American Federation of State v. Executive Department

*483 GILLETTE, P. J.,

concurring.

I join in the majority’s opinion in this case. I write this separate opinion solely to point out my concern about the meaning of ORS 243.746(3) and 243.752.

As the majority acknowledges, there was no verbatim transcript of the proceedings before the arbitrator. In my view, this lack of a transcript would have made it impossible for ERB to conduct its review of the arbitrator’s decision in the statutorily-mandated way, had the state not waived its right to a transcript by its silence. My opinion is based upon a consideration of the interaction of several provisions of ORS ch 243 and the particular language of one of those provisions, ORS 243.752, infra.

The statutory scheme permits employes (such as those involved here) who are not permitted to strike to obtain compulsory arbitration, including arbitration of wage demands. ORS 243.742(2). Any party or the ERB itself may initiate this arbitration. Ibid. The arbitrator, once chosen, is to conduct the hearing or hearings as provided in ORS 243.746(3):

"(3) The aribtrator shall establish dates and places of hearings. Upon the request of either party or the arbitrator the board shall issue subpenas. The arbitrator may administer oaths and shall afford all parties full opportunity to examine and cross-examine all witnesses and to present any evidence pertinent to the dispute.”

The arbitrator’s award is to be made according to certain specific criteria, as provided by ORS 243.746(4):

"(4) Where there is no agreement between the parties, or where there is an agreement but the parties have begun negotiations or discussions looking to a new agreement or amendment of the existing agreement, and wage rates or other conditions of employment under the proposed new or amended agreement are in dispute, the arbitration panel shall base its findings, opinions and order upon the following factors, as applicable:

"(a) The lawful authority of the employer.

"(b) Stipulations of the parties.

"(c) The interest and welfare of the public and the financial ability of the unit of government to meet those costs.

*484 "(d) Comparison of the wages, hours and conditions of employment of other employes performing similar services and with other employes generally:

"(A) In public employment in comparable communities.

"(B) In private employment in comparable com- , munities.

"(e) The average consumer prices for goods and services commonly known as the cost of living.

"(f) The overall compensation presently received by the employes, including direct wage compensation, vacations, holidays and other excused time, insurance and pensions, medical and hospitalization benefits, the continuity and stability of employment, and all other benefits received.

"(g) Changes in any of the foregoing circumstances during the pendency of the arbitration proceedings.

"(h) Such other factors, not confined to the foregoing, which are normally or traditionally taken into consideration in the determination of wages, hours and conditions of employment through voluntary collective bargaining, mediation, factfinding, arbitration or otherwise between the parties, in the public service or in private service.”

Not more than 30 days after the conclusion of the hearings,

"* * * the arbitrator shall make written findings of fact and promulgate a written opinion and order upon the issues presented to him and upon the record made before him, * * *. The findings, opinion and order shall be just and reasonable and based upon the factors prescribed in subsection (4) of this section.” ORS 243.746(5). (Emphasis supplied).

Reference to the "record” also appears in ORS 243.752, which provides, in pertinent part,

"A * * * decision of the [arbitrator] * * *, if supported by competent, material and substantial evidence on the whole record, based upon the factors set forth in 243.746(4) shall be final and binding * * *, and may be enforced * * *. in the circuit court for the county in which the dispute arose. * * *” (Emphasis supplied).

In the present case, one of the principal issues the state attempts to raise is the question of whether or not the arbitrator did, in fact, weigh all of the factors listed in ORS 243.746(4) and, further, whether, if he so weighed them, he *485 considered all of the evidence brought before him. If he did not, his award would not be "final and binding.” ORS 243.752, supra. ERB is faced with the problem of determining whether the order is "final and binding” because the employes’ representative bases its unfair labor practice upon the assumption that the order is "final and binding.” ERB therefore must normally determine whether or not the arbitrator did, in fact, consider the "whole record” (ORS 243.752) and decide the case solely upon "the record made before him.” (ORS 243.746(5)). The question is, can this be done without a transcript? The fact is that the state’s waiver in this case relieves us of the duty of answering that question. However, I am offering my own view of the answer with an eye toward avoiding a problem where, in some future arbitration, one side or the other asks that the proceedings be transcribed.

As I view it, the answer to this question lies in our interpretation of the legislature’s intent in using the phrase "on the whole record” in ORS 243.752. The phrase is really one of art, familiar to all practitioners of administrative law. It is a standard used in connection with judicial review of administrative cases: administrative decisions are not to be overturned on a factual basis so long as they are supported by "reliable, probative and substantial evidence in the whole record.” This was precisely the statutory standard of review which existed in Oregon’s Administrative Procedures Act (APA) at the time ORS 243.752 was enacted. Former ORS 183.480(7)(d). 1 Although ORS 243.752 uses "on” rather than "in,” I have no difficulty in determining the genesis of the labor statute’s language.

In my view, if the legislature used an APA term of art, it must have had in mind an APA-like meaning for the term. The term used is normally utilized as a standard of review and, as used in the context of this statutory scheme, it is a standard of review. Under the APA, such a review would require that the entire record, including the transcript, be before the reviewing body. In this case, the reviewing body was ERB. It had no transcript. It therefore could not carry out its function of determining that the arbitrator had properly considered the factors listed in ORS *486 243.746(4), and would have had to remand the matter to the arbitrator, 2 were it not for the state’s waiver by silence.

The present language is "substantial evidence in the record.” ORS 183.482(8)(c).

My only concern with this interpretation dealt with the making of a verbatim transcript before an arbitrator. Is this practical? Is it common? Appar-' ently, it is not unusual. See, e.g., Bernhardt v. Polygraphic Co., 350 US 198 , 204 fn 4, 76 S Ct 273 , 100 L Ed 2d 199 (1955); see also Eager, The Arbitration Contract and Proceedings; American Arbitration Association, Labor Arbitration Rules, Rule 21.