Walter v. Scherzinger

121 P.3d 644, 339 Or. 408, 2005 Ore. LEXIS 569, 178 L.R.R.M. (BNA) 2270
CourtOregon Supreme Court
DecidedOctober 13, 2005
DocketERB DR-4-02; CA A118491; SC S51669
StatusPublished
Cited by8 cases

This text of 121 P.3d 644 (Walter v. Scherzinger) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Walter v. Scherzinger, 121 P.3d 644, 339 Or. 408, 2005 Ore. LEXIS 569, 178 L.R.R.M. (BNA) 2270 (Or. 2005).

Opinions

[410]*410DE MUNIZ, J.

The issue in this case is whether, in accordance with the text of the Custodians’ Civil Service Law (CCSL), ORS 242.310 to 242.640 and ORS 242.990,1 the Portland Public School District (the district) must employ custodians and whether the district must do so consistently with the merit system set out in that law. The Service Employees International Union Local 140 (Local 140) and its president, D. Grant Walker (collectively “petitioners”), sought a declaratory ruling from the Employment Relations Board (ERB) that the district’s proposal to terminate its existing custodial workforce and contract for custodial services violated the CCSL and, therefore, was a prohibited subject of bargaining. The ERB concluded that the CCSL did not prohibit the district from contracting for its custodial services. Local 140 appealed that decision, and the Court of Appeals concluded, like the ERB, that the district could contract for custodial services notwithstanding the provisions of the CCSL. Walter v. Scherzinger, 193 Or App 355, 89 P3d 1265 (2004). We allowed Local 140’s petition for review, and, for the following reasons, we reverse the decision of the Court of Appeals and the declaratory ruling of the ERB.

We take the facts and positions of the parties from the Court of Appeals decision:

“At all pertinent times, [the district] employed approximately 340 custodians, assistant custodians, and custodial helpers represented by Local 140. In early 2002, [the district] faced existing and projected budget deficits, which led to what interim superintendent James Scherzinger characterized as a ‘mission-threatening moment’ for the district’s schools. In response to that financial situation, on February 5, 2002, Scherzinger sent a letter to Walter notifying him that [the district] was ‘proposing to subcontract out all of the custodial services currently being performed by members of the bargaining unit represented by Local 140.’
“[The district] offered to bargain with petitioners over the proposal. Petitioners objected to the proposal but [411]*411agreed to bargain with [the district] while reserving objections to the plan. On March 18, 2002, the [district] board adopted a budget based on the assumption that [the district] would contract out all custodial services and lay off the Local 140-represented employees effective July 1, 2002.
“In April 2002, petitioners requested an expedited declaratory ruling from [the] ERB to determine whether the contracting proposal was a prohibited subject of bargaining. * * * Petitioners argued that, because the CCSL provides [that] ‘the only legal method by which the District may hire custodial workers,’ the contracting proposal would violate the law. The essence of petitioners’ argument * * * is that (1) the CCSL describes a comprehensive and fully integrated merit-based system for the appointment and promotion of custodians and assistant custodians providing services to [the district]; (2) [the district]’s private contracting proposal would, effectively, bypass those protections, rendering the entire statutory design a ‘dead letter’; and (3) the legislature implicitly, but necessarily, precluded such a wholesale circumvention of the CCSL.
“[The district] responded that the contracting proposal did not violate the CCSL because the CCSL does not prohibit independent contracting arrangements — and, indeed, expressly applies only to ‘employees’ of [the district]. * * * Thus, [the district] reasoned that persons performing custodial services pursuant to private independent contracting arrangements would not be ‘employees’ and, consequently, would not be subject to the CCSL.
“[The] ERB adopted [the district]’s position. Applying the template for statutory analysis prescribed in PGE v. Bureau of Labor and Industries, 317 Or 606, 611, 859 P2d 1143 (1993), [the] ERB concluded:
“ ‘The CCSL is intended to apply to custodians who are employees of the District. Nothing in the law states that the District cannot subcontract custodial services; rather, the CCSL applies if the District decides to hire custodians as employees of the District. Thus, there is no conflict between the CCSL and the District’s proposal. The District’s proposal does not require it to violate the CCSL, because, as a threshold matter, for CCSL to apply, the custodians must be District employees.
“ ‘Petitioners emphasize various provisions of the CCSL that state [that] the District ‘shall’ do certain [412]*412things in connection with the employment of custodians, such as, certain required actions and procedures [that] the civil service board must follow filling vacancies and establishing classifications. * * * Petitioners argue that these statutory provisions would be rendered meaningless if the District contracts out custodial services. It is true that[,] if the District employs no custodians, these provisions cease to have effect. Still, the CCSL clearly was intended to cover only those custodians in the District’s employ. There is simply nothing in the law that extends its reach to independent contractors of the District, or that prohibits the District from subcontracting custodial services. The mandatory language of the CCSL, relied upon by Petitioners, takes effect only if custodians are employees of the District.
“‘* * * Petitioner^] contend[ ] that[,] if the legislature had intended the CCSL to be optional, it would have said so, as it did in these other laws. Petitioners’ argument, however, ignores the definitions of the CCSL that clearly limit its applicability to employees of the District. As stated above, while the language of the CCSL contains many ‘shalls,’ these provisions apply only to custodians who are District employees.
« * * * *
“ ‘Even if it were necessary to examine legislative history, the fact remains that nothing in the statute, or its legislative history, extends the CCSL’s reach to prohibit subcontracting. By the plain terms of the statute, its coverage is limited to employees of the District. If the legislature had intended to ban contracting with private firms for custodial services, or if it had intended to extend the coverage of the CCSL to private contractors of the District, it would have said so. It did not. We will not read a prohibition into the CCSL that simply is not there.’
“On judicial review, the parties reiterate their arguments to [the] ERB.”

Walter, 193 Or App at 357-59 (footnotes and citations omitted).

Like ERB, the Court of Appeals concluded that the CCSL does not prohibit the district’s proposal to terminate its [413]*413existing custodial workforce and contract for custodial services:

“[T]he CCSL does not preclude [the district’s private contracting proposal. Nothing in the CCSL’s text or pertinent context requires [the district] to hire persons providing custodial services as employees. Similarly, and concomitantly, nothing in the CCSL limits [the district’s ability to procure custodial services through contracts comporting with the public contracting laws.

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Walter v. Scherzinger
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Bluebook (online)
121 P.3d 644, 339 Or. 408, 2005 Ore. LEXIS 569, 178 L.R.R.M. (BNA) 2270, Counsel Stack Legal Research, https://law.counselstack.com/opinion/walter-v-scherzinger-or-2005.