By Kate Acheson
The Employment Relations Board of the State of Oregon (“ERB”) found in UP-023-12 that the City of Portland violated state law by refusing to implement Arbitrator Wilkenson’s award reinstating Officer Ronald Frashour. The ERB ordered the City to comply with the arbitrator’s award and to post notices of its violation due to its “calculated” avoidance.
The City of Portland terminated Officer Frashour for excessive use of force after a fatal shooting incident in 2010. The Officer’s bargaining unit disputed the termination, claiming Frashour reasonably believed the individual he shot was armed and was reaching for his weapon. Arbitrator Wilkenson agreed, finding the termination lacked just cause, and awarded Officer Frashour reinstatement with back pay. The City of Portland refused to comply with the arbitrator’s award and the officer’s bargaining unit appealed to the ERB.
Under Oregon law, it is generally an unfair labor practice for a public employer to refuse to accept the terms of an arbitration award. This rule does not apply if an arbitration award violates public policy by forgiving the misconduct of a public employee. “Because the parties have contracted to have disputes settled by an arbitrator,” review of labor arbitration is limited to the award itself, not the underlying fact or contract resolutions:
We have been told by the courts not to engage in a right-wrong analysis, but rather to ensure that the parties got what they bargained for- a binding decision by an arbitrator. … [U]ntil such time as an award violates public policy… we are bound to uphold [it].
Thus, the ERB must respect the arbitrator’s finding that there was no misconduct; Officer Frashour’s use of deadly force was reasonable.
Because an arbitration award violates public policy by forgiving the misconduct of a public employee and because there was no misconduct to forgive, the ERB found the City had no grounds to refuse to implement the arbitrator’s award. Thus, the ERB ordered the City to comply with the arbitrator’s award. In addition, because the ERB found the City’s actions were “calculated” in that “the city was clearly aware of [the] case precedent,” Portland was required to post notices of its violation. However, because the violation was not a repetitive action against the same bargaining unit, the ERB declined to impose a civil fine on the City.
The Oregon approach differs significantly from most states. Most states, Washington included, vest this jurisdiction in the courts. Here, the Oregon ERB did the job of the court to assess whether the arbitrator acted within her authority. Arbitration awards are deemed final, binding and are only subject to reversal if the arbitrator issued and award that violated public policy. In Oregon, the refusal to comply with an award, unlike most states, is treated as an independent ULP.
