Friday, September 28, 2012

Portland ordered to comply with reinstatement award

The Oregon Employment Relations Board (ERB) has ordered the City of Portland to comply with the award of Arbitrator Jane Wilkenson that found the City lacked just cause in terminating police officer Ronald Frashour.  Frashour had been dismissed for alleged excessive use of force in connection with the fatal shooting of a citizen. Arbitrator Wilkinson, in an award discussed here, concluded that Frashour had a reasonable belief that the citizen was attempting to retrieve a gun to shoot at others. The arbitrator concluded that the City had failed to establish a violation of its policies concerning use of force and ordered him reinstated with back pay. Disagreeing with the arbitrator’s decision, the City’s mayor announced that he would not implement the award. The Portland Police Association pursued the matter before the ERB, alleging a violation of applicable law. The Oregon statute makes it an unfair labor practice for a public employer “to violate the provisions of any written contract …or to [refuse to] accept the terms of an arbitration award…” There is an exception, however, for an award that “orders the reinstatement of a public employee or otherwise relieves the public employee of responsibility for misconduct” unless the award complies “with public policy requirements as clearly defined in statutes or judicial decisions including but not limited to policies respecting sexual harassment or sexual misconduct, unjustified and egregious use of physical or deadly force and serious criminal misconduct related to work.”
The City maintained that the reinstatement of Officer Frashour fell within this exception and that his reinstatement would violate public policy.  Rejecting this contention, the ERB found that once the arbitrator found that the officer had not engaged in misconduct there was no basis for a claim that the officer had been “relieved” of misconduct.
The ERB concluded:

          We have been told by the courts not to engage in a right-wrong analysis, but rather to ensure that the parties got what they bargained for- a binding decision by an arbitrator. … Although our deference to an arbitrator’s award is not unlimited, until such time as an award violates public policy as outlined in ORS 243.706(1), we are bound to uphold the award.
          In this case, the arbitrator determined that Frashour did not violate the City’s policies, and therefore did not engage in misconduct. The City does not have a lawful reason for refusing to implement the award.
The ERB’s decision can be found here. The City is considering an appeal of the ERB’s order. Oregon Live: Portland commissioners Fritz and Fish join Mayor Adams, commissioner Leonard in appeal of Frashour reinstatement.

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