No DFR Breach When Fire Union Balances Competing Priorities Of Members

Written on 08/06/2022
Will Aitchison

Craig Gault is a firefighter with the City of Portland, Oregon, and is a member of the bargaining unit rep­resented by the Portland Firefighters’ Association. In 2019, Gault became a Fire Investigator, a job that required specific training. Under Oregon law, Fire Investigators are a form of police officer, and carry firearms.

Shortly before Gault became a Fire Investigator, the Association filed a grievance challenging the City’s change in the procedure for selecting firefighters for call shifts. Within a few days, the Fire Marshal notified the Fire Investi­gators that, because of the Association grievance, “Management has agreed to return to the status quo” that “Fire Investigators will not be allowed to work overtime in Emergency Operations.”

Numerous meetings occurred between the City and the Association over the issue. Gault weighed in during November 2018, when he was in train­ing to be an Investigator, but was not yet sworn or assigned as an Investiga­tor. Gault, who was known as a “call shift hawk” (in that he signed up for as many call shifts as possible) emailed the Association to oppose the grievance, arguing that the Association lacked a written policy to support the position that Investigators were not permitted to work Emergency Operations call shifts. The Association asked for the issue to be placed on a six-month trial period for Investigators to work call shifts under limited conditions.

While the six-month trial was successful, some Investigators believed that the procedure did not meet their needs, in part because the relevant call shift opportunities became available shortly before they had to be worked, and the electronic notices of call shift availability sometimes arrived late at night, disrupting spouses’ sleep. Gault, now an Investigator, filed a grievance challenging the denial of call shift opportunities.

The Association met with Gault and other Investigators to discuss various options, including expanding the ability of Investigators to work short notice call shifts. More discussions followed, but Gault was not satisfied. Eventually, Gault filed an unfair labor practice charge with Oregon’s Employment Relations Board when the Association’s Grievance Committee elected not to pursue his grievance to arbitration.

The Board dismissed Gault’s com­plaint. The Board began with the obser­vation that “we note that Gault volun­tarily dismissed the City from this case, effectively acknowledging that there was no contractual breach that would be the basis for a meritorious grievance. Thus, there can be no legitimate argument that the Association breached its duty to fairly represent Gault by not taking his admittedly non-meritorious grievance to arbitration. That alone is sufficient to dispose of the claim.

“Moreover, the record shows that Association officials were heavily in­volved in addressing the issues raised by Gault’s grievance even before it was filed. Indeed, the City/Association call shift procedures were changed December 20, 2018, to address, in part, the concerns of Gault and the other Investigators regarding the ability to work call shifts. We determine that Association officials were not biased against Gault and were fully informed of the issues relevant to Gault’s grievance. Gault was fully informed of the process, fully involved in the process, and had repeated oppor­tunities to provide evidence and plead his case to the Association.

“The grievance proceeded through the Grievance Committee process on a timeline that was not unusual. We conclude that the Association conducted a reasonable good-faith investigation.

“When Association officials decided not to take Gault’s grievance to arbitra­tion, those officials were fully informed of the call shift issue. Their knowledge of the issues was broadened by review of the matter by Association counsel and her subsequent opinion letter. The grievance was carefully evaluated and considered, and the decision that it lacked merit was a reasonable one.

“In addition, Gault’s admitted purpose of the grievance was not to enforce or interpret the collective bargaining agreement. Instead, it had the internal union political goals of changing the views of Association lead­ership regarding an issue that could pit one group of bargaining unit members against another. Gault’s internal union political goal was to tilt that balance towards himself and a few other highly compensated employees and away from a much larger number of lesser com­pensated employees. Nothing in this process indicates that the Association’s decision not to pursue the grievance was arbitrary, discriminatory, or made in bad faith.”

Gault v. Portland Firefighters’ As­sociation, 2022 WL 2077926 (Oregon ERB 2022).

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