State of Oregon, Mental Health and Developmental Disability Services Division, Central Mental Health.
This Arbitration arises pursuant to Agreement between Oregon Public Employees Union, Local 503, SEIU ("Union"), and State of Oregon ("State" or "Employer"), Mental Health and Developmental Disability Services Division, ("MHDDSD" or "Division"), Central Mental Health ("CMH"), under which LUELLA E. NELSON was selected to serve as Arbitrator and under which her Award shall be final and binding upon the parties.
Hearing was held on February 1 and 2, 1994, in Salem, Oregon. The parties had the opportunity to examine and cross-examine witnesses, introduce relevant exhibits, and argue the issues in dispute. The parties also filed post-hearing stipulated testimony and exhibits. Both parties filed post-hearing briefs on or about March 2, 1994.
Lynn-Marie Crider, Esquire, 4828 SE Hawthorne Boulevard, Portland, OR 97215.
John S. Irvin, Esquire, Assistant Attorney General, Department of Justice, 100 Justice Building, Salem, OR 97310.
Did the Employer violate Articles 81 and 82 of the collective bargaining agreement when it reclassified the Grievants downward? If so, what is the remedy?
Was the downward reclassification of the Grievants arbitrary in violation of Article 82 of the collective bargaining agreement? If yes, what is the appropriate remedy?
The parties stipulated that, if any violation is found, the appropriate remedy would be to set aside the reclassification decision, return the affected employees to the position of Program Technician 2 ("PT-2"), and make them whole for any losses from the reclassification. The parties further stipulated that a "red-circle" provision probably prevented any pay loss for the affected employees.
Was the downward reclassification of the Grievants arbitrary, and thus in violation of Articles 81 and 82 of the collective bargaining agreement? If so, what is the appropriate remedy?
Section 1. Reclassification upward is a change in classification of a position by raising it to a higher classification. Reclassification must be based on a finding that the duties and responsibilities of a position have been significantly enlarged, diminished or altered, but the knowledge, skills and abilities required are still essentially similar to those previously required.
Section 1. Reclassification downward is a change in the classification of a position by reducing it to a lower classification.
Section 3. Within thirty (30) days from the date the employee receives written notice that his/her position will be reclassified downward, he/she may grieve this action by filing a grievance at the Agency Head level in the grievance procedure. The Agency Head shall respond in writing in accordance with the appropriate time limits contained in the Agency grievance procedure. A decision of the Agency to deny a reclassification grievance under this Article may be submitted by the Union to final and binding arbitration ... The arbitrator shall allow the decision of the Agency to stand unless he/she finds that the decision of the Agency was arbitrary.
Since April 1, 1990, there has been no significant diminishing of duties or responsibilities of the positions occupied by the following persons and there has been no significant alteration of the positions that would lower the level of the duties or responsibilities of the positions.
The State adopts and maintains the classification system for all State employees. Since 1979, agencies have been responsible for allocating positions to particular classifications. Unions cannot challenge the overall classification system, but can bargain about the pay levels for each classification and the procedures for allocating positions to classifications. Since 1981, unions have been able to seek review of allocation decisions only through arbitration. After 1981, the State ceased meeting and conferring with the Union regarding the personnel rules governing classification. Instead, the parties incorporated the personnel rule setting forth the classification standards in their 1981 Agreement. That language was identical to the current contract language.
In the mid-1980's, the State performed an exhaustive review of its classifications. One outgrowth of this review was a joint reallocation process during 1989 and 1990. The State and Union agreed to reclassify all unit employees, effective April 1, 1990. In that process, the State encouraged its agencies to "institute procedures to ensure the timely availability of current and accurate position descriptions." CMH updated most of its position descriptions ("PD's") at the time.
A joint labor-management committee considered employee appeals from the new classifications. In considering appeals, the joint committee's standard was whether the classification proposed by the Union "better describes the duties, purpose and distinguishing characteristics of the job ...." No evidence exists that any of the positions involved in this case went through the appeal process.
In 1991, CMH submitted a request to establish two limited duration PT-2 positions. The State's Personnel Division expressed concern over the large number of PT-2's at CMH, and declined to approve the request. After further discussions, CMH agreed to review the allocation of all 48 PT-2 positions in CMH in exchange for approval of the two requested positions. The Personnel Division provided seven alternative classifications to consider.
CMH formed a committee of managers to review PT-2 allocations. Managers looked at PD's, updated some, and compared them with PT-2 and other class specifications. After further correspondence between CMH and the Personnel Division, CMH reclassified 24 positions downward.
Dan Barker, Manager of Adult Services, served on the committee. He testified the Division had been told to reduce the number of PT-2's. He re-wrote some PD's in September 1992 to tailor them to lower class specifications. To do so, he may have removed some duties from the PD's. However, he expected only minimal changes in day-to-day operations as a result of the new PD's. He testified that some re-written PD's reflected what he expected employees to be doing in September 1993, not what they were doing at the time he drafted them. He testified that many of the PD's were inaccurate within a few weeks. For example, downsizing in September 1992 required staff members to act more autonomously. He testified that virtually everyone in his office is doing more work, and more responsible work, than in September 1992.
The [PT-2] provides functional direction and overall monitoring of an agency program; researches and evaluates program regulations and operations; makes oral and written recommendations to executive staff for informed decision making; represents the agency to various public, private, and legislative groups; and actively participates in the development of program administrative rules and operating policies.
1. Program Monitoring. Typical tasks: conducts thorough research studies covering governing program regulations, legislative and executive intent, operating policies and end results, evaluates findings and prepares comprehensive reports and recommendations for executive staff; presents recommendations orally and in writing; drafts or reviews drafts of language for administrative rules, monitors pertinent bills during the legislative session, drafts program related legislative concepts for internal review, reviews court decisions, and helps draft agency orders or policy changes as necessary to comply with court ruling.
2. Program Coordination. Typical tasks: provides functional program direction through coordination of employees engaged in program activities; identifies long-range objectives, short-term operational goals, and develops operating plans based on in-depth knowledge of program regulations and requirements; ensures statutory program compliance; develops program budgetary data; interprets governing rules and regulations, operating policies, and procedures to operating departments, and various public, private, and legislative groups; conducts staff meetings and presides over agency taskforces and standing committees.
3. Agency Representation. Typical tasks: represents agency before legislative, fact finding, and/or fund granting bodies to explain, interpret and justify agency program or policies; represents the agency on interagency committees, to individuals and public groups, and to the media. Designs, develops, and presents (or coordinates the presentation of) statewide, regional, and/or publically [sic] directed program training.
4. Miscellaneous. Typical tasks: may lead a team of technicians conducting a statewide review of program operations for compliance with regulations and adherence to standards. Identifies operational strengths and weaknesses, problems or ares of noncompliance, and recommends corrective action; meets with line management and staff to determine needed corrective action and develop plan; follows-up to monitor operational corrective plans; compiles and writes summary reports; may review and analyze findings of field reviews.
1. Reviews project assignment to determine scope and diversity of involvement, training and resources needed, necessary contacts and required procedural administrative actions, reviews existing methods and procedures, and modifies as necessary to accomplish assignment; identifies potential difficulties and determines means of lessening or avoiding them.
2. Contacts appropriate participants such as various internal units, other State agencies, other public jurisdictions, private businesses and organizations, special interest groups, local communities, and the public; seeks cooperation and input in project assignment, coordinates needed meetings or hearings to gather input, and meet procedural requirements.
3. Identifies resources and administrative steps needed for project completion; develops project plan in consultation with appropriate participants; initiates project and coordinates steps to ensure participation of appropriate interested individuals and groups.
4. Represents agency in meetings, administrative hearings, etc. in dealing with affected and interested individuals and groups concerning the project; moderates divergent viewpoints and helps build consensus among those involved appropriate to the project assignment, processes, and procedures.
5. Monitors project status to ensure progress toward completion, required procedural steps are completed fully and timely, interested groups and individuals are informed of progress, and project output is appropriate; modifies project plan and coordinates changes with participants as necessary in response to unforeseen [sic] changes or unexpected developments; upon project completion, closes files and reviews records to ensure documentation is appropriate and complete.
The [PR-2] represents multiple, diverse agency programs or programs having both substantial service and control requirements to users such as private or quasi-public businesses, other governmental units, public organizations, or individuals.
1. Program Representation. Typical tasks: meets with or uses telephone to advise officials and the public on program applicability and requirements; interprets and explains applicable laws, rules, regulations, policies, and procedures to current and potential program participants; advises and assists potential participants on requesting program services and/or setting up or implementing programs; may write policy and procedure guides for use by program participants.
2. Service Request Review. Typical tasks: reviews application for program services; ensures requester has supplied complete and accurate information; evaluates request for service against program requirements; approves/denies requests; explains decision to requester with suggestions, if appropriate, on meeting program requirements.
3. Program Monitoring. Typical tasks: instructs individuals and groups on proper methods and procedures for compliance with program regulations; monitors reports and/or other documents from program participants; ensures that they are timely and complete; contacts participants as needed to obtain compliance with program reporting requirements.
4. Operations Review. Typical tasks: individually or as a member of a team, conducts on-site review of program operations for compliance with and adherence to standards; identifies operational strengths and weaknesses, problems, or areas of noncompliance, and identifies needed corrective action; follows up to monitor branch/program operational corrective plan; compiles and writes summary reports; may periodically lead team of analysts.
The BUDGET ANALYST prepares the agency's biennial budget, participates in securing legislative approval of the budget, and insures proper management of the budget, working closely with administrative and management staff and with accounting and fiscal technical staff. The budget analyst performs a number of highly technical functions including budget development, budget execution, advanced fiscal analysis, revenue and expenditure projections, and budget status analysis on an agency-wide or individual program level.
1. Budget Development. Typical tasks: consults with senior management on agency goals, long-range and short range program and financial objectives; develops information on funding projections, expenditure forecasts, staffing levels and program modifications; translates decisions and data into required budget format; works with representatives of other agencies to resolve budget issues; utilizes computer-based systems to develop position levels and costs; assists senior agency management in preparing and presenting information to Executive Department director, the Governor's office, and the legislature.
2. Budget Execution. Typical tasks: develops revenue forecasts using a variety of sources including program managers, Federal and State fund sources, and historical data; incorporates forecasts into budget; monitors expenditures against revenues; monitors program and financial performance against plans; computes and carries out budget reallocation based on expenditure patterns and forecasts; advises senior management on budget adjustments and potential over-expenditures; prepares monthly allotment plan and monthly financial analysis; prepares Emergency Board requests after consultation with senior management; counsels program managers on budget issues and budget status.
3. Budget Analysis. Typical Tasks: carries out special studies of budget status and agency fiscal position; analyzes and interprets Federal and State law and regulations relating to fiscal and budget issues; performs specific program budget analysis upon request; evaluates budget performance by individual program managers; provides information for accounting and statistical reports at Federal and State levels.
CMH initially proposed to reclassify Skryha to PR-2. Based on the PD submitted at the time, the Personnel Division recommended a PR-1 (Salary Range 22). CMH revised her PD and successfully proposed to reclassify her to Project Coordinator.
Skryha manages housing programs for the mentally ill. By all accounts, her PD does not accurately describe her duties. According to Barker, the PD underplays the degree of responsibility, technical knowledge and expertise required. Barker attributed that failing to his own lack of understanding of her position. He has held off re-writing her PD pending this arbitration. Skryha protested a draft of her PD and provided additional information before Barker submitted the PD, but he did not incorporate her materials. In her view, the PD omits the major focus of her work-- administrative responsibilities, management of the housing program, and budgetary responsibilities.
The Personnel Division accepted CMH's proposal to reclassify Asmann to PR-2. Barker testified that Asmann's current duties are more akin to his former PT-2 duties than to the PR-2 duties in his PD, but those functions were not going on in September 1992.
Asmann is an expert on crisis services and civil commitment. Since 1986, he has assisted in advising the legislature on statutory changes in this area. He has also worked on administrative rule changes, trained others in the civil commitment system, and conducted studies of the civil commitment system. His studies sometimes result in recommended rule or statutory changes. His legislative role increased in the fall of 1992, when his supervisor left. He then headed work groups working on redrafting the civil commitment statute and rules. He testified that, since the fall of 1992, he has spent 75-80% of his time working either with legislative personnel or with the work groups. He testified he performs most of the duties and responsibilities listed in the PT-2 class specification.
Asmann's PD does not specifically mention his liaison work with the legislature. It allocates only 10% of his time to work groups, task forces, and state and national level committees. It contemplates that he will spend 65% of his time developing, implementing, coordinating, monitoring, and evaluating community mental health services for adults.
CMH proposed to reclassify Burgio as a Budget Analyst. The Personnel Division disagreed with this allocation, and suggested classification as a Fiscal Coordinator 1 (Salary Range 23). CMH revised her PD and re-submitted it with the same recommendation. The Personnel Division accepted the recommendation in light of the revised PD.
Jack Morgan, Deputy Assistant Administrator for Developmental Disability Services, testified the PD for Burgio accurately lists the duties performed. However, the percentage of time spent on each fluctuates. Burgio's PD contemplates, inter alia, that she will spend 85% of her time on budget execution and preparation. On cross examination, Morgan testified Burgio's time on budget matters has never approached 85%. According to Morgan, before September 1993, those duties occupied one-third of her time. He believes her budget duties have increased since September 1993.
Burgio estimates she spends 20% of her time on budget execution and preparation. The remainder of her time involves budget implementation (25%), providing technical assistance within the Office of Developmental Disability Services, and managing the contract unit staff. Unlike Grants/ Contract Coordinators, she does not do "production" work (i.e., "number crunching" or the actual preparation of contracts). Instead, she attends many meetings where policy is discussed, and brings back policy information so her staff can use it to produce contracts. She performs the kinds of duties described in her PD. However, in her view, her PD fails to reflect additional duties. Her managerial and coordinating duties increased when Measure 5 induced cutbacks in managerial staff.
Burgio testified that staff in comparable positions elsewhere in the agency remain PT-2's. She includes among those Alan Sternberg, who performs similar functions for mental health and alcohol and drug programs.
Four Behavior Management Specialists work at the Fairview Training Center. CMH initially recommended reclassification of all four as Budget Analysts. The Personnel Division disagreed, and suggested PR-1 as the appropriate classification. CMH then revised their PD's and successfully recommended reclassification to PR-2.
The parties stipulated Howe would testify the Specialists' duties have not changed since April 1990, although the method of authorizing additional funding for Specialists' clients has changed. Specialists used to recommend funding changes to their supervisor, Julie Beaton. A "Regional Coordinator" now reviews the Specialists' funding recommendations, and a committee makes the final decision. If the committee approves funding, the Regional Coordinator now fills out the paperwork authorizing the change--work previously performed by the Specialists. This work takes five minutes per client, and involves between one and four clients per Specialist per month. The parties further stipulated that Beaton views this change as a reduction in their authority.
Under the clear language of the Agreement, any downward reclassification "must be based on a finding that the duties and responsibilities of a position have been significantly ... diminished ...." [emphasis added] Any downward reclassification in the absence of such a finding is impermissible, regardless of whether the decision to place an employee in a particular classification is otherwise arbitrary. Also, any reclassification downward in the absence of such a finding is necessarily arbitrary. The selection of new classifications was also arbitrary.
These reclassifications occurred only because the Personnel Division believed CMH had too many PT-2's and refused to approve new PT-2 positions. CMH stipulated there was no significant diminishment in the duties and responsibilities of 17 positions, and the Arbitrator should make the same finding regarding the remaining four positions. The change in paperwork tasks for the Specialists is insignificant. Since the Specialists never had the authority to approve the allocation of funds, the change in the persons to whom they recommend approval is not a significant change.
The Agreement has been consistently interpreted to preclude reclassifications absent changes in duties. This is consistent with the clear language of the Agreement. The State has consistently relied on this language to justify refusals to upward reclassify arguably misclassified positions. The Union has not challenged that interpretation of the Agreement, and arbitrators have adopted it. The State is in no position to contend at this late date that the language is meaningless.
Oregon Employee Relations Board ("ERB") decisions interpreting the personnel rule are not controlling. An agency rule and the provisions of a collective bargaining agreement must be interpreted differently. Where an agency has adopted a rule pursuant to legislative delegation of authority, the agency's interpretation of the rule is entitled to deference. A collective bargaining agreement is a contract, and must be interpreted consistent with the manifest understanding of both parties.
In 1978 and 1981, the ERB essentially gutted the personnel rule that became the language of Article 81. It declined to read the personnel rule literally, because to do so would limit the Personnel Division's statutory authority. It refused to apply the rule to preclude correction of classification errors. When the State agreed to incorporate the personnel rule in the Agreement, it gave up part of its statutory authority to allocate positions. The Arbitrator should not read the reclassification language as if it were not intended to limit the employer's authority to change a classification.
Moreover, the parties have not read the Agreement as ERB did the personnel rule. The parties have consistently given the language meaning, primarily to prevent upward reclassifications in the absence of change. Even if the language was ambiguous, the parties' custom and practice clarifies the intent.
The limitation on reclassification applies equally to upward and downward reclassification. The language itself speaks to both enlargement and diminishment of responsibility. The policy reasons for limiting reclassifications are strong whether the reclassification is upward or downward. Allocation is a time-consuming process, and challenges through the grievance procedure are expensive. To limit the time and expense devoted to these issues, the parties reasonably decided to limit the opportunity to reclassify or seek reclassification.
The 1990 classification overhaul demonstrates the institutional reasons for the contractual limitations on reclassification. The State had a one-time chance to examine each position and classify it correctly, without regard to changes in duties. The Union had a one-time chance to challenge classification decisions without having to meet the high burden of showing the classification was arbitrary. The parties created a unique and inexpensive dispute resolution process for this review. When the 1990 process was complete, the old rules and procedures came into play again. The concern for stability again became more important than the concern for accuracy in allocation.
The limitation on reclassification also serves the interest of fairness. Employees know their duties, classifications, and compensation. They also know their compensation will not be reduced unless their duties and responsibilities change or the Union agrees to a wage reduction. If employees were barred from upward classification without taking on additional duties, but were not protected from downward reclassification where their duties remained unchanged, they could not rely on the incomes to which they agreed in accepting positions.
Even if the Agreement does not forbid downward reclassifications absent diminution of duties, the decisions to reclassify Burgio, Asmann, and Skryha were arbitrary. The decisions were based on erroneous understandings of those Grievants' duties and responsibilities. If a PD does not describe an employee's actual job duties, a classification decision based on the PD is arbitrary. Also, if the basic duties and responsibilities differ substantially from those outlined in the class specification, the decision is arbitrary.
The PD's were not kept up to date, and were rewritten without input from the incumbents. As a result, those for Burgio, Asmann, and Skryha do not come close to describing what they have done since the new PD's took effect. Therefore, the allocation decisions were based on inaccurate factual premises and were arbitrary.
CMH incorrectly assumed that Skryha coordinated the actual production of housing by working with architects, contractors, and the like. She actually manages the housing program, not individual housing projects. Her position is better described by the PT-2 classification. Her reclassification was based on a fundamental misunderstanding of what she does, and was arbitrary.
Asmann spends little time performing the functions in his PD. His actual duties are almost perfectly described by the PT-2 class specification. CMH's assumption that he lacked responsibility for developing program rules and procedures was without factual basis, and therefore arbitrary.
The rationale for retaining Sternberg as a PT-2 applies equally to Burgio. CMH failed to explain why Burgio should be classified differently from Sternberg. This allocation decision is therefore irrational. The breadth of Burgio's responsibility might justify her classification as a Fiscal Analyst 2 (Salary Range 27) rather than PT-2. Since Burgio deals at a policy level with budgeting, grants, and their interaction, consideration should be given to that classification. Her classification should be based on what she is doing, not on fantasy.
These reclassification decisions were driven by the Personnel Division's belief that CMH had too many PT-2's. Whether or not the Personnel Division intended it, this resulted in supervisors' believing that PD's should be rewritten to justify placing employees in different classifications. PD's were tailored to specifications, not to actual job duties. The effort to satisfy the Personnel Division distorted the process of properly classifying Grievants.
Allocation should match duties, authorities, and responsibilities to the closest class specification. Nothing suggests that a certain percentage of positions in an agency should be PT-2's. Each position is to be evaluated on its own merits. An agency such as CMH, which creates and manages programs that are carried out by other governmental entities and private contractors, will have more PT-2's than an agency that carries out its programs in a series of field offices.
CMH erred in allowing pressure from the Personnel Division to distort its allocation decisions. In the cases of Burgio, Asmann, and Skryha, the pressure produced arbitrary classification decisions. Grievants should be returned to their PT-2 classifications and be made whole for any losses they have suffered as a result of the reclassifications.
The Union must prove that the downward reclassifications violated the Agreement. The applicable test is whether the decisions were "arbitrary." An arbitrary action is one having no rational factual basis. The Arbitrator has no authority to determine the allocation of positions to classes. Such issues as "core elements" and "51% rule" have no proper role in determining whether the State's decision was arbitrary. A portion of an employee's responsibilities performed only 15-20% of the time might be sufficiently crucial to justify allocation to a higher class.
The PD's and class specifications for the 21 positions at issue show rational bases for the allocations. It is irrelevant whether the Arbitrator or the Union might have a different opinion as to the correct allocation.
The class specifications for each of the positions include typical duties consistent with those shown in the PD's for grievants reclassified to those positions. There is a rational basis for Skryha's allocation to Project Coordinator. There may need to be recognition of a higher level of program responsibility than Skryha's PD portrays. Asmann may have functions more typical of PT-2 than PR-2. His PD may fail to depict the actual nature of his duties and responsibilities. Except for Asmann, the evidence does not show significant inaccuracies in the PD's for employees allocated to PR-2. Except for Skryha and Asmann, the PD's do not have significant inaccuracies. Except for Skryha and Asmann, the PD's validly show a rational basis for the allocations.
It is irrelevant whether employees were involved in updating their PD's. Accurate PD's are the State's responsibility, not the employee's. PD's do not describe what the employees agree to perform; they describe what the State requires them to perform. Managers are responsible to know what they want employees to perform and to describe it in writing in the PD. In any event, only Asmann showed any lack of opportunity for input. The issue is not thoroughness of the process or the extent of employee involvement. The issue is whether the allocations were arbitrary.
The issue of change of duties or responsibilities since April 1990 is not a permissible issue. Even if it is an issue or a relevant fact, lack of change of duties or responsibilities cannot bar the State's correction of incorrect position allocations.
No change has occurred in 17 of the positions that could give a basis for considering a downward reclassification. Any change or decrease in the remaining four positions is admittedly very minor. The State does not rely on such a change as any part of the reason for the downward reclassification. The State has the authority to make downward reclassifications, regardless of change, to correct misallocations.
In other arbitration cases, agencies have argued the lack of significant change in duties or responsibilities to defend against employee requests for upward reclassification. Some arbitrators have incorrectly stated such a change is a condition precedent to an upward reclassification. Lack of such a change could not bar upward reclassification. The proper issue is whether the class selected by the State has a rational factual basis. If it does not, the classification is improper, regardless of change or lack of change of duties and responsibilities. The Arbitrator should not refuse to consider the State's arguments in this case solely because State agencies in prior cases have made contrary arguments in upward reclassification cases.
Article 82 does not permit the Union or an employee to attack a downward reclassification on the ground there has been no significant change in duties or responsibilities. The language appears only in Article 81, but the use of the word "diminished" reveals an intent that the requirement apply to downward reclassifications as well as upward reclassifications.
The Arbitrator cannot overturn the denial of a downward reclassification grievance "unless he/she finds that the decision of the Agency was arbitrary." The "decision" to be reviewed for arbitrariness is unclear. It is immaterial whether the "decision" is the denial of the grievance protesting the downward reclassification, or the downward reclassification decision itself. The language was intended to protect the State's right to use its best judgment in classifying positions and to prevent second-guessing of classification decisions by arbitrators. It appears the parties intended that arbitrariness of the denial of the grievance was to be determined by the arbitrariness or lack of arbitrariness of the classification action being protested.
Failure to base a reclassification on a finding of change of duties or responsibilities would probably be considered by the Union to be a violation of the "finding" requirement of Article 81. However, the Article 82 procedure does not allow downward reclassifications to be set aside for violation of some provision of the contract; it only allows them to be set aside if they are arbitrary. Violation of the contract does not make a decision arbitrary. Article 82 does not allow downward reclassification decisions to be overturned simply because those decisions violate the contract.
The general grievance provisions do not allow a challenge to a violation of Article 82 that is not arbitrary. Article 82 sets up a specific and exclusive procedure for grieving and arbitrating downward reclassifications. If the parties had intended to permit the use of the general grievance procedure, they could have stated in the contract that downward reclassifications could also be grieved and arbitrated under Article 21. In that event, the special time limits and procedures in Article 82 would be superfluous. However, even if violations of Articles 81 or 82 could be litigated in this case, the history of the "finding" language in Article 81 shows that it is not to be used to bar correction of incorrect allocations.
The ERB has held that the "finding" language that the parties incorporated in Article 81 cannot be used to limit the Personnel Division's authority to allocate positions to the appropriate class. ERB has also held that it is not arbitrary for the Personnel Division to change its mind about the proper allocation of a position, so long as the result is rational. ERB observed that such a rule would prevent reclassification, no matter how erroneous the initial allocation may have been. It read the rule to prohibit de facto "promotion" or "demotion" where the position was properly allocated.
ERB's administrative interpretation of the Personnel Division rules is part of the interpretive baggage of the language the parties incorporated in Article 81. The parties intended the language to have the same meaning it had in the Personnel Division rule, as construed by the ERB. The State continues to have the responsibility to allocate positions to the proper classes. Absent evidence, no rule or contract provision should impinge on that responsibility. The downward reclassifications here are corrections of prior misclassifications. This correction should not be barred.
It was not improper for the State to "tailor" the PD's to class specifications. Barker was attempting to structure the duties and responsibilities of positions as he wanted them to be in the future, when the reorganization was completed. It was not improper for him to look at class specifications for various classes, to see how positions might be classified, while he was determining the duties and authorities. Moreover, he did not write all the PD's here; most of the employees involved are outside his managerial jurisdiction. The evidence does not disclose what PD's he was talking about when he said he "tailored" the PD's. He did tailor Skryha's PD to help get her a classification higher than PR-1. Other than her position and possibly Asmann's, no evidence exists that he used class specifications to "tailor" other PD's. If the Union questions PD's, it must show what PD's were incorrect. The Union cannot stretch Barker's statement into invalidity of all PD's.
The Agreement does not allow the Arbitrator to second-guess classification decisions. Unless positions are essentially identical, it is not proper to look at other positions to determine whether a position was correctly classified. The issue is not why other positions are classified as they are; the issue is whether there is a proper basis for allocation of the position at issue. Absent proof of favoritism as the basis for classification, it is immaterial whether some other position is classified higher. The positions retained as PT-2's differ from those reclassified. There is no basis for saying those distinctions were not sufficient to support the higher classification of those PT-2's.
The timing of the reclassifications, after the close of the 1990 joint allocation process, does not make them arbitrary. By the terms of the 1990 process, future issues concerning work out of class and reclassification were to be handled under other provisions of the 1989-91 Agreement. No evidence exists that any of the 21 grievants here would have appealed their 1990 allocation if the allocation had been to their current class rather than PT-2. If they would not have appealed in 1990, the expiration of the special appeal process is irrelevant. One cannot conclude that they would have appealed in 1990, simply because they are now appealing. They had been PT-2's for two years, and saw fellow employees remaining at the PT-2 level.
No evidence exists of bad faith on the State's part in questioning the allocations that had been made in 1990. In 1990, the Division had no guidance beyond the class specifications in allocating positions. After being told to review the allocations, the Division used classification guidance that was not available in 1990. Had there been rational bases for allocation of all 48 positions as PT-2's, the Division could have decided to retain all 48 as PT-2's. The decision that PT-2 was not the appropriate class for many positions was rationally based.
The 1990 allocations, right or wrong, were made in good faith. No evidence exists that the Personnel Division questioned the allocation in 1991 only because the 1990 special appeal process had expired, or that it otherwise acted in bad faith. Only after review of these positions in 1992 did the Division conclude that some 1990 allocations were incorrect.
Mistaken allocations in 1990 did not constitute arbitrary action. The correction of those allocations could not be arbitrary simply because of the expiration of the special appeal process. The special appeal process was a temporary benefit, and the parties agreed that benefit would not last forever. There was finality in appeal time limits, appeal board decisions, and time limits for removing duties. No evidence exists that expiration of the process was intended to prevent correction of misclassification of positions.
The special appeal process focused on three areas--employees' rights to appeal allocations, the appeal board's right to select the best fitting class from two classes, and the agency's right to elect to remove duties where the appeal board selected the employee's proposed class. There is no basis for construing this specifically-focused appeal process as a bar to agency correction of incorrect allocations. Nothing in the process suggests that the allocations could never be questioned. Such a bar would impinge on the State's obligation to classify positions according to their duties, authority and responsibilities. Authority to disregard that obligation should be based only on clear contractual language so requiring. The expiration of the 1990 special appeal process did not make the 1993 reclassifications irrational or lacking a reasonable factual basis.
The positions of Asmann and Skryha should probably be reconsidered because they appear to perform different duties and higher level responsibilities than their PD's indicate. The record shows a rational factual basis for Burgio's allocation. The remaining 18 allocations were not really challenged on the ground of lack of rational basis.
The key issue here is whether downward reclassifications in 1993 can be accomplished despite lack of diminution in duties or responsibilities of the positions. It is unfortunate that neither State representatives in prior arbitration cases nor most of the arbitrators in those cases have researched ERB cases interpreting the language incorporated in Article 81. ERB decisions do not bind this Arbitrator, but they do state logical, persuasive legal precedent. ERB's interpretation should not be rejected out of hand, simply because a literal reading of the language appears to make a finding of change a condition precedent to reclassification. The only evidence of intent of the parties in incorporating this language indicates the parties intended to incorporate ERB case precedent.
The wording of Article 82 suggests the permissible scope of arbitration of downward reclassifications is very narrow. Downward reclassifications must be upheld if they have a rational factual basis. With the possible exception of Skryha and Asmann, the allocations here must be upheld.
The Union bears the burden of proof in this contract interpretation case. Under Article 82, the State's decision must stand unless it was "arbitrary." "Arbitrary" has been equated to "lacking a rational factual basis," or "taken without cause, unsupported by substantial evidence, or nonrational." The concept of "arbitrariness" in reclassifications has meaning only with reference to the standards of Article 81. If the State did not consider facts relevant to the contractual standard, or if it did not apply the criteria in that standard to the facts, its decision, of necessity, was arbitrary. If the State considered relevant facts and applied the proper criteria, the Arbitrator has no authority to second-guess the resulting classification decision.
In considering whether the State acted arbitrarily in making a particular reclassification, one must look at more than just whether the final step of the decision was arbitrary. Each step in the process--including the gathering of information on which the reclassification is based--must withstand scrutiny. The assessment of duties and responsibilities can only be based on facts. Where no reason exists to believe that the employee either is performing, or soon will perform, the duties as described, it is arbitrary to allocate the employee's position based on that description.
The standards for interpreting a collective bargaining agreement are well settled. Where the language is clear and unambiguous, the Arbitrator must give effect to the intent expressed in that language. That is so even where one party finds the result unusual, unexpected, or harsh. Evidence of past practice and bargaining history cannot alter the plain meaning of the language. However, bargaining history and past practice can shed light on ambiguous language, demonstrate a latent ambiguity in the language, or establish that the parties have agreed to a modification of the contract. Evidence of past practice is persuasive as to these matters only where the practice is of long standing, well understood, and mutually concurred in by the parties.
Disputed language does not stand alone, but must be read and interpreted as part of the contract as a whole. The fact that disputed language is subject to more than one interpretation does not necessarily mean it is ambiguous. Language may be deemed clear even though the parties disagree concerning its meaning. Where the language is susceptible to divergent interpretations, the preferred interpretation gives effect to all contractual provisions and avoids harsh or absurd results or a forfeiture.
Strictly speaking, there is no stare decisis in arbitration. However, past arbitral decisions interpreting contract language should not lightly be disregarded. Where arbitrators have consistently adopted a particular interpretation and the contractual language has remained unchanged, the parties' evident intent is to order their relationship in reliance upon that interpretation. In that situation, deference to prior interpretations furthers the important interests of stability and predictability. Arbitral interpretations of provisions in this State-wide contract, adopted for other agencies, apply with equal force to this agency.
The standard for reclassification in Article 81 is clear and unambiguous. It unequivocally requires a "significant" change in duties and responsibilities. Prior arbitration awards have so interpreted the language through several generations of the Agreement.
In questioning the meaning of this language, the State relies on ERB decisions involving the personnel rule that the parties incorporated in their Agreement as Article 81. In a 1978 decision, the ERB considered an instance in which the State concluded an unrepresented employee had been misclassified at the outset. The employee's duties and responsibilities had not changed, but the State changed his classification. The ERB found this action was not a "reclassification" within the meaning of the personnel rule. It therefore found statutory authority for the State to allocate the employee to the appropriate class. In a 1981 case, the ERB found a "narrow reading" of the personnel rule ran counter to ORS 240.215's requirement that the State allocate positions. It read the personnel rule to prohibit only de facto promotion or demotion when the position had been properly allocated.
The ERB decisions explicitly rested on statutory concerns. The parties did not incorporate ORS 240.215 in their Agreement, nor is there evidence of an intent to apply the rationale of the ERB decisions to reclassifications under Articles 81 and 82. Indeed, if that rationale applied, the State would have an obligation to correct misclassifications regardless of whether the employee was classified at too low or too high a level. Yet, in cases submitted for arbitration after those ERB decisions, the State argued that initial misclassification did not justify reclassification of positions covered by the Agreement absent a later "substantial" change. The Union acquiesced in that interpretation, and arbitrators adopted it. In light of the consistent strict interpretation of Article 81, the statutory considerations that caused the ERB to limit the reach of the earlier personnel rule simply do not apply in this contract interpretation case.
The State certainly has a strong interest in correcting misclassifications, whenever they occur. The Agreement counter-balances that interest against predictability, stability, and fairness. To do so, it limits the bases for reclassification and imposes a high burden of proof in challenging reclassification decisions. If either party now believes the balance should change, the means to that end is collective bargaining. The Arbitrator must apply the clear language of the Agreement.
By the parties' stipulation, the reclassification of 17 of the Grievants does not meet the test of Article 81. The remaining four Specialists have had only two changes in their work--the identity of (1) the persons to whom they recommend funding, and (2) the person who performs the ministerial task of filling out the papers when the funding is approved. By any test, the stipulated change in reporting and paperwork obligations was a minor evolution in duties. The clear language shows an intent not to permit such small changes to justify reclassification. In both common usage and legal parlance, "significant" equates to important, weighty, or meaningful. No basis existed for concluding that the Specialists' duties had significantly changed. Indeed, the State disavows any reliance on this change as a basis for their reclassification.
A further concern exists for some positions, independent of the issue of substantial change. Burgio's PD inaccurately apportions her time, and those for Skryha and Asmann admittedly underestimate their responsibilities. PD's prepared by Barker purportedly removed duties to tailor positions to lower-rated classifications, but Barker made no actual change in their duties. The intent of the reclassification language could not be subverted by simply proclaiming a desire to reduce duties. Assuming it was proper in September 1992 to take a purely predictive "snapshot" of future duties, the State could not rely on that "snapshot" when it took no steps to implement it. That is particularly so where simultaneous downsizing was making positions more, not less, responsible.
It is unnecessary and inappropriate for the Arbitrator to decide if the PT-2 or other classifications best suit the Grievants' duties and responsibilities. In a large organization with multiple classifications, it may be "rational" to allocate any given position to any of several classifications. Examination of the class specifications here shows great similarities in duties, but differences in emphasis. Indeed, simply by re-writing the PD's for unchanged positions, CMH was able to achieve changes not just in grade, but in the series to which particular positions were allocated.
On this record, it cannot be determined what phrasing best describes Grievants' duties and responsibilities. It is sufficient there has been no significant change in them since the 1990 allocation decision. Under the clear language of the Agreement, the employees could not be reclassified under Articles 81 and 82 unless their duties and responsibilities changed significantly.
In view of the above, it is concluded that the reclassifications were arbitrary. As agreed by the parties, Grievants must be returned to their former classification of PT-2 and made whole for any losses occasioned by their reclassification.
1. The downward reclassification of the Grievants was arbitrary, and thus in violation of Articles 81 and 82 of the collective bargaining agreement.
2. As a remedy, Grievants shall be returned to their former classification of Program Technician 2 and made whole for any losses occasioned by their reclassifications.
 Although the reclassification decision was made during the term of the 1991-93 Agreement, it became effective during the term of the 1993-95 Agreement. The reclassification language is identical in the two documents. It is therefore unnecessary to determine which Agreement to apply.
 For ease of reference, Appendix A lists the affected employees by name, new title, and new Salary Range. An asterisk (*) next to the name indicates that the employee is included in the above stipulation. Where an employee was identified as working under a supervisor who testified at the hearing, the name of the supervisor is shown.
 The Union has withdrawn the grievance as to three downgraded PT-2 positions, pending further review of those positions by the State.
 Put another way, it might be "rational" to demote employees for any number of reasons other than a change in duties. In lean times, mass demotions could reduce the budget. However, that would not be a "rational" basis for reclassification under Articles 81 and 82. Reclassification reflects a change in the appropriate classification. A reclassification that violates the standards of Article 81 is necessarily "arbitrary" for purposes of Article 82. An alternative interpretation would render meaningless the criteria for reclassification.
 The 1990 reclassification process demonstrates the parties' ability to negotiate a procedure to allow reclassification even absent substantial change in duties and responsibilities. Here, too, the State could have proposed mutually-agreed reclassifications, even absent a significant change in duties. However, this case involves unilateral reclassifications.
* By stipulation of the parties, "Since April 1, 1990, there has been no significant diminishing of duties or responsibilities of the positions ... and there has been no significant alteration of the positions that would lower the level of the duties or responsibilities of the positions."


Have you been charged with a drug related offence and need the assistance of a drug litigation lawyer? If you have been charged with possession, distribution, cultivation, or the manufacture of controlled substances, you will face a multitude of significant charges. The different charges or offences carry just as many penalties. Even a minute amount of a controlled substance can bring you more trouble than you might consider. Different penalties expressly apply for different controlled substances, as for varying amounts of substance. You do not even have to do anything wrong or suspicious to bring the rule of law down on you. Random roadblocks and road spot checks designed to catch drunk drivers or even a routine traffic stop can start a series of unfortunate events that only a drug litigation lawyer can navigate. The U.S. Drug Enforcement Administration (DEA) defines and assigns schedules from, I to V to controlled substances.
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Schedule II drugs are drugs or other controlled substances that have a high potential for abuse, have a currently accepted medical use, or abuse may lead to severe psychological or physical dependence. Schedule II Drugs include Cocaine, Methamphetamine, Ritalin, Focalin, Opium, Methadone, Oxycodone, Percocet, OxyContin, Percodan, Morphine, Dextroamphetamine, Dilaudid, Pure Hydrocodone, Seconal, Pethidine, Demerol, PCP, Levorphanol, Fentanyl, Opium, Oxymorphone, Pentobarbital, Nembutal, Amphetamines, Nabilone, etc.
Schedule III drugs are drugs or other controlled substances that have a potential for abuse less than the drugs in schedules I or II, have a currently accepted medical use, or show abuse may lead to moderate or low physical dependence or high psychological dependence . Schedule III Drugs include: Anabolic steroids, Talbutal, Butalbital, Buprenorphine, Dihydrocodeine, Ketamine/K, Xyrem, Hydrocodone/Codeine, Vicoprofen, Paracetamol, Vicodin/Tylenol 3, Marinol, Paregoric, LSA, etc.
Schedule IV drugs are drugs or other controlled substances that have a low potential for abuse relative to the drugs in schedule III, have a currently accepted medical use, or abuse may lead to limited physical dependence or psychological dependence relative to the drugs in schedule III . Schedule IV Drugs include Benzodiazepines, Xanax, Librium, Valium, Restoril, Temazepam, Rohypnol, Zolpidem, Ambien, Doloxene, Darvocet, Talwin, Phentermine, Pemoline, Modafinil, Aquachloral, Miltown, etc.
Schedule V drugs are drugs or other controlled substances that are only available for a medical purpose, have a low potential for abuse relative to the drugs in schedule IV, have a currently accepted medical use, or abuse may lead to limited physical dependence or psychological dependence relative to the drugs in schedule IV. Schedule V Drugs include: Cough suppressants containing small amounts of codeine, Medications containing small amounts of opium or diphenoxylate, Pregabalin, Lyrica, Pyrovalerone, Diphenoxylate, Lomotil, Difenoxin, and Motofen (when mixed with atropine to make it unpleasant to grind up, cook, and shoot up). Otherwise, it is a Schedule II substance.