Oregon College of Education Federation of Teachers v. Employment Relations Board

562 P.2d 552, 29 Or. App. 39, 95 L.R.R.M. (BNA) 2254, 1977 Ore. App. LEXIS 2221

• Court: Court of Appeals of Oregon
• Decided: April 11, 1977
• Docket: No. C-277, CA 7035
• Status: Published

Opinions

SCHWAB, C. J.

This is an appeal from an order of the Employment Relations Board (ERB) certifying that no labor organization had been elected by the faculty members of the Oregon College of Education (OCE) to represent them in collective bargaining. The principal issue is whether ERB erred in counting a challenged ballot which, when counted, produced a tie vote.

Three labor organizations sought certification as the bargaining representative for the OCE faculty: the Oregon College of Education Federation of Teachers (AFT); the American Association of University Professors (AAUP); and the Oregon State Employes Association. Those three organizations and OCE executed a consent election agreement, approved by ERB, defining the bargaining unit and those eligible to vote in the representation election.

In the first election, held October 21,1975, none of the three labor organizations received a majority of the votes cast. Accordingly, ERB scheduled a runoff election between the AFT and the AAUP, the two top candidate organizations. In the runoff election, held December 5, 1975, the AFT received 88 votes and the AAUP received 87 votes. There was also one challenged ballot. ERB concluded after a hearing that it should be counted. It was cast in favor of the AAUP. This meant the runoff election ended in an 88 to 88 tie. ERB treated this tie vote as a vote for no representation and entered the order described above. The AFT appeals.

The facts relevant to the challenged ballot are not disputed. It was cast by a person who, when an unexpected vacancy occurred, on September 29, 1975 assumed teaching responsibilities on a three-fourths-time basis. The person did not, however, receive a formal written offer of employment from OCE’s president until October 2,1975 and did not accept the offer in writing until October 11,1975. The person was then added to the payroll retroactive to September 29.

The consent election agreement executed by the labor organizations and OCE provided in part:

"1. That the following is an appropriate bargaining unit: "All employes of Oregon College of Education who hold academic rank and are regularly employed at .50 FTE [full-time equivalent] or more; excluding all positions properly excluded by law as supervisory or confidential employes.

«‡ ‡ Hí * #

"4. That eligible voters are employes in the bargaining unit employed at the time of the election and during the payroll period ending September 30, 1975” (Emphasis supplied.)

There is no question that the person who cast the challenged ballot was a member of the bargaining unit as defined by paragraph 1 of the agreement. The problem is whether that person was "employed * * * during the payroll period ending September 30, 1975” within the meaning of paragraph 4 of the agreement.

This court is divided over whether this presents a question of labor law or contract law. Representation elections pursuant to consent election agreements are common. Annotation, 69 ALR2d 1191, 1193-96 (1960); Annotation, 36 ALR 2d 1177 (1954); 48 Am Jur2d 346-49, Labor and Labor Relations §§ 485-89 (1970). Labor law is germane to the extent of encouraging such agreements and providing that they cannot be contrary to the rights or duties created by labor law. Any remaining issues — such as the present one of interpreting the agreement — is a question of contract law to the same extent as the interpretation of any other type of agreement. Stated differently, we reject the position taken in the dissent that we should rely on doctrines from labor law such as determining whether the person who cast the challenged ballot had a stake in the outcome. A new OCE teacher hired on October 1,1975 would have clearly had a stake in the outcome of the representation election; however, equally clearly under the terms of the consent election agreement that new employe would not have been entitled to vote.

Turning to the interpretation problem in this case, we hold that the person who cast the challenged ballot was not "employed * * * during the payroll period ending September 30, 1975.” Oregon Administrative Rule 580-41-010(1) of the regulations of the State Board of Higher Education provides that "members of the faculty * * * shall be appointed by the presidents” of the respective colleges and universities. On October 1 — after the agreed eligibility date — the dean sent a memorandum to the OCE president stating that he and the department head recommended the appointment of the person who cast the challenged vote and made further recommendations concerning academic rank and salary. On October 2 the OCE president wrote the person who cast the challenged ballot:

"The purpose of this letter is to make you an offer of a position * * *.

"Please let me know if the position is acceptable to you. Our two letters are necessary as a written record of the agreement.” (Emphasis supplied.)

On October 11 the person who cast the challenged ballot responded:

"This letter is to notify you of my acceptance of the position * * (Emphasis supplied.)

It follows that the person who cast the challenged ballot was not an employe in the sense of having a possible cause of action against OCE for breach of contract before October 11. And conversely, OCE would not have had a possible cause of action against the person who cast the challenged ballot for breach of contract before October 11. Employment being a contractual relationship, the person who cast the challenged ballot was not an employe within the meaning of the consent election agreement before October 11.

ERB’s contrary conclusion was based on a finding that the OCE president had delegated his appointing authority to subordinates and that the person who cast the challenged ballot was employed by those subordinates before the September 30 eligibility date. There is no substantial evidence in the record to support ERB’s finding of delegation. That finding is squarely contrary to the October 2 and October 11 correspondence between the OCE president and the person who cast the challenged ballot. All documents prepared by subordinates before September 30 were in the form of recommendations that the person who cast the challenged ballot should be employed.

Furthermore, we have previously interpreted similar State Board of Higher Education regulations to provide there is no authority to discharge below the university president level. Papadopoulos v. Bd. of Higher Ed., 14 Or App 130, 173-76, 511 P2d 854, Sup Ct review denied(1973), cert denied 417 US 919 (1974). As we read the present regulations, there is likewise no authority to hire below the university president level.

In summary, the challenged ballot was improperly counted because the person who cast it was not eligible to vote within the meaning of the consent election agreement. ERB should have issued the appropriate certification that the AFT had been elected the bargaining representative of the OCE faculty.

Reversed and remanded.