ORS 243.706
Agreement may provide for grievance and other disputes to be resolved by binding arbitration or other resolution process

powers of arbitrator

Text
Annotations 5

(1)

A public employer may enter into a written agreement with the exclusive representative of an appropriate bargaining unit setting forth a grievance procedure culminating in binding arbitration or any other dispute resolution process agreed to by the parties. As a condition of enforceability, any arbitration award that orders the reinstatement of a public employee or otherwise relieves the public employee of responsibility for misconduct shall comply with public policy requirements as clearly defined in statutes or judicial decisions including but not limited to policies respecting sexual harassment or sexual misconduct, unjustified and egregious use of physical or deadly force and serious criminal misconduct, related to work. In addition, with respect to claims that a grievant should be reinstated or otherwise relieved of responsibility for misconduct based upon the public employer’s alleged previous differential treatment of employees for the same or similar conduct, the arbitration award must conform to the following principles:

(a)

Some misconduct is so egregious that no employee can reasonably rely on past treatment for similar offenses as a justification or defense to discharge or other discipline.

(b)

Public managers have a right to change disciplinary policies at any time, notwithstanding prior practices, if such managers give reasonable advance notice to affected employees and the change does not otherwise violate a collective bargaining agreement.

(2)

In addition to subsection (1) of this section, a public employer may enter into a written agreement with the exclusive representative of its employees providing that a labor dispute over conditions and terms of a contract may be resolved through binding arbitration.

(3)

(4)

In an arbitration proceeding under this section, the arbitrators, or a majority of the arbitrators, may:

(a)

Issue subpoenas on their own motion or at the request of a party to the proceeding to:

(A)

Compel the attendance of a witness properly served by either party; and

(B)

Require from either party the production of books, papers and documents the arbitrators find are relevant to the proceeding;

(b)

Administer oaths or affirmations to witnesses; and

(c)

Adjourn a hearing from day to day, or for a longer time, and from place to place.

(5)

The arbitrators shall promptly provide a copy of a subpoena issued under this section to each party to the arbitration proceeding.

(6)

The arbitrators issuing a subpoena under this section may rule on objections to the issuance of the subpoena.

(7)

If a person fails to comply with a subpoena issued under this section or if a witness refuses to testify on a matter on which the witness may be lawfully questioned, the party who requested the subpoena or seeks the testimony may apply to the arbitrators for an order authorizing the party to apply to the circuit court of any county to enforce the subpoena or compel the testimony. On the application of the attorney of record for the party or on the application of the arbitrators, or a majority of the arbitrators, the court may require the person or witness to show cause why the person or witness should not be punished for contempt of court to the same extent and purpose as if the proceedings were pending before the court.

(8)

Witnesses appearing pursuant to subpoena, other than parties or officers or employees of the public employer, shall receive fees and mileage as prescribed by law for witnesses in ORS 44.415 (Fees and mileage of witnesses) (2).

(9)

As used in this section:

(a)

“Discipline guide” means a grid that is designed to provide parameters for the level of discipline to be imposed for an act of misconduct that is categorized by the severity of the misconduct and that take into account the presumptive level of discipline for the misconduct and any aggravating or mitigating factors.

(b)

“Discipline matrix” means a grid used to determine the level of discipline to be imposed for an act of misconduct that is categorized by the severity of the misconduct, according to the intersection where the category of misconduct and the level of disciplinary action meet. [1973 c.536 §12; 1995 c.286 §5; 1999 c.75 §1; 2020 s.s.1 c.18 §1]

Note: The amendments to 243.706 (Agreement may provide for grievance and other disputes to be resolved by binding arbitration or other resolution process) by section 7, chapter 541, Oregon Laws 2021, become operative not later than November 1, 2022. See sections 4 (4) [243.812 (Commission on Statewide Law Enforcement Standards of Conduct and Discipline) (4)] and 11, chapter 541, Oregon Laws 2021. The text that becomes operative not later than November 1, 2022, is set forth for the user’s convenience.

243.706 (Agreement may provide for grievance and other disputes to be resolved by binding arbitration or other resolution process). (1) A public employer may enter into a written agreement with the exclusive representative of an appropriate bargaining unit setting forth a grievance procedure culminating in binding arbitration or any other dispute resolution process agreed to by the parties. As a condition of enforceability, any arbitration award that orders the reinstatement of a public employee or otherwise relieves the public employee of responsibility for misconduct shall comply with public policy requirements as clearly defined in statutes or judicial decisions including but not limited to policies respecting sexual harassment or sexual misconduct, unjustified and egregious use of physical or deadly force and serious criminal misconduct, related to work. In addition, with respect to claims that a grievant should be reinstated or otherwise relieved of responsibility for misconduct based upon the public employer’s alleged previous differential treatment of employees for the same or similar conduct, the arbitration award must conform to the following principles:

(a)

Some misconduct is so egregious that no employee can reasonably rely on past treatment for similar offenses as a justification or defense to discharge or other discipline.

(b)

(2)

(3)

Notwithstanding subsection (1) of this section, when an arbitration proceeding involves alleged misconduct by a sworn law enforcement officer of any law enforcement agency, as those terms are defined in ORS 131.930 (Definitions), and the arbitrator makes a finding that misconduct has occurred consistent with the law enforcement agency’s finding of misconduct or, if applicable, consistent with a finding of misconduct by a civilian or community oversight board, agency or review body, the arbitration award may not order any disciplinary action that differs from the disciplinary action imposed by the law enforcement agency or the civilian or community oversight board, agency or review body, if the disciplinary action imposed by the law enforcement agency, or the civilian or community oversight board, agency or review body was in accordance with the uniform standards adopted by the Commission on Statewide Law Enforcement Standards of Conduct and Discipline established under ORS 243.812 (Commission on Statewide Law Enforcement Standards of Conduct and Discipline).

(4)

In an arbitration proceeding under this section, the arbitrators, or a majority of the arbitrators, may:

(a)

Issue subpoenas on their own motion or at the request of a party to the proceeding to:

(A)

Compel the attendance of a witness properly served by either party; and

(B)

Require from either party the production of books, papers and documents the arbitrators find are relevant to the proceeding;

(b)

Administer oaths or affirmations to witnesses; and

(c)

Adjourn a hearing from day to day, or for a longer time, and from place to place.

(5)

The arbitrators shall promptly provide a copy of a subpoena issued under this section to each party to the arbitration proceeding.

(6)

The arbitrators issuing a subpoena under this section may rule on objections to the issuance of the subpoena.

(7)

(8)

(9)

As used in this section, “civilian or community oversight board, agency or review body” means a board, an agency or a body:

(a)

Designated by a municipality or a law enforcement agency in performing duties related to investigating allegations of officer misconduct or reviewing police policies and practices; or

(b)

Created to oversee disciplinary matters concerning law enforcement officers pursuant to a city charter or ordinance for which a measure that included the question of whether to establish the board, agency or body was referred to and approved by the people of the city at an election held on or after July 1, 2020.

Source: Section 243.706 — Agreement may provide for grievance and other disputes to be resolved by binding arbitration or other resolution process; powers of arbitrator, https://www.oregonlegislature.gov/bills_laws/ors/ors243.html.

Notes of Decisions

Where collective bargaining contract between union and county contained mandatory grievance procedures, ERB was without authority to interpret contract without requiring that parties bring matter to arbitration. AFSCME v. Lane County Commissioners, 45 Or App 161, 607 P2d 1212 (1980), Sup Ct review denied, on reconsideration 46 Or App 645, 612 P2d 759 (1980)

Findings made by arbitrator that are beyond scope of collective bargaining agreement are not part of arbitration “award.” Deschutes County Sheriff’s Association v. Deschutes County, 169 Or App 445, 9 P3d 742 (2000), Sup Ct review denied

Proper inquiry in determining whether employer may decline to enforce arbitration award on public policy grounds is whether award itself contravenes public policy, not whether underlying conduct of employee violates public policy. Salem-Keizer Association of Classified Employees v. Salem-Keizer School District 24J, 186 Or App 19, 61 P3d 970 (2003)

Where police officer used deadly force, police department discharged officer from employment and arbitrator found that officer’s use of deadly force was not misconduct and ordered department to reinstate officer, this section’s public-policy exception to enforceability of arbitrator’s decision does not apply because that exception is triggered only when arbitrator finds that officer engaged in misconduct. Portland Police Association v. City of Portland, 275 Or App 700, 365 P3d 1123 (2015)

Law Review Citations

49 WLR 105 (2012)

ORS 243.706 Agreement may provide for grievance and other disputes to be resolved by binding arbitration or other resolution process

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Notes of Decisions

Law Review Citations

ORS 243.706
Agreement may provide for grievance and other disputes to be resolved by binding arbitration or other resolution process