Letter to ROBERT ROMO-HAYDEN TALBOT-SHELLY LOMAX-EVEYLYN MINOR-LAWRENCE

Station Manager Romo;

This is my response to the “warning” letter from you and TriMet.

Before I respond to the letter itself I want to make the following comments. I find the personal meetings a waste of my time for two reasons:

1-The warning letter had already been written. There is no reason to discuss anything if the punishment has already been decided. To force me to attend a meeting where the outcome is already decided instead of mutually discussing the issue at hand is completely unproductive. It is also a waste of scarce TriMet resources required to cover my run while I attend.

2-I also find that I am having a hard time trusting your comments. I feel like you are attempting to misrepresent the actual situation.

Now to the letter

On December 17, 2010 there was a conversation between a TriMet Operator and TriMet

Dispatch which you posted on your blog. Although dispatch radio communication is an open

airway, the effect your postings had on your coworker outweighs any reason why someone

would want to post that event for the world to hear. As soon as management was aware of the postings I asked you to take it down. You did as asked

There was never any discussion about my “capturing” over the air dispatch calls in a disciplinary context. As a matter of fact I saw Josh Collins at a board meeting where he mentioned that he had seen the dispatch audio captures posted on my blog but gave no indication that this was in any way a violation of TriMet policy. The only time dispatch calls have been mentioned is in this letter of reprimand.

 I can recall many incidents where TriMet has recorded audio and/or video of employees. TriMet has released these recordings to the public, allowing them to be posted and or broadcast with no regard to the employee being offended, embarrassed, and distraught just before reporting to work to perform job duties. Footage from security cameras on buses, trains, and platforms has frequently been released to the media and played on the news without any indication of consent of the people depicted.

 As another example, TriMet had recorded a telephone conversation between a TriMet Operator and TriMet Dispatcher then allowed this recorded to be played by training to demonstrate why an operator is not allowed to talk on the phone and drive. This was played to many employees and though no names had been mentioned many employees knew who the operator was.

Additionally, TriMet TV (http://www.youtube.com/user/TriMettv) also shows operators, passengers, and other TriMet personnel in their videos. While in some videos it’s obvious that the people shown knew they were being recorded and therefore their consent can be implied, in other videos this is not apparent.  Does TriMet obtain “express permission” to use their images?

 As you acknowledged, when I was informed that the dispatch call in question upset a coworker, I removed the posting in the interest of adhering to a respectful workplace. However, I feel it is reasonable to request clarification of this policy, in particular if there are different standards to which operators are held versus management, training, marketing, or other TriMet employees. As it stands now it seems there are inconsistencies with how this policy is enforced for operators.

Continuing:

coworker outweighs any reason why someone

would want to post that event for the world to hear

You obviously did not see the video. Here is a screen shot of the video itself:

If you had seen the video, the intent behind posting would be clear. It was illustrating the unsafe working conditions created by TriMet and why Neil McFarlane’s attempt to reduce our health care coverage is questionable ethically. I was wondering if maybe Neil himself might have had a hand in this warning letter.

---

{On December 21, 2010 we met to talk about another posting you made about a different coworker. You stated that you would like to not have that person on your blog but you were not going to stand by and let this person slander, intimidate, or bully you on her blog. When I advised that you could file an HR complaint about this coworker you stated that this process is too much trouble.}

I am confused over why this is in the letter at all and what it actually means?
In any event, Ellen Fox continues violating me with impunity. I have informed you that she is making my job unsafe and causing me worry and concern. She is also projecting the idea that Trimet hires and retains criminals, which is what she is accusing me of, criminal activity.

Once again I would like to question the means by which TriMet enforces HR policies involving Employee Conduct (HR 166), Respectful Workplace (HR 171), and Internet Communications and Postings (HR 202). Am I to understand that TriMet will take action to enforce these policies only when an HR complaint is filed? If I do not take action through HR to file a complaint, is it correct that TriMet’s official response is to do nothing even though a manager has been made aware of a violation of these policies as the operator in question is using my image and name without consent? As I stated before I am ready and willing to follow TriMet policies but I would also like it clearly stated how these policies apply to all TriMet employees in the interest of fairness.

{On December 1,2009 you were given a performance counseling that contained explicit instructions about your use of video devices and posting employee audio/video images without express consent from the customers or coworkers. The letter referred to HR 202 Information Technology poli..gY,Jnternet Use and Communications: "Protocolfor internet communications and posting requires that: (bullet 5) you must obtain express permission of any TriMet employee or customer before making audio or visual recordings of them OR using such recording in an internet posting.}

In the original meeting I was informed that while ON DUTY I could not record any images or audio without permission of any other TriMet personnel. I was further informed that I could not do it OFF DUTY either. The conversation and the letter refer to MY PRESENCE in situations where I could record people. There was no talk at the meeting, nor mention in the first letter about anything in the PUBLIC DOMAIN. (insert below from original letter)

The last sentence in the statement above clearly indicates that I am no longer recording employees in the workplace, which is in accordance with all TriMet policies.

Attempts to now state that DISPATCH CALLS were included in the first letter are false!

After this conversation in December of 2009, I have been following the guidelines set by TriMet. However, all subsequent discussion pertaining to the audio capturing of dispatch calls falls outside the scope of what had been covered by TriMet. First, I was not personally present for the dispatch calls and did not personally record any of the people involved. Second, the audio capturing of radio broadcasts transmitted by governmental, civil defense, public safety, police or fire communications system that is readily accessible to the public is explicitly permitted under ORS 165.540, section 7. Therefore, I am within my rights as a citizen to capture this audio and republish it.

In the interest of a positive workplace, when I was informed that a call upset a coworker and was asked by management to remove it, I did, which you acknowledge. However, I violated no Oregon law, and I violated no TriMet policy. If legally permissible activities pertaining to open-air radio broadcasts, including but not limited to scanning, monitoring, capturing, or republishing are contrary to TriMet’s goals of operation, then I request an amendment to TriMet’s policy in this area to prevent further miscommunications on the subject.

.The next section of your letter that I object to:

You stated in our meeting that if it is already in a public domain then it is "free game." This is

incorrect.

I am not sure how you came to conclusion that “this is incorrect”. As I have already pointed out, there is no reference to public domain material that I had not personally recorded. You offer no explanation as how you came to the conclusion “this is incorrect”.

I also have concerns about the implications of this statement.   Are you stating that if Mary Fetsch appears on the evening news to make a statement, I cannot re-post the video from that news segment without first getting her explicit permission? Is audio/visual content from public events, such as TriMet board meetings, the opening of the Civic Drive platform, or safety events such as “Be Seen, Be Safe” against policy to post even though all of those can be freely covered by the media and other area bloggers? As I’m sure you are aware, our buses and trains are among the most photographed features in Portland, and many photographers post their work online on sites such as Flickr, Youtube, and Twitter. Are you saying that I would be in violation of TriMet’s policy by re-posting any of these photographs, even though they were not personally recorded by me and had been originally published online by a non-TriMet employee? I am very skeptical of the legality of this prohibition!

“Your prior performance counseling was due to a series of actions by you that

demonstrated a lack of respectful, courteous and professional conduct toward your coworkers.

This included surreptitious videotaping and recording of coworkers. For this reason, you were

put on express notice that you would not be able to publicly post information about coworkers

or customers without their express permission.”

I am confused as to why you would completely ignore the first letter which clearly states

The first meeting was absolutely not about my “lack of respectful, courteous, and professional conduct”!

I have no idea why you would intentionally make a statement like the one above when it was completely obvious that the purpose of the first meeting was to continue safe driving habits that I was already practicing and to address potential distractions! It seems an intentional distortion to now state otherwise

I strongly object to the statement completely. The connotation is made that I am trying to do something to HURT people! Nothing is further from the truth!  How many complaints have actually been received by employees and/or passengers about me filming or taping them? You refused to provide any information about the basis of your groundless accusation.

Let me conclude that I find this warning letter bizarre, unwarranted, and lacking a sufficient basis for the accusations contained within. It’s a 180 degree turn around from my previous encounters with management over my at-home behavior.

Your warning letter is full of distortions and inaccuracies.

I have already asked the ACLU to look into this, and

I am in the process of completing a Bureau of Labor Relations complaint and having my personal attorney look into this matter.

Al Margulies

STEP 2 REPORT

As the meeting with Jay got going, it became apparent that he had been convinced that I had been “warned” to get express permission before “making” an audio or video recording of any Trimet employee.

I then endeavored to explain to him that “making” meant my physical presence at the workplace with my camera, on or off duty.  He was under the impression that “making” means using any visual or auditory file where ever it may appear, including public domain material.

I then attempted to explain that there had never been any discussion around my use of public domain material until the letter from Robert Romo, where he made the statement “that is incorrect”.

The first letter had absolutely no reference to public domain material, but Jay seemed to think that “making” means posting anything, weather I personally made it or not.

“I am responsible for anything I post on my blog” is what I remember him saying. And if I post anything that uses pictures etc without permission then I am violation of HR202. (I continue to believe that this is absolutely not legally enforceable but that will require a court action)

I also tried to reference the HR investigation, which clearly delineated “scope” of policy with its ultimate ruling.

A-Not on Trimet equipment

B-Not on company time.

C-Not protected information.

D-I did not represent myself as speaking for Trimet.

Jay was not interested in any of that.

We wrestled back and forth about these issues. By the end of the meeting it did appear that he had opened up his mind to my point of view. He requested further information, which I have sent to him

.

So we will see, Jeff Ackerson seemed to think it went as well as could be expected, and he thinks Jay is a good judge of facts.

RESPONSE TO JAY JACKSONS REQUEST FOR MORE INFO

Hello Jay-

Appreciate your time and open mindedness in this procedure.
Here is the National Labor Relations board ruling.
Pay particular attention to this section please:

"The NLRB complaint also alleged that the company maintained overly-broad rules in its employee handbook regarding blogging, Internet posting, and communications between employees, and that it had illegally denied union representation to the employee during an investigatory interview shortly before the employee posted the negative comments on her Facebook page.

Under the terms of the settlement approved today by Hartford Regional Director Jonathan Kreisberg, the company agreed to revise its overly-broad rules to ensure that they do not improperly restrict employees from discussing their wages, hours and working conditions with co-workers and others while not at work, and that they would not discipline or discharge employees for engaging in such discussions. "

Original link to the NLRB:

http://www.nlrb.gov/news/settlement-reached-case-involving-discharge-facebook-comments

AP story about it:

http://rantingsofatrimetbusdriver.blogspot.com/2011/02/feds-settle-case-of-woman-fired-over.html

And here is the video itself, {NO PUBLIC VIEWING ALLOWED}

You will see the video is critical of Neil MacFarlane’s attempt to change our health care coverage. I am clearly using this video to illustrate our abusive working conditions, and discussions such as this are protected under the NLRB ruling. There was obviously no "intent" to create any sort of disrespectful workplace for the person whose voice is in that video

I also contend that Trimet's internet's rules are most definitely "overly broad" and need to be more specific in nature.

All the discussions and letters were about my PHYSICAL PRESENCE when filming at Trimet.
There was never any mention or hint that public domain material (such as over the air dispatch communications) were part of that agenda.

Anybody can listen and publish an over the air communication, whether it be police, fire, or Trimet.

How can I can I obtain "express permission" when I have no idea who it was on that dispatch call?

To this day I have no idea who that was.
Thanks for your consideration into this matter.
Al

LATEST UPDATE IS HERE!