City of Portland v. Portland Fire Fighters' Ass'n
City of Portland v. Portland Fire Fighters' Ass'n
Opinion of the Court
The City of Portland (city) petitions for judicial review of a compliance order issued by the Employment Relations Board (ERB). ERB ordered the city to comply with an arbitration award and grant retirement and pension “service credit” to an employee. In a related case issued today, Portland Fire Fighters’ Assn. v. City of Portland, 267 Or App 491, 341 P3d 770 (2014), we affirmed ERB’s order on a complaint charging an unfair labor practice (ULP). That order required the city to comply with the same arbitration award by compensating the employee for disability benefits he had not received from the Fire and Police Disability and Retirement Fund (fund). In this compliance proceeding, ERB determined that the arbitrator’s “make-whole” award required the city to grant service credit toward the employee’s retirement and pension during the period that he was not receiving disability benefits. The city seeks judicial review of that order. We affirm.
The facts here supplement those recounted in the related case.
Following the association’s initial grievance, Hurley returned to work as a Low Hazard Inspector. In May 2012, he requested a pension estimate from the fund and discovered that he had not earned service credit towards retirement during the three years that his disability benefits were terminated. Under section 5-302 of the Portland City Charter, a firefighter is given service credit for (1) periods of service during active employment as a City of Portland firefighter,
The association filed a motion with ERB under ORS 243.766(4), arguing that the city had failed to comply with ERB’s order on the ULP complaint involving the arbitration award. The association requested that ERB initiate enforcement proceedings in circuit court.
ERB determined that the issue was not whether the fund must grant the requisite service credit, but whether the city is responsible under the arbitrator’s award to treat Hurley as if he had earned service credit during that period of time. The arbitrator had granted Hurley a make-whole remedy that required the city to treat Hurley, as the arbitrator phrased it, “as though [Hurley] had been reinstated as a fund member and entitled to receive disability benefits from the Fund.” ERB concluded, “To fully effectuate the arbitrator’s remedy, the City must treat [Hurley] as if he had received service credit * * *.”
The city seeks judicial review of ERB’s order. The city reprises its arguments that it could not restore service credit through the fund and that it was not told to do so. The city also repeats its argument from the related case that the arbitrator exceeded his authority in fashioning the award. We rejected the latter argument in Portland Fire Fighters’ Assn., 267 Or App at 499-500, and decline to address it
ERB is granted general authority under ORS 240.115 to “maintain such action or proceeding at law or in equity as it considers necessary or appropriate to secure compliance with this chapter and its rules and orders thereunder.” The board has jurisdiction under ORS 243.672(l)(g) to declare that a public employer’s refusal to implement a grievance arbitration award is an unfair labor practice. Under ORS 243.676(2)(c), ERB may, upon finding that an unfair labor practice has occurred, “[t]ake such affirmative action, * * * as necessary to effectuate the purposes of * * * [ORS] 243.650 to 243.782 [, the Public Employee Collective Bargaining Act * * *] [.] ”
ERB issued the compliance order consistently with this record and ERB’s statutory authority. The arbitrator’s award provided, among other things, that
“[t]he City shall reverse the termination of Grievant’s employment and reinstate whatever rights Grievant had as an employee before his termination.”
(Emphasis added.) The arbitrator made plain that the remedy was intended as a “make-whole” award. In construing that award, ERB permissibly interpreted the arbitrator’s award as including service credit to Hurley. ERB observed on reconsideration of the arbitration award that “the arbitrator did not reinstate Hurley as a Fund member” but only ordered the city to compensate him “as though [he] had been reinstated.” We find substantial reason and no error of law in that interpretation of the arbitration award. ERB did not err.
Affirmed.
The arbitration award and initial ERB proceedings are described in detail in Portland Fire Fighters’ Assn., 267 Or App at 492-98.
Under ORS 243.766(4), ERB may “[p]etition the appropriate circuit court for enforcement of any order issued by the board pursuant to ORS 243.650 to 243.782.”
Case-law data current through December 31, 2025. Source: CourtListener bulk data.