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-
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