Workers can’t be stripped of union grievance rights just because they’re pursuing outside legal action, said the Oregon Supreme Court in a Nov. 27 ruling, and any collective bargaining agreement language that says otherwise is invalid and unenforceable.
The court’s decision ends an eight-year legal case that began after a professor at Portland State University’s Graduate School of Education complained to her department head that a colleague had been sexually harassed. When the professor later learned that her year-to-year employment contract would not be renewed for the following year, she turned to her union, American Association of University Professors (AAUP), and filed a grievance accusing PSU of discriminatory retaliation. But PSU refused to process the grievance — once it learned the professor was pursuing related discrimination claims with the state Bureau of Labor and Industries and the federal Equal Employment Opportunity Commission (EEOC). Under a clause in the union contract, the university had no obligation to continue the grievance process if a member tried to resolve the same matter in an outside agency or court. But AAUP asked the state Employment Relations Board (ERB) to declare that the clause itself was illegal, and ERB agreed. PSU challenged the ERB ruling at the Oregon Court of Appeals, and won. But AAUP appealed that ruling to the Oregon Supreme Court.
It’s a very significant decision, because a lot of contracts have this language.” — Elizabeth Joffe, attorney for AAUP
“The clause at issue in this case imposes a form of employer retaliation for protected conduct that reasonably would impede or deter an employee from pursuing his or her statutory rights,” wrote Supreme Court Justice Robert Durham. “The resulting harm is neither theoretical nor trivial, but qualifies as a substantive difference in treatment.”
Attorney Elizabeth Joffe, who represented AAUP in the case, said unions tend to oppose such clauses, whereas employers like them because they prevent workers from having “two bites at the apple,” and they can reduce employers’ legal expenses.
But for workers, the clauses create a dilemma. EEOC, for example, doesn’t pursue discrimination complaints if workers have waited more than 300 days to file, but union grievances can take longer than that to resolve. Meanwhile, workers know that unions will represent them for no charge in the grievance process, whereas even when attorneys take discrimination cases on a contingency fee basis, workers may have to pay a retainer to cover costs.
In the professor’s case, she delayed filing her outside case while the grievance was under way, which resulted in her complaint being dismissed as untimely. Later, when PSU was ordered to resume the grievance process, AAUP was able to complete its investigation into the facts of the grievance, and the union opted not to pursue the grievance further. The professor moved on and got a job at another university, and the union bargained the objectionable clause out of its next contract.
Now, the Oregon Supreme Court’s decision means union members throughout Oregon will have the right to pursue both an internal grievance process (if their union contract provides for one) and an external remedy. The decision’s immediate application is to public sector union members. But Joffe, the attorney for AAUP, said it will affect private sector union rights as well, since lower courts, guided by the higher court’s decision, would strike down any such clause in private sector union contracts if they’re challenged in court.
“I think it’s a very significant decision, because a lot of contracts have this language,” Joffe said. “It’s important that unions know they need to get it out of their contracts.”