City Required To Bargain Over Change In Pension Board Rule

Firefighters working for the City of Portland, Oregon Fire Bureau are members of Local 43 of the International Association of Fire Fighters. Most Local 43 members are covered by the City’s Fire and Police Disability and Retirement Fund, which is governed by an appointed board.

In 2006, the Disability Fund and the Fire Bureau notified approximately 16 medically-restricted firefighters that they had been selected to participate in a new return-to-work policy. Under the Return-To-Work program, disabled firefighters were required to participate in mandatory EMT basic certification as a predicate to assignment to “restricted duty” positions. When the City rejected Local 43 demand to bargain over the new policy, Local 43 filed an unfair labor practice complaint against the City.

Oregon’s Employment Relations Board found that the enactment of the policy violated the City’s obligation to bargain in good faith. While the Board concluded that the decision to adopt a light-duty work program was not mandatory for bargaining, there were impacts of the decision that were in fact subject to bargaining.

The Board commented that “the City’s decision to implement a return-to-work program affects numerous working conditions that are mandatory subjects for negotiations, including salary, workload, promotional opportunities, and job security. The City created four new jobs as a part of the return-to-work program and set salary levels for those jobs.
“Implementation of the return-to-work program also impacts bargaining unit employees’ workloads, and the general types of work to be performed by a class of employees and the amount of such work required in a defined period of time concerns a mandatory subject of bargaining.

“The method by which employees are selected for the return-to-work positions also affects a mandatory subject of bargaining. The return-to-work program also impacts a number of job security issues. The program specifies procedures for recalling workers on medical layoff. The order in which the employees are recalled from layoff is a mandatory subject of bargaining.”

The City contended that even though the Disability Fund was an arm of the City of Portland, it was prohibited from bargaining over matters under the control of the Disability Fund because the Fund was a separate entity of the City of Portland. The Board was unconvinced, holding that “we note that the Disability Fund was created by City Charter. The state collective bargaining law takes precedence over local legislation. We reject the City’s argument that the Disability Fund is an independent entity, unrelated in any way to the City. The Disability Fund, the Fire Bureau, the Police Bureau, and the Bureau of Human Resources are all departments within the City, created by the City, funded by the City, staffed in accordance with City policies, and advised by the City Attorney’s office. We have the authority to direct the City to direct its departments to comply with the good faith bargaining obligation invoked by law. The City is not prohibited from bargaining about matters under the authority and control of the Disability Fund.”

Portland Fire Fighters’ Association v. the City of Portland, Case No. UP-14-07 (Or. ERB 2009).

This article appears in the July 2009 issue