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About Northwest labor press. (Portland , Ore.) 1987-current | View Entire Issue (Jan. 4, 2013)
Oregon Supreme Court ruling expands union grievance rights SALEM — Workers can’t be stripped of union grievance rights just because they’re pursuing outside legal action, said the Oregon Supreme Court in a Nov. 27 ruling, and any collective bargaining agreement language that says otherwise is invalid and unen- forceable. The court’s decision ends an eight- year legal case that began after a pro- fessor at Portland State University’s Graduate School of Education com- plained to her department head that a colleague had been sexually harassed. When the professor later learned that her year-to-year employment contract would not be renewed for the follow- ing year, she turned to her union, Amer- ican Association of University Profes- sors (AAUP), and filed a grievance accusing PSU of discriminatory retali- ation. But PSU refused to process the grievance — once it learned the profes- sor was pursuing related discrimination claims with the state Bureau of Labor and Industries and the federal Equal Employment Opportunity Commission (EEOC). Under a clause in the union contract, the university had no obliga- tion to continue the grievance process if a member tried to resolve the same matter in an outside agency or court. But AAUP asked the state Employment Relations Board (ERB) to declare that the clause itself was illegal, and ERB agreed. PSU challenged the ERB rul- ing at the Oregon Court of Appeals, and won. But AAUP appealed that rul- ing to the Oregon Supreme Court. Under state and federal law, em- ployers are prohibited from discrimi- nating against employees for filing complaints about unlawful employ- ment practices. The Oregon Supreme Court ruled that when the university de- nied the professor access to the griev- ance process — because she had filed an outside civil rights complaint — it was discriminating against her for ex- ercising her rights. “The clause at issue in this case im- poses a form of employer retaliation for protected conduct that reasonably would impede or deter an employee from pursuing his or her statutory rights,” wrote Supreme Court Justice Robert Durham. “The resulting harm is neither theoretical nor trivial, but qual- ifies as a substantive difference in treat- ment.” Attorney Elizabeth Joffe, who rep- resented AAUP in the case, said unions tend to oppose such clauses, whereas employers like them because they pre- vent workers from having “two bites at the apple,” and they can reduce em- ployers’ legal expenses. But for workers, the clauses create a dilemma. EEOC, for example, does- n’t pursue discrimination complaints if workers have waited more than 300 days to file, but union grievances can take longer than that to resolve. Mean- while, workers know that unions will represent them for no charge in the grievance process, whereas even when attorneys take discrimination cases on a contingency fee basis, workers may have to pay a retainer to cover costs. In the professor’s case, she delayed filing her outside case while the griev- ance was under way, which resulted in her complaint being dismissed as un- timely. Later, when PSU was ordered to resume the grievance process, AAUP was able to complete its investigation into the facts of the grievance, and the union opted not to pursue the grievance further. The professor moved on and got a job at another university, and the union bargained the objectionable clause out of its next contract. Now, the Oregon Supreme Court’s decision means union members throughout Oregon will have the right to pursue both an internal grievance process (if their union contract provides for one) and an external remedy. The decision’s immediate application is to public sector union members. But Joffe, the attorney for AAUP, said it will af- fect private sector union rights as well, since lower courts, guided by the higher court’s decision, would strike down any such clause in private sector union con- tracts if they’re challenged in court. “I think it’s a very significant deci- sion, because a lot of contracts have this language,” Joffe said. “It’s impor- tant that unions know they need to get it out of their contracts.” Michigan Legislature rams through right-to-work bills LANSING, Mich. — Michigan be- came the 24th state to enact a so-called “right to work” law after Republican lawmakers rammed two bills through the lame-duck Legislature just before Christmas. Republicans control both chambers of the Legislature, and the governor is a former venture capitalist and CEO. They passed the bills in six days with- out any public hearings. One bill covers almost all public workers, and one cov- ers all private sector workers. Only po- lice and fire unions are exempt. Michigan is home of the United Auto Workers and has one of the high- est union density levels in the country with roughly 17.5 percent of all work- ers members of a union. The term “right to work” is a mis- nomer. It has nothing to do with the right of a person to have a job. Right- to-work laws make it illegal for em- ployees and employers to negotiate a union contract (closed shop) that re- quires all employees who benefit from the collective bargaining agreement to pay their fair share of the costs of ne- gotiating and administering it. Proponents of right-to-work, includ- ing Michigan Gov. Rick Snyder, insist their action is only about “freedom of choice,” saying no worker should be forced to pay dues in order to have a job. That being the case, why did Re- publican lawmakers treat police and fire personnel with such disdain by ex- empting them from the law? In fact, federal law already guaran- tees that no one can be forced to join a union, and no one can be required to pay union dues that fund political causes they oppose, explained Gordon Lafer, an associate professor at the Uni- versity of Oregon’s Labor Education and Research Center, in a report for Economic Policy Institute. “By making it harder for workers’ organizations to sustain themselves fi- nancially, right-to-work laws aim to weaken unions’ bargaining strength,” Lafer wrote. “When unions are weaker, wages and benefits decline for all workers, because nonunion employers face less competitive pressure to meet union wage standards.” The quick legislative action in Michigan came on the heels of a No- (Turn to Page 8) (International Standard Serial Number 0894-444X) Established in 1900 at Portland, Oregon as a voice of the labor movement. 4275 NE Halsey St., P.O. Box 13150, Portland, Ore. 97213 Telephone: (503) 288-3311 Editor: Michael Gutwig Staff: Don McIntosh, Cheri Rice Published on a semi-monthly basis on the first and third Fridays of each month by the Oregon Labor Press Publishing Co. Inc., a non- profit corporation owned by 20 unions and councils including the Oregon AFL-CIO. Serving more than 120 union organizations in Ore- gon and SW Washington. Subscriptions $13.75 per year for union members. Group rates available to trade union organizations. PERIODICALS POSTAGE PAID AT PORTLAND, OREGON. CHANGE OF ADDRESS NOTICE: Three weeks are required for a change of address. When ordering a change, please give your old and new addresses and the name and number of your local union. POSTMASTER: Send address changes to NORTHWEST LABOR PRESS, P.O. BOX 13150, PORTLAND, OR 97213-0150 JANUARY 4, 2013 NORTHWEST LABOR PRESS PAGE 3
