Chapter 240

NOTES OF DECISIONS

Effect of Public Employes Relations Act is to modify authority of Personnel Division so that, while division retains responsibility for establishing general job salary grades and classifications, specific salary within each range which is paid to employe in public employe bargaining unit is subject to negotiation or arbitration under terms of ORS chapter 243. AFSCME v. Executive Dept., 52 Or App 457, 628 P2d 1228 (1981), Sup Ct review denied

COMPLETED CITATIONS: Beistel v. Pub. Employe Relations Bd., 6 Or App 115, 486 P2d 1305 (1971)

ATTY. GEN. OPINIONS: Changing regular eight-hour day and 40-hour week without overtime pay, (1972) Vol 35, p 1291; state agencies paying carpooling employes’ parking fees, (1974) Vol 36, p 1015; uniform collective bargaining agreements for like classes of employes, (1978) Vol 38, p 1694; employe classification of deputy public defenders, (1979) Vol 39, p 726

LAW REVIEW CITATIONS: 51 OLR 38 (1971); 16 WLR 341 (1979)

240.010

ATTY. GEN. OPINIONS: Authority of state agencies to enter agency shop or maintenance of membership agreements covering discharge of employes and payment of dues, (1971) Vol 35, p 824; changing regular eight-hour day and 40-hour week without overtime pay, (1972) Vol 35, p 1291; uniform collective bargaining agreements for like classes of employes, (1978) Vol 38, p 1694

240.015

COMPLETED CITATIONS: Beistel v. Pub. Employe Relations Bd., 6 Or App 115, 486 P2d 1305 (1971)

ATTY. GEN. OPINIONS: Appointing authority of Director of Transportation, (1975) Vol 37, p 336; appointing authority of Director of Commerce, (1975) Vol 37, p 494

240.055

COMPLETED CITATIONS: Beistel v. Pub. Employe Relations Bd., 6 Or App 115, 486 P2d 1305 (1971)

240.060

ATTY. GEN. OPINIONS: Right of a nonlawyer union business agent to represent a member before the board, (1972) Vol 35, p 1088; participation by ERB members in educational programs or other activities outside of time allocated to duties of full-time member, (1978) Vol 38, p 2177

LAW REVIEW CITATIONS: 51 OLR 15 (1971)

240.065

ATTY. GEN. OPINIONS: Right of a nonlawyer union business agent to represent a member before the board, (1972) Vol 35, p 1088

LAW REVIEW CITATIONS: 51 OLR 15 (1971)

240.086

NOTES OF DECISIONS

Where after long, exceptional service, petitioner only recently developed disqualifying characteristics in the area of supervision, the board properly overruled the public employer’s dismissal of him and ordered his demotion to the highest level nonsupervisory position. James v. Employment Div., 20 Or App 309, 531 P2d 710 (1975), Sup Ct review denied

The Employment Relations Board was without jurisdiction to hear a charge of sex discrimination. Phillips v. Dept. of Rev., 23 Or App 748, 544 P2d 196 (1975)

The Personnel Division is not required to set forth in job announcements its evaluative criteria to be applied in ranking those who meet the required qualifications. Paul v. Personnel Div., 28 Or App 603, 560 P2d 293 (1977)

The board may make a de novo review of the facts that were the basis of an appointing authority’s decision to discharge a public employe; overruling Phillips v. State Bd. of Higher Educ., 7 Or App 588, 490 P2d 5 (1971), Sup Ct review denied and Thompson v. Secretary of State, 19 Or App 73, 526 P2d 621 (1974), Sup Ct review denied. Fairview Hospital and Training Center v. Stanton, 28 Or App 643, 560 P2d 667 (1977)

Where Personnel Division had statutory responsibility for classification and compensation plans for classified service, Forestry Department did not have authority to promulgate directive binding division to include within restructuring-reclassification proposal request for salary increases for all employes placed into classification with higher salary range. Berry v. State Forestry Dept., 35 Or App 703, 582 P2d 473 (1978), Sup Ct review denied

In proceeding initiated by Oregon State Employes Association under this section, ERB lacked jurisdiction to determine whether Personnel Division hiring and promotion practices violated Merit System Law, where no specific “affected party” was named. OSEA v. Personnel Division, 36 Or App 353, 585 P2d 1 (1978)

Three month performance appraisal before layoff was reasonable under this section where applicable statutes and rules required only that performance appraisal be completed before layoff, that length of service and appraisal be considered, and that appraisals be used to determine order of layoffs. Duncan v. Law Enforcement Council, 37 Or App 119, 586 P2d 398 (1978), Sup Ct review denied

Where power was given by this section to Employment Relations Board to decide grievances, refusal by Department of General Services to submit matter to binding arbitration was not unfair labor practice. OSEA v. Dept. of General Services, 39 Or App 157, 592 P2d 562 (1979)

Making arbitration award unenforceable if it “is in violation of law” permits ERB to review only to determine if award itself would require violation of law and not to determine whether arbitrator’s underlying legal conclusions are correct. Federation of Oregon Parole Officers v. Corrections Div., 67 Or App 559, 679 P2d 868 (1984), Sup Ct review denied

Employment Relations Board authority to modify or set aside personnel action regarding management service employee is limited to action described under ORS 240.560. Knutzen v. Dept. of Insurance and Finance, 129 Or App 565, 879 P2d 1335 (1994)

ATTY. GEN. OPINIONS: Right of a nonlawyer union business agent to represent a member before the board, (1972) Vol 35, p 1088

240.145

NOTES OF DECISIONS

Under former similar statute (ORS 240.180)

State Accident Insurance Fund administrator was authorized to make rule specifying conditions under which unauthorized absence of employee would be considered implied resignation. McQuaid v. SAIF, 36 Or App 83, 583 P2d 572 (1978), Sup Ct review denied

ATTY. GEN. OPINIONS

Under former similar statute (ORS 240.180)

Changing regular eight-hour day and 40-hour week without overtime pay, (1972) Vol 35, p 1291

In general

Authority of Personnel Division to promulgate rules authorizing limited duration appointments, (1981) Vol 41, p 549

240.180

See annotations under ORS 240.145.

240.185

ATTY. GEN. OPINIONS: Higher Education service personnel budget under services and supplies category rather than personal services as included within full-time equivalent budgeted positions, (1980) Vol 41, p 233

240.195 to 240.210

NOTES OF DECISIONS

Where former state medical examiner brought civil rights deprivation suit following discharge, position was unclassified civil service position and examiner was at-will employee and did not have property interest in continued employment requiring due process at termination. Brady v. Gebbie, 859 F2d 1543 (9th Cir. 1988)

240.195

ATTY. GEN. OPINIONS: Sick leave and vacation leave provisions for exempt or unclassified academic service, (1974) Vol 36, p 1119

240.200

NOTES OF DECISIONS

ATTY. GEN. OPINIONS: Sick leave and vacation leave provisions for exempt or unclassified academic service, (1974) Vol 36, p 1119

240.205

ATTY. GEN. OPINIONS: Expenditure of monies for life and disability insurance, annual physical examinations, and physical fitness programs, (1978) Vol 38, p 1770

240.212

NOTES OF DECISIONS

240.215

NOTES OF DECISIONS

Where Personnel Division had responsibility under this section, [former] ORS 240.220, ORS 240.235 and ORS 291.258 for classification and compensation plans for classified service, Forestry Department did not have authority to promulgate directive binding division to include within restructuring-reclassification proposal request for salary increases for all employes placed into classification with higher salary range. Berry v. State Forestry Dept., 35 Or App 703, 582 P2d 473 (1978), Sup Ct review denied

LAW REVIEW CITATIONS: 51 OLR 22 (1971)

240.235

NOTES OF DECISIONS

Where Personnel Division had responsibility under this section, ORS 240.215, [former] ORS 240.220 and ORS 291.258 for classification and compensation plans for classified service, Forestry Department did not have authority to promulgate directive binding division to include within restructuring-reclassification proposal request for salary increases for all employes placed into classification with higher salary range. Berry v. State Forestry Dept., 35 Or App 703, 582 P2d 473 (1978), Sup Ct review denied

While Personnel Division retains power, pursuant to this section, to group all job positions into classes and adopt salary ranges, establishment of compensation plan can be subject for bargaining between state and labor organizations and individual wage rates for employes in collective bargaining units are to be set within negotiated ranges. AFSCME v. Executive Dept., 52 Or App 457, 628 P2d 1228 (1981), Sup Ct review denied

ATTY. GEN. OPINIONS: Authority for voluntary pension trust program for public employes not in education, (1971) Vol 35, p 998; changing regular eight-hour day and 40-hour week without overtime pay, (1972) Vol 35, p 1291

LAW REVIEW CITATIONS: 51 OLR 23 (1971)

240.240

NOTES OF DECISIONS

Management employee exclusion from ORS chapter 240 applies except where otherwise specifically provided by ORS chapter 240 statutes. Knutzen v. Dept. of Insurance and Finance, 129 Or App 565, 879 P2d 1335 (1994)

ATTY. GEN. OPINIONS: Authority for voluntary pension trust program for public employes not in education, (1971) Vol 35, p 998; sick leave and vacation leave provisions for exempt or unclassified academic service, (1974) Vol 36, p 1119; rulemaking authority concerning employes working for two or more appointing authorities, (1976) Vol 38, p 475

240.245

ATTY. GEN. OPINIONS: Sick leave and vacation leave provisions for exempt or unclassified academic service, (1974) Vol 36, p 1119; recovery of payments to deputy public defenders for unused vacation time upon termination because of incorrect advice as to employment status, (1979) Vol 39, p 26

240.250

ATTY. GEN. OPINIONS: Authority of Personnel Division to assume accrued sick leave of local government employe who enters state service, (1975) Vol 37, p 710

240.305 to 240.395

LAW REVIEW CITATIONS: 51 OLR 24 (1971)

240.316

ATTY. GEN. OPINIONS: Application of “trial service period” to employes initially appointed to state service position, (1980) Vol 40, p 506

240.321

NOTES OF DECISIONS

Provision of collective bargaining agreement giving present employes lateral transfer rights was valid under this section and fact that its implementation resulted in male succeeding female employe did not violate state affirmative action statutes. State Executive Dept. v. OPEU, 91 Or App 124, 754 P2d 582 (1988)

240.405 to 240.430

LAW REVIEW CITATIONS: 51 OLR 24 (1971)

240.410

NOTES OF DECISIONS

A probationary civil service employe is not entitled under statute or constitution to a pretermination hearing. Grimes v. Pub. Employe Relations Bd., 16 Or App 677, 519 P2d 1270 (1974)

240.430

NOTES OF DECISIONS

Three month performance appraisal was reasonable under this section and Personnel Division rule, which required only that appraisals be used in determining order of layoffs. Duncan v. Law Enforcement Council, 37 Or App 119, 586 P2d 398 (1978), Sup Ct review denied

240.505

See annotations under ORS 240.551.

240.551

ATTY. GEN. OPINIONS

Under former similar statute (ORS 240.505)

Changing regular eight-hour day and 40-hour week without overtime pay, (1972) Vol 35, p 1291

240.555

NOTES OF DECISIONS

Public officers were immune to suit by other public employe arising out of his dismissal. Donahue v. Bowers, 19 Or App 50, 526 P2d 616 (1974), Sup Ct review denied

Classified state employe who was dismissed without any pretermination procedural safeguards was entitled to an award of back wages and benefits until properly terminated. Tupper v. Fairview Hosp., 276 Or 657, 556 P2d 1340 (1976)

As used in this section, “misconduct” requires some degree of volitional conduct. Fairview Hospital and Training Center v. Moore, 28 Or App 637, 560 P2d 671 (1977)

Where transfer of employe within Manpower Planning Division was transfer to position in different city which was of different class or rank, employe’s refusal of transfer did not constitute “insubordination” within this section. Robbins v. Executive Department, 34 Or App 803, 580 P2d 194 (1978), Sup Ct review denied

Where, under this section, employe was dismissed for insubordination for refusal to transfer to Portland in reclassified position, and employe claimed that entire course of conduct was taken in bad faith, findings of fact on that issue were required to support conclusion of law that transfer was “for good of service.” Ashman v. Children’s Services Division, 37 Or App 865, 588 P2d 665 (1978)

As employe insubordination is value judgment to be determined by agency, case was remanded to Employment Relations Board for it to make its own independent conclusion as to that matter. Children’s Services Division v. Ashman, 50 Or App 161, 622 P2d 1126 (1981)

Where position, not employee, was moved from classified to unclassified service, there is no employee right to return to classified from unclassified service at conclusion of employee’s job. Brady v. Gebbie, 859 F2d 1543 (9th Cir. 1988)

ATTY. GEN. OPINIONS: Authority of state agencies to enter agency shop or maintenance of membership agreements covering discharge of employes and payment of dues, (1971) Vol 35, p 824; right of a nonlawyer union business agent to represent a member before the board, (1972) Vol 35, p 1088

LAW REVIEW CITATIONS: 51 OLR 24, 25, 26 (1971)

240.560

NOTES OF DECISIONS

The board does not have jurisdiction to hear charges of sex discrimination. Phillips v. Dept. of Rev., 23 Or App 748, 544 P2d 196 (1975)

Failure of supervising agency to instruct employee in proper appeal procedure does not waive requirement that appeal be filed directly with board within time limit. Lamb v. Cleveland, 28 Or App 343, 559 P2d 527 (1977), Sup Ct review denied

The Employment Relations Board is the tribunal before which all parties have the opportunity to present and rebut evidence relevant to a disciplinary action against a public employe, the tribunal that resolves any conflicts in the evidence, and the tribunal which draws inferences from the evidence; overruling to extent of inconsistency, Phillips v. State Bd. of Higher Educ., 7 Or App 588, 490 P2d 5 (1971), Sup Ct review denied and Thompson v. Secretary of State, 19 Or App 73, 526 P2d 621 (1974), Sup Ct review denied. Fairview Hospital and Training Center v. Stanton, 28 Or App 643, 560 P2d 667 (1977)

Where there was basis for discipline, but such basis was different from that upon which original sanctions were imposed on employe, matter would be remanded to Division for imposition of new sanctions in light of revised facts. Civil Rights Division v. Williams, 280 Or 595, 573 P2d 270 (1977)

“No reasonable employer” test, used under this section, is judicial interpretation of statutory division of responsibility between agencies and test does not construe delegative terms over which single agency has interpretive authority so as to invade agency’s province. Brown v. Oregon College of Education, 52 Or App 251, 628 P2d 410 (1981)

“No reasonable employer” test is to be applied by ERB in its fact-finding function in essentially same manner as reasonable person test is applied in negligence cases. Brown v. Oregon College of Education, 52 Or App 251, 628 P2d 410 (1981)

This section does not authorize the Employment Relations Board to set aside an employe dismissal for failure of a dismissing agency to comply with a personnel rule. Payne v. Dept. of Commerce, 61 Or App 165, 656 P2d 361 (1982); reconsidered, 62 Or App 433, 661 P2d 119 (1983) (former opinion adhered to.)

Where employee in unclassified service is fired, there is no statutory requirement that employee can be fired only for cause. Brady v. Gebbie, 859 F2d 1543 (9th Cir. 1988)

ATTY. GEN. OPINIONS: Right of a nonlawyer union business agent to represent a member before the board, (1972) Vol 35, p 1088

LAW REVIEW CITATIONS: 51 OLR 24 (1971); 55 OLR 351-354 (1976)

240.570

NOTES OF DECISIONS

Court held that branch manager of Adult and Family Services Division had constitutionally protected interest in continued employment, even though such interest was more limited than that held by classified employees. Wheaton v. Webb-Petett, 931 F2d 613 (9th Cir. 1991)

LAW REVIEW CITATIONS: 51 OLR 24 (1971)