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Portland State University Chapter of the American Association of v. Portland State University

November 27, 2012

PORTLAND STATE UNIVERSITY CHAPTER OF THE AMERICAN ASSOCIATION OF UNIVERSITY PROFESSORS, PETITIONER ON REVIEW,
v.
PORTLAND STATE UNIVERSITY, RESPONDENT ON REVIEW.



On review from the Court of Appeals.*fn1 (ERB UP3605; CA A138895;

The opinion of the court was delivered by: Durham, J.

En Banc

Argued and submitted November 7, 2011.

The decision of the Court of Appeals is reversed. The order of the Employment Relations Board is affirmed.

DURHAM, J.

This case concerns an employment discrimination dispute between Portland State University (PSU) and Portland State University Chapter of the American Association of University Professors (the Association), the exclusive representative of a bargaining unit of academic professionals employed by PSU. Those entities entered into a collective bargaining agreement that included a dispute resolution process for alleged violations of the agreement. That dispute resolution process included a "Resort to Other Procedures" (ROP) provision that permitted PSU to decline or discontinue a grievance proceeding if an Association member brought a claim regarding the same matter in an agency or court outside of PSU. Here, PSU invoked that provision to halt a grievance proceeding after an Association member filed discrimination complaints with two outside agencies, the Oregon Bureau of Labor and Industries (BOLI) and the Equal Employment Opportunity Commission (EEOC).

The Association subsequently filed a complaint with the Oregon

Employment Relations Board (ERB), alleging in part that PSU had engaged in an unfair labor practice by discontinuing the contractual grievance proceeding. ERB concluded that PSU's invocation of the ROP clause constituted unlawful discrimination. It therefore declined to enforce the ROP clause and ordered PSU to submit to the grievance process. On PSU's appeal, the Court of Appeals determined that ERB erred by applying the wrong legal standard in ordering PSU to submit to the grievance process, and it therefore reversed and remanded the case for ERB's reconsideration. PSU Association of University Professors v. PSU, 240 Or App 108, 246 P3d 1162 (2010). The Association sought review of that decision. We allowed review and now reverse the Court of Appeals decision.

The facts regarding this dispute are straightforward. As noted, Article 28 of the collective bargaining agreement between PSU and the Association outlined the dispute resolution process for resolving alleged violations, misinterpretations, or improper applications of the agreement. That process allowed the Association, acting on behalf of its members, to pursue a claim through a specified grievance procedure. The grievance procedure permitted the Association to present a member's complaint within a specific timeframe after an alleged act, omission, or condition took place. Once a grievance was submitted, the Association and PSU commenced informal and formal negotiations. If no resolution was reached, the agreement entitled the Association to submit the matter to binding arbitration. However, as noted, PSU could halt grievance and arbitration proceedings under the ROP provision contained in Article 28, division B, section 2, which provided:

"Resort to Other Procedures. If, prior to seeking resolution of a dispute by presenting a grievance hereunder, or while the grievance proceeding is in progress, a member seeks resolution of the matter through any agency outside the University, whether administrative or judicial, the University shall have no obligation to entertain or proceed further with the matter pursuant to this grievance procedure or pursuant to Division C (ARBITRATION) of this Article." (Boldface and capitalization in original.)

In 1998, Wilson was employed by PSU as a fixed-term faculty member under an annual, renewable contract. In the early fall of 2003, Wilson met with her department head on behalf of a colleague to discuss her belief that the colleague had been sexually harassed by a third faculty member. In early December 2003, Wilson received written notice from PSU that her contract would not be renewed when it expired at the end of the academic year.*fn2 By the springtime, Wilson began to feel ostracized in her department position and began to suspect that it was related to her voicing support for her colleague's sexual harassment claim. On July 1, 2004, Wilson met with personnel from PSU's Office of Affirmative Action and Equal Opportunity (AA/EO) to discuss her belief that members of her department were retaliating against her. She notified AA/EO personnel that she intended to bring a formal complaint. The following day, PSU sent written notice to Wilson that it would not renew her annual contract. Shortly after receiving that notice, Wilson filed a formal complaint with the AA/EO office. Her complaint alleged that the ostracism she had suffered and her subsequent termination constituted discrimination, retaliation, and harassment. AA/EO commenced an investigation and completed a report on the matter, which was disclosed to PSU. That report recommended that PSU take no action on Wilson's complaints, and PSU adopted that recommendation.

Meanwhile, Wilson sought the Association's representation in filing a grievance on her behalf under the collective bargaining agreement. An Association representative met with Wilson and informed her that the Association needed to investigate the merits of a potential grievance. In conducting its investigation, the Association requested information from PSU that included any findings made in the AA/EO investigation. PSU provided much of the requested information within a relatively short period of time, but it delayed releasing the AA/EO report for months. Then, citing confidentiality and relevancy concerns, PSU ultimately declined to release the report. The Association responded in February 2005 by filing a grievance alleging that PSU had violated Article 6 of the collective bargaining agreement by failing to provide it with the AA/EO report.*fn3 Wilson also separately completed an intake questionnaire with the EEOC regarding a potential discrimination complaint protesting her non-renewal. The Association notified PSU that Wilson had filed an EEOC complaint.*fn4

PSU thereafter refused to process the Association's grievance. It cited the agreement's ROP clause for support, and claimed that Wilson's EEOC complaint triggered its right to discontinue the grievance proceeding. The Association responded that the ROP clause was illegal and unenforceable. Wilson subsequently filed a complaint with BOLI alleging that her non-renewal was discriminatory and retaliatory. The Association also submitted a second grievance to PSU similarly alleging that Wilson's non-renewal was discriminatory and retaliatory. In response, PSU asserted that the ROP provision was lawful and enforceable. Relying on the contentions noted above, PSU informed the Association that it would not process either grievance.

The Association then filed a claim with ERB, alleging that PSU's refusal to process the Association's grievances violated ORS 243.672(1)(g), which provides that it is an unfair labor practice for a public employer to "[v]iolate the provisions of any written contract with respect to employment relations including an agreement to arbitrate."*fn5 PSU responded that it did not violate the collective bargaining agreement because, under the ROP provision, it had no obligation to process the grievances once Wilson had filed EEOC and BOLI complaints. The Association replied that the ROP clause was illegal and unenforceable because application of that provision constituted unlawful discrimination under ORS 659A.030(1)(f)*fn6 and Title VII of the Civil Rights Act of 1964.*fn7

] ERB held a hearing and subsequently issued an order explaining its findings and conclusions of law. ERB first determined that PSU had no contractual obligation to process the grievances under the "express and unambiguous" text of the ROP clause. ERB, however, further determined that, although it generally would enforce a bargained contract provision, the ROP clause was illegal and unenforceable. ERB was persuaded by federal cases holding that an employer engages in unlawful discrimination against a bargaining member if it denies that member access to a contractual grievance procedure solely because that member made a complaint to the EEOC. See, e.g., EEOC v. Board of Governors of State Colleges, 957 F2d 424 (7th Cir), cert den, 506 US 906 (1992) (hereinafter Board of Governors) (so holding). ERB explained:

"The ROP provision * * * penalizes an employee who chooses to exercise rights protected under federal and state law by seeking resolution of a discrimination claim with BOLI or the EEOC. For this reason, it constitutes unlawful retaliation under both state and federal law. 42 U.S.C. § 2000e-3(a); and ORS 659A.030(1)(f)."

Thus, ERB concluded that the ROP clause was illegal and unenforceable, and it ordered PSU to process the grievances in accordance with the remaining terms of the parties' collective bargaining agreement.*fn8

"It shall be an unlawful employment practice for an employer to discriminate against any of his [or her] employees * * * because [the employee] has opposed any practice made an unlawful employment practice by this subchapter, or because [the employee] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 USC § 2000e-3(a).

PSU appealed ERB's order, raising two assignments of error. First, PSU asserted that ERB lacked authority to determine whether the ROP clause constituted discrimination under ORS 659A.030(1)(f) and Title VII because the Association brought its claim under ORS 243.672(1)(g). In PSU's view, ERB was limited under ORS 243.672(1)(g) to examining whether PSU had violated the express terms of the collective bargaining agreement. Second, PSU argued that ERB incorrectly concluded that PSU's invocation of the ROP clause had violated state and federal antidiscrimination laws. ...


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