City of Portland v. Portland Fire Fighters' Assn.

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FILED: December 10, 2014 IN THE COURT OF APPEALS OF THE STATE OF OREGON CITY OF PORTLAND, Petitioner, v. PORTLAND FIRE FIGHTERS' ASSOCIATION, Respondent. Employment Relations Board UP1310 A153360 Argued and submitted on February 05, 2014. Harry Auerbach argued the cause and filed the briefs for petitioner. Barbara J. Diamond argued the cause for respondent. With her on the brief was Diamond Law. Before Ortega, Presiding Judge, and DeVore, Judge, and Schuman, Senior Judge. DEVORE, J. Affirmed. DESIGNATION OF PREVAILING PARTY AND AWARD OF COSTS Prevailing party: [X] [ ] [ ] Respondent No costs allowed. Costs allowed, payable by Costs allowed, to abide the outcome on remand, payable by 1 DEVORE, J. 2 The City of Portland (city) petitions for judicial review of a compliance 3 order issued by the Employment Relations Board (ERB). ERB ordered the city to 4 comply with an arbitration award and grant retirement and pension "service credit" to an 5 employee. In a related case issued today, Portland Fire Fighters' Association v. City of 6 Portland, ___ Or App ___, ___ P3d ___ (Dec 10, 2014), we affirmed ERB's order on a 7 complaint charging an unfair labor practice (ULP). That order required the city to 8 comply with the same arbitration award by compensating the employee for disability 9 benefits he had not received from the Fire and Police Disability and Retirement Fund 10 (fund). In this compliance proceeding, ERB determined that the arbitrator's "make- 11 whole" award required the city to grant service credit toward the employee's retirement 12 and pension during the period that he was not receiving disability benefits. The city 13 seeks judicial review of that order. We affirm. 14 The facts here supplement those recounted in the related case. 1 On January 15 21, 2010, an arbitrator upheld a grievance filed by the Portland Fire Fighters' Association 16 (association) on behalf of Tom Hurley, a disabled firefighter. The arbitrator found that 17 Hurley was discharged without just cause, ordered rescission of Hurley's discharge, and 18 required the city to compensate him for the amount of disability benefits that he lost 19 when the fund terminated those benefits. The city refused to uphold the latter part of the 1 The arbitration award and initial ERB proceedings are described in detail in Portland Fire Fighters' Assoc., ___ Or App at ___ (slip op at 2-9). 1 1 award, claiming that the arbitrator exceeded his authority in ordering the city to make 2 those payments. The association filed a ULP complaint. ERB upheld the award and 3 ordered the city to comply with it. We affirmed. 4 Following the association's initial grievance, Hurley returned to work as a 5 Low Hazard Inspector. In May 2012, he requested a pension estimate from the fund and 6 discovered that he had not earned service credit towards retirement during the three years 7 that his disability benefits were terminated. Under section 5-302 of the Portland City 8 Charter, a firefighter is given service credit for (1) periods of service during active 9 employment as a City of Portland firefighter, (2) periods of time in the military service of 10 the United States, if he or she returns to active duty as a firefighter, and (3) periods 11 during which the member receives disability benefits. Because the fund discontinued 12 Hurley's disability benefits on April 5, 2007, and Hurley did not return to work until 13 December 22, 2010, the city concluded that Hurley did not meet any of the criteria for 14 earning service credit during that time. He did not receive 1,358 days of service credit. 15 The association filed a motion with ERB under ORS 243.766(4), arguing 16 that the city had failed to comply with ERB's order on the ULP complaint involving the 17 arbitration award. The association requested that ERB initiate enforcement proceedings 18 in circuit court. 2 The city responded that Hurley was not eligible for service credit under 19 the criteria in the city charter and that it had no authority to order the fund to grant Hurley 2 Under ORS 243.766(4), ERB may "[p]etition the appropriate circuit court for enforcement of any order issued by the board pursuant to ORS 243.650 to 243.782." 2 1 service credit. The city contended that ERB and the arbitrator had not ordered the city to 2 rescind the fund's decision terminating Hurley's disability benefits nor ordered the city to 3 restore Hurley's retirement service credit. 4 ERB determined that the issue was not whether the fund must grant the 5 requisite service credit, but whether the city is responsible under the arbitrator's award to 6 treat Hurley as if he had earned service credit during that period of time. The arbitrator 7 had granted Hurley a make-whole remedy that required the city to treat Hurley, as the 8 arbitrator phrased it, "as though [Hurley] had been reinstated as a fund member and 9 entitled to receive disability benefits from the Fund." ERB concluded, "To fully 10 effectuate the arbitrator's remedy, the City must treat [Hurley] as if he had received 11 service credit * * *." 12 The city seeks judicial review of ERB's order. The city reprises its 13 arguments that it could not restore service credit through the fund and that it was not told 14 to do so. The city also repeats its argument from the related case that the arbitrator 15 exceeded his authority in fashioning the award. We rejected the latter argument in 16 Portland Fire Fighters' Assoc., ___ Or App at ___ (slip op at 11), and decline to address 17 it again here. For its part, the association interposes procedural objections to the city's 18 judicial review, which we reject without further discussion; ERB's compliance order is 19 subject to review under ORS 183.482. There are no disputed issues of fact that would 20 call for a review for substantial evidence. ORS 183.482(8)(c) (substantial evidence 21 standard). Therefore, we review the compliance order for substantial reason and errors of 3 1 law. See ORS 183.482(8); Portland Assn. Teachers v. Mult. Sch. Dist. No. 1, 171 Or App 2 616, 627, 16 P3d 1189 (2000) (examining the reasoning that leads ERB from the facts it 3 has found to the conclusions that it draws from those facts). 4 ERB is granted general authority under ORS 240.115 to "maintain such 5 action or proceeding at law or in equity as it considers necessary or appropriate to secure 6 compliance with this chapter and its rules and orders thereunder." The ERB's duties 7 under ORS 240.086(2) require it to review and enforce arbitration awards. Under ORS 8 243.676(2)(c), ERB may, upon finding that an unfair labor practice has occurred, "[t]ake 9 such affirmative action, * * * as necessary to effectuate the purposes of * * * [ORS] 10 243.650 to 243.782[, the Public Employee Collective Bargaining Act * * *][.]" 11 12 ERB issued the compliance order consistently with this record and ERB's statutory authority. The arbitrator's award provided, among other things, that 13 14 15 "[t]he City shall reverse the termination of Grievant's employment and reinstate whatever rights Grievant had as an employee before his termination." 16 (Emphasis added.) The arbitrator made plain that the remedy was intended as a "make- 17 whole" award. In construing that award, ERB permissibly interpreted the arbitrator's 18 award as including service credit to Hurley. ERB observed on reconsideration of the 19 arbitration award that "the arbitrator did not reinstate Hurley as a Fund member" but only 20 ordered the city to compensate him "as though [he] had been reinstated." We find 21 substantial reason and no error of law in that interpretation of the arbitration award. ERB 22 did not err. 4 1 Affirmed. 5

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