By DON McINTOSH, Associate Editor

The return to work of 330 Portland Public Schools (PPS) custodians is still full of uncertainty, six months after the Oregon Supreme Court declared that their 2002 firing was illegal. When they’ll return, whether they’ll receive back pay, and what their pay and benefits will be, remain to be determined.

Four years ago, the school district’s leaders decided to contract out the work, citing the need to save money during a budget crisis. Portland Habilitation Center (PHC), a private nonprofit, proposed to do the work more cheaply by paying janitors as little as half what the in-house custodians made. PHC’s workers were represented by the same international union — the Service Employees (SEIU) — but different locals. The school custodians were represented by School Employees Local 140 and PHC janitors are members of SEIU Local 49. After the custodians were fired, Local 140 folded and later was merged with SEIU Local 503, where it represents school cafeteria workers.

SEIU fought the decision to contract out the custodians for six months, denouncing it as inhumane. Now, it looks like the district’s willingness to sacrifice the custodians may end up costing it — and taxpayers — tens of millions of dollars.

In 2002, Chad Debnum, chair of the Custodian Civil Service Board, warned the PPS Board that contracting out was illegal — it violated a 1937 state law that required the district’s custodians to be hired through civil service procedures using open competitive examinations to assure custodians are “fit for service and pose no danger to school children.”

Attorney James Coon of Swanson, Thomas & Coon made the same argument, and added a common sense suggestion: Since the union planned to challenge the legality of the contracting out, the district should hold off until the matter was settled. Otherwise, it would be liable for back pay and other costs.

The Board didn’t heed Debnum or Coon, and voted 5-2 to contract out.

Because the district’s in-house custodial budget was $15.6 million a year, and its bids from PHC were $9.6 to $10.8 million a year, the district says privatizing saved $5 million a year, or $20 million over the four years.

But that figure ignores an important fact: With the loaded gun of privatization pointed at their heads, the bargaining team for the custodians union had agreed to compensation cuts that totaled $2.4 million a year. So to go ahead with privatization was to save $2.6 million a year — a little over half a percent of the district budget — and only if the district prevailed in court.

Which it did, at first. The Employment Relations Board, and Multnomah County Circuit Court, and the Oregon Court of Appeals agreed with the district’s argument that the civil service law governed only how “employees” were to be hired, and because PHC’s janitors weren’t district employees, the law didn’t apply.

But Coon and Local 140 kept appealing, all the way to the Oregon Supreme Court, which ruled 4-3 in December 2005 that such an interpretation would make the 1937 law meaningless.

PPS attorneys asked the Court to rethink its decision. Instead, in April, the Court reiterated it: firing the custodians violated the law. Trouble is, the Court didn’t say what the district had to do next.

Cathy Mincberg, PPS chief operating officer, told the Labor Press the district expects to recall the custodians starting in July. The current PHC contract expires at the end of June, and won’t be renewed. The district will hire an extra manager to oversee the transition. As to wages and benefits, that’s not clear; the budget approved by the school board in April did not include money above what was going to PHC.

Mincberg said when the custodians return, the district will work to bargain a new contract with the union. As for back pay, Mincberg maintains the district doesn’t owe any— a position she says PPS attorneys have validated.

To attorney Mark Griffin of Griffin and McCandlish, that stance is preposterous. Griffin is representing the fired custodians in a federal lawsuit that was put on hold awaiting the outcome of the Civil Service Board lawsuit. Because it’s now been established that PPS fired its custodians illegally, Griffin said, the district must make the custodians “whole.” That means: offer them reinstatement, pay four years of back pay (minus any wages they’ve earned in that time), make four years of pension contributions, and reimburse them for any medical costs that would have been covered under their health insurance.

“The school district is going have to follow the law eventually,” Griffin said.

On May 20, the fired custodians met once again at the Portland office of SEIU Local 503, and were given forms to fill out to get their claim started. A steering committee elected in December is trying to locate all the custodians, and determine how many are willing to go back to work for PPS.

“There’s a whole lot of trust issues right now,” said custodian Grant Walter, former president of now-merged SEIU Local 140. “I used to be a very loyal district person. And even I don’t trust them.”

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