Case No. FR-001-15
Order to Show Cause Answer
Dear ALJ Kehoe:
Complainant received your letter dated April 10, 2015 in which you stated that complainant did not allege any facts related to the ORS cited in the initial complaint and ordered to Show Cause as to why the complaint should not be dismissed.
Complainant wishes to amend the initial complaint to reflect an alleged violation of ORS 243.672(2)(d) which in part makes it an unfair labor practice for a public employee or for a labor organization to violate any written contract with respect to employment relations. Complainant inadvertently cited (2)(g), however, the description of the complaint identified the alleged violation against the union president for violating terms of the collective bargaining agreement .
Respondent Hansen claims that the contract language does not provide any direction about whether operator runs are chosen on a day-by-day or a weekly basis. Respondent Hansen’s claim is false. The manner in which how work has been posted and bid in accordance with the Collective Bargaining Agreement has remained unchanged for over 40 years. Changing that 40+ year practice has resulted in bus operators being unable to bid the run and days off of their choice, and has had a negative economic effect on some bus operators. TriMet has in the past, both during collective bargaining for successor agreements and during contract interims, tried unsuccessfully to get the Union to agree to “block runs” and change the collective bargaining agreement in respect to how work was bid.
Complainant has Standing
Complainant as a member of the TriMet bargaining unit represented by Respondent has standing and voted on the most recent collective bargaining agreement. Complainant also retains seniority as a bus operator and may bid a route at any signup should she desire to do so and bid out of her current position as Road Supervisor. Obviously the bus operators who signed the petition demanding that Respondent comply with the terms of the collective bargaining agreement in relation to work and how work is bid have standing as members of the bargaining unit and as operators harmed by the violation of the collective bargaining agreement.
The point Respondent misses is that a collective bargaining agreement was voted on and approved by the membership of the TriMet bargaining unit. There was no change to how work and days off were bid and assigned in the same manner spanning 40 years. For Respondent to change the terms of the collective bargaining agreement, Respondent must be in compliance with Article I, Section 1 of the Collective Bargaining Agreement. Respondent is not and was not in compliance when he agreed with TriMet to change the terms of the collective bargaining agreement in relation to how operators bid their work without membership approval.
There are several case examples in the past where certain provisions of the collective bargaining agreement had to be altered in response to a pilot project or experiment that both TriMet and the Union agreed to. In those cases, however, a membership vote was required and in most of those instances were contained in a collective bargaining agreement that was voted on by the membership prior to implementation of the project or experiment.
Authority to Enter Into Contracts
Respondents claim that the Union bylaws do not require the president of the local union to submit a collective bargaining agreement to the membership for ratification is false. Section 22 of the local union bylaws requires the wage committee, which the president is a member thereof, to draft and negotiate agreements between the local union and employers, subject to approval of the membership as provided in the Constitution and General Laws of the Amalgamated Transit Union, as amended.
Every collective bargaining agreement negotiated between TrIMet and the local union for the past 40 years, is and has been contingent upon being approved and ratified by both the TriMet Board of Directors and the TriMet membership of local ATU 757. In order to change any provision of the
agreement during a contract interim, it must be approved and ratified by both the TriMet Board of Directors and the TriMet membership of ATU 757.
Respondent would like the Oregon Employment Relations Board to believe that he can agree to any pilot program, project or experiment that alters provisions of the written collective bargaining agreement in place between the union and employer, and do it without membership approval. To accept that argument would mean there would be no reason or requirement for the membership to vote on collective bargaining agreements that affect their wages, benefits and working conditions, because the president of the local union has the exclusive authority to enter into an agreement that would change the collective bargaining agreement, without say of the members. That is not only false, but preposterous.
Respondent raises the issue of timeliness and claims that since Complainant nor the Board objected to the experiment that changed the terms of the collective bargaining agreement, they don’t have any objection now. Changing the agreement by restricting operators to bid their work differently than they have in the past in accordance with the collective bargaining agreement, which is effective each time a work sign-up is held, is not a one-time violation, but is a continuous violation.
Each time a new signup is conducted, operators face potential loss of seniority in choosing their work and their days off, which may affect their hours of pay, where they work and so on. Since this experiment was initiated, there have been two work sign-ups and the third is pending. Each signup may affect operators differently as compared to previous sign-ups, in regards to and loss of seniority, work and days off assignments, pay and other economic losses.
There is also no requirement for the executive board of the local union to act before a grievance can be initiated and pursued by a member. There has been a timely grievance filed over the “block run” experiment which was agreed to by Respondent Hansen, however, as mentioned previously, Respondent Hansen has refused or failed to process those grievances. Immediately after this experiment was initiated and bus operators learned that provisions of the collective bargaining agreement had been changed, several members attempted to grievances from Powell Garage. The practice in place by the Union directs members to file grievances through their property union Executive Board officer which in the case of Powell Garage was Dan Martin.
Sometime later when asked about the status of the grievances, Martin told members that they were not valid grievances since the Union agreed to the “block run” experiment. In fact these grievances and complaints were processed through the Union office. Martin was involved in negotiating the “block run” experiment and in fact since the experiment was implemented, has been removed from his bus operator’s duties, provided office space by TriMet and appears to be working fulltime on the block run experiment paid by TriMet.
Union’s Claim that it Fulfilled Its Duty of Fair Representation
The collective bargaining agreement currently in effect between TriMet and ATU 757 was voted on and approved by the TriMet bargaining unit members and by the TriMet Board of Directors in late 2014. There were no changes to provisions of the collective bargaining agreement outlining how transit operators bid their work assignment (runs) and days off. Respondent claims that the “block run” experiment agreement he signed with TriMet protects the seniority rights of members. In fact the experiment agreement violates member’s seniority rights in how they bid runs and days off. But further on, respondent admits that the experiment changes how operators bid their work by saying “Because the program creates a new system for bidding runs for operators…..” The party’s collective bargaining agreement, once negotiated, can only be changed or altered if both parties agree to reopen the collective bargaining agreement and negotiate changes, which if any, is subject to vote and approval by the TriMet bargaining unit members and the TriMet Board of Directors. Conclusion
Complainant has adequately showed cause relating to this complaint and has provided a claim for which relief can be granted by the Employment Relations Board. Complainant, et al seeks the Employment Relations Board to provide for a hearing to provide Complainant, et al to provide testimony and evidence to support their claim that Respondent Hansen violated the provisions of ORS 243.672(2)(d) in that he violated terms of the written collective bargaining agreement that was in effect between TriMet and ATU 757.
Shirley Block, et al