National PELRA Teams With ORPELRA to File Amicus Brief in Ongoing Port Firefighters’ ULP Challenge to Port’s Decision Against Costly Accommodations for Vaccine-Exempt Firefighters

By Jill D. Leka and Jennifer C. Caliva, Clark Baird Smith

This past March, NPELRA, together with the Oregon chapter, ORPELRA, filed a brief of amici curiae in Airport Fire Fighters’ Association, IAFF, Local 43 v. Port of Portland, ___ Or. App. ___ (A178710) (Ct. App. 2023) voicing its support of the Oregon Employment Relations Board’s decision to deny an unfair labor practice filed by the Union. In October of 2021, the Airport Fire Fighters’ Association, IAFF Local 43, filed an unfair labor practice against the Port of Portland arguing that the Port refused to collectively bargain in good faith over its decisions regarding minimum staffing and accommodations for religious exemptions from the vaccine mandate for health care workers in Oregon.

After the COVID-19 virus sparked a global public health emergency, in August 2021, Oregon Governor Kate Brown adopted a temporary administrative order that required health care workers (inclusive of first responders) to receive vaccinations against COVID-19. The order permitted employers to grant exceptions to employees for medical or religious reasons and instead opt to routinely test for the virus. The Port met with each firefighter that filed for a religious exemption to gather additional information to aid in granting the exceptions and subsequently determine what accommodations were available for each employee. The Port approved the firefighters’ religious exemptions, allowing the firefighters to avoid the COVID-19 vaccine.

However, after a long process of attempting to carve out different policies to allow the 14 religiously exempted firefighters to continue working, the Port found that there were no accommodations possible without creating an undue hardship on the Port.  As such, the firefighters were exempted from the vaccine but were not permitted to return to work. As a result of having 14 firefighters out on leave, the Port, concerned about staffing, enacted a temporary policy to maintain minimum manning via  personnel transfers, moving of Kelly days and vacation days, a voluntary sign-up sheet to staff the Engine, and changes to regular shift assignments. The Union filed an unfair labor practice complaint alleging an improper implementation of the vaccine mandate, failing to provide union representation at the individual in-person accommodation meetings, changing the status quo regarding minimum staffing, and for creating a staffing crisis.

In April 2022, the Employment Relations Board concluded that the Port did not commit an unfair labor practice when it did not have union representation available for employees during the meetings to discuss the employee requests for religious exceptions, as Weingarten rights were inapplicable in the context of those meetings. The Board also found no violation of the parties’ memorandum of understanding requiring the Port to consider all medical and religious exception requests when the Port declined to provide reasonable accommodations for the 14 firefighters with approved religious exemptions. The Board came to this conclusion because the parties’ course of dealing did not indicate that the parties had mutually agreed that all employees with approved exceptions must be accommodated. The Board also concluded that the Port did not make any unilateral changes that required bargaining because the Port made no changes to the status quo with respect to minimum staffing, as it was clear that both the Port and the Union understood that the Port would try to schedule the number of employees agreed upon under minimum staffing as outlined in the contract as soon as feasibly possible.

The Union subsequently filed a Petition for Judicial Review of the Board’s decision to the Court of Appeals in May of 2022. The Union argued that the absence of the 14 religiously exempted firefighters had a significant impact on staffing, and that this temporary change established a unilateral change in the established minimum staffing practice. The Union also argued that the Board therefore misapplied ORS 243.650(7)(f), which provides that staffing levels that have a significant impact on the safety of the employees constitutes a mandatory subject of bargaining. The Union insisted that the Port was required to notify the Union in writing of the anticipated changes to minimum staffing because the changes should have imposed a duty to bargain, as the changes to staffing practices are mandatory subjects of bargaining. The Union further argued that the Board’s decision was contrary to its own precedent of COVID-19 related cases finding that changes to a policy enacted because of the pandemic constituted a change to the status quo. Finally, the Union insisted  that the religiously exempted employees should have had union representation when meeting with the Port because the purpose of the meetings was to gather information to determine whether employees would receive approved exceptions.

In response, NPELRA and ORPELRA argued in their amicus brief that the award of the Oregon  Employment Relations Board be upheld to maintain the essential principles of labor law. Regarding the minimum staffing argument, the Associations argue  that a public employer is permitted to temporarily respond to changes that arise out of the entities’ operations and working conditions without the response constituting a unilateral change to the status quo, and that such changes should not trigger an obligation to bargain. They also point out that public employees are not entitled to union representation at information-gathering meetings and to hold otherwise would risk overturning the long-established precedent set by Weingarten. The Port’s meetings with each employee, the brief argues, were solely to discuss and gather information for the employees’ requests for religious exceptions to the COVID-19 requirement. Weingarten rights, on the other hand, only apply to meetings that are either investigatory or one that an employee would reasonably anticipate could lead to discipline.

The parties continue to await a ruling from the Court of Appeals of the State of Oregon. Stay tuned.