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Service Employees International Union Local 503 v. University of Oregon

Court of Appeals of Oregon

April 4, 2018

SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 503, Oregon Public Employees Union, Respondent,
v.
UNIVERSITY OF OREGON, Petitioner.

          Argued and submitted October 31, 2017.

          Employment Relations Board UP00915

          Kyle T. Abraham argued the cause for petitioner. With him on the briefs were Edwin A. Harnden and Barran Liebman LLP.

          Shirin Khosravi argued the cause for respondent. With him on the brief was Marc Stefan.

          Elizabeth A. Joffe and McKanna Bishop Joffe, LLP, fled the brief amicus curiae for Oregon Education Association.

          Katelyn S. Oldham fled the brief amicus curiae for United Academics and the Oregon Chapter of the American Association of University Professors.

          David C. Reese, Rebecca Gose, Ryan Hagemann, Christopher Burford, Jason Catz, Lisa M. Freiley, and Karen M. Smith fled the brief amicus curiae for Portland State University, Oregon State University, Western Oregon University, Eastern Oregon University, Southern Oregon University, Oregon School Boards Association, and Oregon Community College Association.

          Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

         [291 Or.App. 110] Case Summary: The University of Oregon petitions for review of an order of the Employment Relations Board (ERB) in which it determined that the university violated its obligation under ORS 243.672(1)(e) to "bargain collectively in good faith" with respondent, the Service Employees International Union Local 503, Oregon Public Employees Union (SEIU), in how it responded to SEIU's request for information related to grievances brought under the parties' collective bargaining agreement. The university contends that the information requested by SEIU consisted of student records protected by the Family Educational Rights and Privacy Act (FERPA), 20 USC § 1232g, and, therefore, its response to SEIU was justi-fed. The university does not dispute ERB's interpretation of ORS 243.672(1)(e); instead, in its first assignment of error, it challenges the administrative law judge's (ALJ) determination that the withheld information was not protected by FERPA. In its second assignment of error, the university asserts that ERB misapplied the Public Employee Collective Bargaining Act by ruling that the university must request student consent and waiver of their privacy rights under FERPA as part of the duty to accommodate under ORS 243.672(1)(e). Held: The university did not demonstrate any error by ERB. Unlike the ALJ, ERB did not conclude that the records were not confidential under FERPA; instead, it assumed without deciding that they were protected. That was not error. Further, the university misread ERB's order; it did not state that, in order to comply with ORS 243.672(1)(e), as a matter of law, the university is categorically obligated to request student consent for the release of requested documents. Because the university's second assignment of error is predicated on an erroneous understanding of ERB's order, it fails for that reason.

         Affirmed.

         [291 Or.App. 111] LAGESEN, P. J.

         Pursuant to ORS 663.220, [1] the University of Oregon petitions for review of an order of the Employment Relations Board (ERB) in this unfair labor practice case. In that order, ERB determined that the university violated its obligation under ORS 243.672(1)(e) to "bargain collectively in good faith" with respondent, the Service Employees International Union Local 503, Oregon Public Employees Union (SEIU), in how it responded to SEIU's requests for information related to ongoing grievances brought under the parties' collective bargaining agreement. ERB further ordered the university to cease and desist violating ORS 243.672(1)(e). The university contends that the information requested by SEIU consisted of student records protected by the Family Educational Rights and Privacy Act (FERPA), 20 USC § 1232g, and that its response to SEIU's request was justified in view of its obligations under FERPA to keep that information confidential. Under those circumstances, the university asserts, ERB was wrong to conclude that its withholding of the information violated its obligations under ORS 243.672(1)(e). On review for legal error, substantial evidence, and substantial reason, Portland Fire Fighters' Assn. v. City of Portland, 267 Or.App. 491, 498, 341 P.3d 770 (2014), we conclude otherwise and, therefore, affirm.

         By way of background, as ERB explained in the order on review, it long has interpreted the statutory duty to bargain in good faith imposed on a public employer by ORS 243.672(1)(e) to encompass an obligation to promptly provide information relevant to a grievance to the exclusive representative:[2]

"It is well settled that a public employer's obligation to collectively bargain in good faith under ORS 243.672(1)(e) [291 Or.App. 112] includes promptly providing an exclusive representative with requested information that has 'some probable or potential relevance to a grievance or other contractual matter.' Association of Oregon Corrections Employees v. State of ...

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