A member (Grievant) of the Portland, Oregon Fire Fighters’ Association was terminated in 2022 for seven allegations of misconduct. The allegation at issue in this dispute is that in 2014, the Grievant began interacting with a woman he met on a local Craigslist board. Although they never met in person, they communicated daily, and exchanged photographs of their fully clothed children. The woman at one point proposed a “child swap for sexual purposes.”
The Grievant failed to report the woman to the authorities, and instead continued pursuing her until his wife discovered their relationship. One of the bases for the Grievant’s discharge was that he “demonstrated a lack of moral character and brought discredit and reproach to himself and to the Fire Bureau.” The Arbitrator determined that the City proved that this conduct occurred, and that it violated the City’s employment rules and standards.
The Arbitrator also found that the Grievant failed to comply with his obligations as a mandatory child abuse reporter under state law. The Arbitrator concluded that discharge was too severe a penalty, given how much time had elapsed between the misconduct and the Grievant’s discharge, as well as his willingness to accept responsibility during the investigation. The Arbitrator sustained the grievance in part, reducing the discipline to a 30-day suspension. The City refused to reinstate the Grievant, alleging that doing so would violate public policy, and the Union filed a ULP charge with the state labor board.
The Oregon Employment Relations Board noted that the outcome of the ULP hinged on whether the City proved that the Grievant’s reinstatement “violated a clearly defined public policy expressed in statutes or judicial decisions.” The City alleged that the reinstatement violated (1) the state statute mandating reports of child abuse; and (2) a general state law requirement that civil service examinations only be administered to firefighters who possess good moral character. The Board rejected both arguments, finding the City to have violated state labor law by refusing to reinstate the Grievant.
The Board noted that the mandatory reporter law did not require a firefighter to comply with its requirements to remain employed, and the Board had earlier reached a similar conclusion for an employee of the Department of Human Services. After the previous case was decided, the state legislature considered, but did not ultimately pass, a law which would have prohibited the reinstatement of a public employee terminated for failing to comply with mandatory reporting obligations. As a result, the City failed to prove that there was a public policy prohibiting the reinstatement of a firefighter determined not to have complied with mandatory reporting requirements.
The City conceded that the relevant provisions of the civil service law did not apply to the City. Even if they did, the provisions applied only to firefighter examinations, not discipline. The City did not prove that the Arbitrator’s conclusion about the Grievant’s moral character qualified as a finding of a lack of moral character under the state law, nor did the City terminate the Grievant for violating that law. The Board ordered the City to comply with the arbitration award and reinstate the Grievant.
Portland Fire Fighters’ Association, IAFF Local 43 v. City of Portland, Case No. UP-063-23, 2024 WL 2933064 (Or. Emp. Rel. Bd., 2024).