Argued and Submitted February 5, 2014.
UP1310. Employment Relations Board.
Harry Auerbach argued the cause and filed the briefs for petitioner.
Barbara J. Diamond argued the cause and filed the brief for respondent. With her on the brief was Diamond Law.
Before Ortega, Presiding Judge, and DeVore, Judge, and Schuman, Senior Judge.
[267 Or.App. 492] DEVORE, J.
Petitioner City of Portland (city) seeks judicial review of an order of the Employment Relations Board (ERB) that declared that the city committed an unfair labor practice (ULP) by failing to accept the terms of an arbitration award. In an earlier proceeding, an arbitrator had determined that, without just cause, the city had discharged a disabled firefighter on injury leave. In order to make him whole, the arbitrator had ordered the city to reinstate him to leave status and to pay him the equivalent of the disability benefits that he had lost some months before the discharge. Although the city reinstated him, it refused to pay the sum equivalent to lost disability benefits. On his behalf, the Portland Fire Fighters' Association (association) filed a ULP complaint against the city for failing to comply with an arbitration award. ORS 243.672(1)(g). The city contends that, in the earlier proceeding, the arbitrator had exceeded the scope of his authority to arbitrate. ERB found otherwise and ordered compliance. The city seeks review of that order. We affirm.
The facts are largely undisputed but layered in proceedings. Tom Hurley is a former city firefighter who injured his knee in 1983 and his back in 1992. Since 1993 or 1994, he had been on disability status and receiving disability benefits from the city's Fire and Police Disability and Retirement Fund (fund). Hurley received training through the fund's vocational rehabilitation program to become a chef. His wages in that occupation have the effect of reducing disability benefits, but benefits can be reduced no lower than a minimum of 25 percent of his base rate of pay at the time of disability.
[267 Or.App. 493] In 2006, the city implemented a return-to-work program, which required certain injured fund members to resume work in restricted-duty positions. Hurley was notified that he was a potential participant in the program. The city directed him to attend a mandatory five-week training session beginning in November 2006. He was told that, if
he failed to attend training, the fund would suspend or terminate his disability benefits. He did not attend the training because it conflicted with his duties as a chef at restaurants in Seattle and Portland. In December, the fund sent Hurley a letter asking him to explain his absence. In response, Hurley's attorney asserted, among other things, that, after vocational rehabilitation, a disabled firefighter should not be required to retrain for a restricted-duty job. Although the city conceded Hurley's scheduling conflicts, the city still asked him to reschedule training by March 9, 2007. The city followed with a notice directing Hurley to report for work as an inspector on April 5, 2007. Hurley did not reschedule training, and he did not report for work in the restricted-duty job.
On April 13, 2007, the fund notified Hurley that it terminated his disability benefits because he had failed to attend training. The fund advised Hurley that he had 14 days to respond and 60 days to appeal the decision within the fund's administrative process. His attorney responded, asking for reconsideration of the benefit termination, but the fund did not reply or reconsider. Hurley did not pursue the administrative appeal.
Coincidentally, on April 25, 2007, the association filed a separate ULP complaint with ERB regarding the city's implementation of the return-to-work program. Although Hurley was not involved in that proceeding, the complaint concerned the same program that sought to retrain and reassign him. The association charged, among other things, that the city unilaterally implemented the program while refusing to engage in mandatory bargaining over the program's impacts.
[267 Or.App. 494] On April 26, 2007, the city again directed Hurley to report for work as an inspector, setting a date in May 2007, and warning that his failure to report would be deemed an abandonment of his job and a reason to terminate his disabled employment status. In June 2007, the city notified Hurley that it was proposing to discharge him, and on October 7, 2007, the city discharged him for abandoning his job since April 5.
The association challenged Hurley's discharge by filing a grievance pursuant to the parties' collective bargaining agreement (CBA). The association alleged that the discharge lacked just cause. As remedies, the association sought rescission of Hurley's discharge and " reinstatement to status as [a] disabled employee receiving benefits through FPD& R [Fund]." (Emphasis added.) The parties submitted the dispute to arbitration. After conferring, the arbitrator recorded that the parties agreed that the two arbitration issues were:
" Did the City have just cause to terminate Grievant under the City's 'return-to-work program' in light of the ERB's ruling in Case No. UP-14-07?
" If so, does the arbitrator have authority to issue the ...