ORS 243.706
Agreement may provide for grievance and other disputes to be resolved by binding arbitration or other resolution process

  • powers of arbitrator

(1)

A public employer may enter into a written agreement with the exclusive representative of an appropriate bargaining unit setting forth a grievance procedure culminating in binding arbitration or any other dispute resolution process agreed to by the parties. As a condition of enforceability, any arbitration award that orders the reinstatement of a public employee or otherwise relieves the public employee of responsibility for misconduct shall comply with public policy requirements as clearly defined in statutes or judicial decisions including but not limited to policies respecting sexual harassment or sexual misconduct, unjustified and egregious use of physical or deadly force and serious criminal misconduct, related to work. In addition, with respect to claims that a grievant should be reinstated or otherwise relieved of responsibility for misconduct based upon the public employer’s alleged previous differential treatment of employees for the same or similar conduct, the arbitration award must conform to the following principles:

(a)

Some misconduct is so egregious that no employee can reasonably rely on past treatment for similar offenses as a justification or defense to discharge or other discipline.

(b)

Public managers have a right to change disciplinary policies at any time, notwithstanding prior practices, if such managers give reasonable advance notice to affected employees and the change does not otherwise violate a collective bargaining agreement.

(2)

In addition to subsection (1) of this section, a public employer may enter into a written agreement with the exclusive representative of its employees providing that a labor dispute over conditions and terms of a contract may be resolved through binding arbitration.

(3)

Notwithstanding subsection (1) of this section, when an arbitration proceeding involves alleged misconduct by a sworn law enforcement officer of any law enforcement agency, as those terms are defined in ORS 131.930 (Definitions), and the arbitrator makes a finding that misconduct has occurred consistent with the law enforcement agency’s finding of misconduct, the arbitration award may not order any disciplinary action that differs from the disciplinary action imposed by the agency, if the disciplinary action imposed by the agency is consistent with the provisions of a discipline guide or discipline matrix adopted by the agency as a result of collective bargaining and incorporated into the agency’s disciplinary policies.

(4)

In an arbitration proceeding under this section, the arbitrators, or a majority of the arbitrators, may:

(a)

Issue subpoenas on their own motion or at the request of a party to the proceeding to:

(A)

Compel the attendance of a witness properly served by either party; and

(B)

Require from either party the production of books, papers and documents the arbitrators find are relevant to the proceeding;

(b)

Administer oaths or affirmations to witnesses; and

(c)

Adjourn a hearing from day to day, or for a longer time, and from place to place.

(5)

The arbitrators shall promptly provide a copy of a subpoena issued under this section to each party to the arbitration proceeding.

(6)

The arbitrators issuing a subpoena under this section may rule on objections to the issuance of the subpoena.

(7)

If a person fails to comply with a subpoena issued under this section or if a witness refuses to testify on a matter on which the witness may be lawfully questioned, the party who requested the subpoena or seeks the testimony may apply to the arbitrators for an order authorizing the party to apply to the circuit court of any county to enforce the subpoena or compel the testimony. On the application of the attorney of record for the party or on the application of the arbitrators, or a majority of the arbitrators, the court may require the person or witness to show cause why the person or witness should not be punished for contempt of court to the same extent and purpose as if the proceedings were pending before the court.

(8)

Witnesses appearing pursuant to subpoena, other than parties or officers or employees of the public employer, shall receive fees and mileage as prescribed by law for witnesses in ORS 44.415 (Fees and mileage of witnesses) (2).

(9)

As used in this section:

(a)

“Discipline guide” means a grid that is designed to provide parameters for the level of discipline to be imposed for an act of misconduct that is categorized by the severity of the misconduct and that take into account the presumptive level of discipline for the misconduct and any aggravating or mitigating factors.

(b)

“Discipline matrix” means a grid used to determine the level of discipline to be imposed for an act of misconduct that is categorized by the severity of the misconduct, according to the intersection where the category of misconduct and the level of disciplinary action meet. [1973 c.536 §12; 1995 c.286 §5; 1999 c.75 §1; 2020 s.s.1 c.18 §1]
Note: The amendments to 243.706 (Agreement may provide for grievance and other disputes to be resolved by binding arbitration or other resolution process) by section 7, chapter 541, Oregon Laws 2021, become operative not later than November 1, 2022. See sections 4 (4) [243.812 (Commission on Statewide Law Enforcement Standards of Conduct and Discipline) (4)] and 11, chapter 541, Oregon Laws 2021. The text that becomes operative not later than November 1, 2022, is set forth for the user’s convenience.
243.706 (Agreement may provide for grievance and other disputes to be resolved by binding arbitration or other resolution process). (1) A public employer may enter into a written agreement with the exclusive representative of an appropriate bargaining unit setting forth a grievance procedure culminating in binding arbitration or any other dispute resolution process agreed to by the parties. As a condition of enforceability, any arbitration award that orders the reinstatement of a public employee or otherwise relieves the public employee of responsibility for misconduct shall comply with public policy requirements as clearly defined in statutes or judicial decisions including but not limited to policies respecting sexual harassment or sexual misconduct, unjustified and egregious use of physical or deadly force and serious criminal misconduct, related to work. In addition, with respect to claims that a grievant should be reinstated or otherwise relieved of responsibility for misconduct based upon the public employer’s alleged previous differential treatment of employees for the same or similar conduct, the arbitration award must conform to the following principles:

(a)

Some misconduct is so egregious that no employee can reasonably rely on past treatment for similar offenses as a justification or defense to discharge or other discipline.

(b)

Public managers have a right to change disciplinary policies at any time, notwithstanding prior practices, if such managers give reasonable advance notice to affected employees and the change does not otherwise violate a collective bargaining agreement.

(2)

In addition to subsection (1) of this section, a public employer may enter into a written agreement with the exclusive representative of its employees providing that a labor dispute over conditions and terms of a contract may be resolved through binding arbitration.

(3)

Notwithstanding subsection (1) of this section, when an arbitration proceeding involves alleged misconduct by a sworn law enforcement officer of any law enforcement agency, as those terms are defined in ORS 131.930 (Definitions), and the arbitrator makes a finding that misconduct has occurred consistent with the law enforcement agency’s finding of misconduct or, if applicable, consistent with a finding of misconduct by a civilian or community oversight board, agency or review body, the arbitration award may not order any disciplinary action that differs from the disciplinary action imposed by the law enforcement agency or the civilian or community oversight board, agency or review body, if the disciplinary action imposed by the law enforcement agency, or the civilian or community oversight board, agency or review body was in accordance with the uniform standards adopted by the Commission on Statewide Law Enforcement Standards of Conduct and Discipline established under ORS 243.812 (Commission on Statewide Law Enforcement Standards of Conduct and Discipline).

(4)

In an arbitration proceeding under this section, the arbitrators, or a majority of the arbitrators, may:

(a)

Issue subpoenas on their own motion or at the request of a party to the proceeding to:

(A)

Compel the attendance of a witness properly served by either party; and

(B)

Require from either party the production of books, papers and documents the arbitrators find are relevant to the proceeding;

(b)

Administer oaths or affirmations to witnesses; and

(c)

Adjourn a hearing from day to day, or for a longer time, and from place to place.

(5)

The arbitrators shall promptly provide a copy of a subpoena issued under this section to each party to the arbitration proceeding.

(6)

The arbitrators issuing a subpoena under this section may rule on objections to the issuance of the subpoena.

(7)

If a person fails to comply with a subpoena issued under this section or if a witness refuses to testify on a matter on which the witness may be lawfully questioned, the party who requested the subpoena or seeks the testimony may apply to the arbitrators for an order authorizing the party to apply to the circuit court of any county to enforce the subpoena or compel the testimony. On the application of the attorney of record for the party or on the application of the arbitrators, or a majority of the arbitrators, the court may require the person or witness to show cause why the person or witness should not be punished for contempt of court to the same extent and purpose as if the proceedings were pending before the court.

(8)

Witnesses appearing pursuant to subpoena, other than parties or officers or employees of the public employer, shall receive fees and mileage as prescribed by law for witnesses in ORS 44.415 (Fees and mileage of witnesses) (2).

(9)

As used in this section, “civilian or community oversight board, agency or review body” means a board, an agency or a body:

(a)

Designated by a municipality or a law enforcement agency in performing duties related to investigating allegations of officer misconduct or reviewing police policies and practices; or

(b)

Created to oversee disciplinary matters concerning law enforcement officers pursuant to a city charter or ordinance for which a measure that included the question of whether to establish the board, agency or body was referred to and approved by the people of the city at an election held on or after July 1, 2020.

Source: Section 243.706 — Agreement may provide for grievance and other disputes to be resolved by binding arbitration or other resolution process; powers of arbitrator, https://www.­oregonlegislature.­gov/bills_laws/ors/ors243.­html.

Notes of Decisions

Where collective bargaining contract between union and county contained mandatory grievance procedures, ERB was without authority to interpret contract without requiring that parties bring matter to arbitration. AFSCME v. Lane County Commissioners, 45 Or App 161, 607 P2d 1212 (1980), Sup Ct review denied, on reconsideration 46 Or App 645, 612 P2d 759 (1980)

Findings made by arbitrator that are beyond scope of collective bargaining agreement are not part of arbitration “award.” Deschutes County Sheriff’s Association v. Deschutes County, 169 Or App 445, 9 P3d 742 (2000), Sup Ct review denied

Proper inquiry in determining whether employer may decline to enforce arbitration award on public policy grounds is whether award itself contravenes public policy, not whether underlying conduct of employee violates public policy. Salem-Keizer Association of Classified Employees v. Salem-Keizer School District 24J, 186 Or App 19, 61 P3d 970 (2003)

Where police officer used deadly force, police department discharged officer from employment and arbitrator found that officer’s use of deadly force was not misconduct and ordered department to reinstate officer, this section’s public-policy exception to enforceability of arbitrator’s decision does not apply because that exception is triggered only when arbitrator finds that officer engaged in misconduct. Portland Police Association v. City of Portland, 275 Or App 700, 365 P3d 1123 (2015)

Law Review Citations

49 WLR 105 (2012)

243.005
Definitions for ORS 243.005 to 243.045
243.015
Life insurance for police and firefighters
243.025
Issuance of $10,000 life insurance certificate
243.035
Premiums and administrative costs to be budgeted and paid by public employers
243.045
Police and firefighters considered common group for certain purposes
243.055
Exemption from requirements of ORS 243.005 to 243.045 for certain public employers
243.057
Role of executive director
243.061
Public Employees’ Benefit Board
243.066
Officers
243.105
Definitions for ORS 243.105 to 243.285
243.107
Employees of public universities eligible to participate in benefit plan
243.125
Powers and duties of board
243.129
Participation in benefit plan by local government
243.135
Health benefit plans for eligible employees
243.140
Health benefit and dental plans for persons operating foster homes
243.142
Application for federal waiver
243.144
Health benefit plan coverage requirements
243.145
Board authority with respect to health benefit plans
243.156
Coverage of adult disabled children
243.160
Eligibility of retired officer or employee to participate in dental benefit plan
243.163
Eligibility of former member of Legislative Assembly to participate in group benefit plan
243.165
Public Employees’ Benefit Account
243.167
Public Employees’ Revolving Fund
243.170
Contributions for job-share employees limited
243.185
Transfer of moneys from General Fund for payment of costs of health benefit plans
243.200
Participation of self-pay groups in benefit plans
243.205
Reports
243.215
Certain eligible employees permitted to receive employer contributions for health benefit plans of their choice
243.221
Options that may be offered under flexible benefit plan
243.223
Rules for flexible benefit plans
243.252
Payment of cost for employees or retirees
243.256
Reimbursement methodology for payment to hospitals
243.275
Additional benefit plans authorized
243.285
Salary deductions
243.291
Plan eligibility
243.296
Requirements when board offers long term care insurance plan
243.302
Grouping retired and nonretired employees for health insurance coverage
243.303
Local government authority to make health care insurance coverage available to retired officers and employees, spouses and children
243.305
Policy of affirmative action and fair and equal employment opportunities and advancement
243.315
Director of Affirmative Action
243.317
Definitions for ORS 243.317 to 243.323
243.319
Written policy regarding workplace harassment
243.321
Written policies and procedures regarding investigation of report of workplace harassment
243.323
Prohibition against entering into agreement with employee that prevents employee from discussing workplace harassment
243.325
“Public employee” defined
243.330
Leaves of absence for athletic competition
243.335
Reimbursement to public employer
243.401
Definitions for ORS 243.401 to 243.507
243.411
Deferred Compensation Fund
243.416
State Treasurer as fund custodian
243.421
Investment program for fund
243.426
Accounts
243.428
Forfeited payments
243.435
Plan contents
243.440
Salary reduction for deferred compensation plan
243.445
Employee choice of plans
243.450
Disclosure statement
243.460
Effect of deferred compensation on current taxable income and on retirement programs
243.462
Option to defer compensation on after-tax basis
243.465
Rollover distribution of deferred amounts to beneficiary
243.470
Administration of deferred compensation program
243.472
Costs of plan administration assessed against participants
243.474
Investment of local government plan assets through investment program
243.476
Compliance with federal requirements
243.478
Plan administration agreements
243.482
Immunity of governmental agencies from liability for plan administration or investment of funds
243.505
Deferred Compensation Advisory Committee
243.507
Payment of deferred compensation to alternate payee under judgment or order
243.550
Dependent care assistance plan
243.555
Definitions for ORS 243.555 to 243.575
243.560
Rulemaking
243.565
Administration of plan
243.570
Compensation reduction agreement
243.575
Computation of retirement and pension benefits
243.585
Accounting system allowances for dedication of salary
243.650
Definitions for ORS 243.650 to 243.809
243.656
Policy statement
243.662
Rights of public employees to join labor organizations
243.666
Certified or recognized labor organization as exclusive employee group representative
243.668
Legislative findings
243.670
Prohibition of actions by public employer to assist, promote or deter union organizing
243.672
Unfair labor practices
243.676
Processing of unfair labor practice complaints
243.682
Representation questions
243.684
Requirements for petition for representation
243.686
Representation elections
243.692
Limitation on successive representation elections
243.696
Bargaining representatives for executive department state agencies, judicial department and legislative department
243.698
Expedited bargaining process
243.702
Renegotiation of invalid provisions in agreements
243.706
Agreement may provide for grievance and other disputes to be resolved by binding arbitration or other resolution process
243.712
Mediation upon failure to agree after 150-day period
243.716
Use of volunteers not contracting out for services
243.722
Fact-finding procedure
243.726
Public employee strikes
243.732
Refusal to cross picket line as prohibited strike
243.736
Strikes by deputy district attorneys, assistant attorneys general and certain emergency and public safety personnel
243.738
Strikes by employees of mass transit districts, transportation districts and municipal bus systems
243.742
Binding arbitration when strike prohibited
243.746
Selection of arbitrator
243.752
Arbitration decision final
243.756
Employment conditions during arbitration
243.762
Alternative arbitration procedure under collective bargaining agreement
243.766
Board duties in administration of collective bargaining laws
243.772
Effect of collective bargaining laws on local charters and ordinances
243.778
Student representation when bargaining unit includes public university faculty
243.782
Representation by counsel authorized
243.796
Definitions for ORS 243.796 to 243.806
243.798
Reasonable time granted to designated representatives to engage in certain activities during work hours
243.802
Written agreements regarding grant of period of release time for public employees to serve as designated representatives
243.804
Reasonable access to employees within bargaining unit
243.806
Agreement authorizing public employer to make deductions from salary or wages of public employee
243.808
Arbitration concerning alleged misconduct by law enforcement officer
243.809
Determinations regarding alleged misconduct of law enforcement officer in accordance with uniform standards
243.812
Commission on Statewide Law Enforcement Standards of Conduct and Discipline
243.815
Optional retirement plan for certain academic and administrative public university employees
243.820
Agreement for payment of annuity premium or investment in stock of regulated investment company
243.830
Effect of agreement on retirement contributions and benefits
243.850
Qualified football coaches plan
243.860
Definitions for ORS 243.860 to 243.886
243.862
Oregon Educators Benefit Board
243.864
Duties
243.866
Benefit plans
243.867
Participation in benefit plan by local government
243.868
Benefit plans for other than health and dental benefits
243.869
Coverage of adult disabled children
243.870
Long term care benefit plans
243.872
Requirements when board offers long term care benefit plan
243.874
Flexible benefit plans
243.876
Payroll deductions
243.877
Health benefit plan coverage requirements
243.878
Board authority with respect to health benefit plans
243.879
Reimbursement methodology for payment to hospitals
243.880
Oregon Educators Benefit Account
243.882
Monthly participation assessment
243.884
Oregon Educators Revolving Fund
243.886
Limitations on district participation in benefit plans
243.910
Definitions for ORS 243.910 to 243.945
243.920
Assisting employees to obtain supplemental benefits
243.930
Board contributions
243.935
Employer assumption of full amount of employee contributions
243.940
Employee election
243.945
Employees not eligible for assistance
243.950
Public Safety Memorial Fund
243.952
Public Safety Memorial Fund Board
243.954
Definitions for ORS 243.954 to 243.974
243.956
Eligibility for benefits from fund
243.958
Initial application for benefits
243.959
Supplemental application for benefits
243.960
Application information public record
243.962
Determination of award amount
243.964
Order
243.966
Reconsideration
243.968
Payment of awards
243.969
Payment of lump sum benefits
243.970
Authority of board
243.972
Gifts
243.974
Designation of beneficiary form
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