.C. Luoto and Long Creek Education Association v. Long Creek School District, No. 17, Case No. UP-16-86, 9 PECBR 9314, (1987), aff'd, 89 Or App 34, 747 P2d 370 (1987), rev den, 305 Or 576 (1988). In that case, we explained that the emphasis in applying the positive assurance test is whether or not the arbitration clause is susceptible to an interpretation that covers the dispute. Id. at 9325. *** [T]he presumption of arbitrability can only be overcome by “an express exclusion of the grievance from arbitration or by other most forceful evidence of a purpose to exclude the claim from arbitration.” Oregon School Employee Association v. Camas Valley School District 21J, Case No. UP-59-86, 9 PECBR 9367, 9376 (1987).”

UP-022-16 at p. 6-7 (emphasis in original).

22. As described above, the obligation to process grievances is well-established by

this Board. Before filing this Complaint, legal counsel for Local 223 provided the Hospital’s legal counsel with a copy of the recent decision in Amalgamated Transit Union, Division 757 v. Tri-County Metropolitan Transportation District of Oregon, UP-022-16 (Recommended Order Issued May 2, 2017) – a recent case that is squarely on point and demonstrates that the Hospital is undoubtedly required to process the grievance in this matter.

23. Despite being provided with a recent decision that squarely addresses the

Hospital’s obligation to process the grievance, the Hospital continued its refusal to process CC’s grievance. As a result, the Hospital’s conduct was flagrant and egregious, and Local 223 is entitled to a civil penalty.

24. In addition, because the Hospital’s conduct was flagrant, impaired CC’s right to

have his grievance addressed, resulting in prolonged loss of pay and inequitable resolution, and significantly impacted Local 223’s ability to function as the exclusive representative of the bargaining unit, a posting of notice of the violation is warranted. Further, because the Hospital provides employer email addresses for all Local 223 members and routinely uses its email system to communicate with members about job-related matters, the notice should be distributed to all bargaining unit members electronically.

WHEREFORE, Local 223 requests an Order:

A. Finding that the Hospital violated ORS 243.672(1)(g);

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B. Requiring the Hospital to cease and desist from refusing to process CC’s

grievance and requiring the Hospital to immediately process the grievance and submit the grievance to mediation and arbitration, as required by the grievance procedure;

C. Requiring the Hospital to pay interest at the statutory rate on any economic

remedy issued should the matter proceed to arbitration and the Local prevail at arbitration; D. Requiring the Hospital to distribute notices of the violation by email to all Local

223 members via the Hospital’s e-mail system; E. Requiring the Hospital to pay a civil penalty to Local 223 because the violation

was flagrant; F. Reimbursing Local 223’s filing fee under OAR 115-035-0075(3); G. Awarding Local 223 its reasonable representation costs and attorney fees under

ORS 243.676(2)(d) and OAR 115-035-0055; and G. Awarding any other relief deemed just and equitable by the Board.

I certify that the statements in this complaint are true to the best of my knowledge and information.

By: /s/ Haley Rosenthal

Haley Rosenthal, Tedesco Law Group

Attorney for Complainant 6/12/17 Title Date