Alexander v. Amalgamated Transit Union, Case No. UP-022-20
| Decision Date | 15 April 2021 |
| Docket Number | Case No. UP-022-20 |
| Parties | ALEXANDER, Complainant, v. AMALGAMATED TRANSIT UNION, DIVISION 757, Respondent. |
| Court | Oregon Employee Relations Board |
(UNFAIR LABOR PRACTICE)
RECOMMENDED RULINGS, FINDINGS OF FACT, CONCLUSIONS OF LAW, AND PROPOSED ORDER
A hearing was held before Administrative Law Judge (ALJ) Jennifer Kaufman on November 24, 2020, by Zoom teleconference hosted in Salem, Oregon. The record closed on January 15, 2021, following submission of the parties' post-hearing briefs.
Bruce Hansen, an individual, Hillsboro, Oregon, represented the Complainant.
Whitney Stark, Attorney at Law, Albies & Stark, LLC, Portland, Oregon, represented the Respondent.
____________________
On August 5, 2020, Khris Alexander (Complainant) filed an unfair labor practice complaint against the Respondent, Amalgamated Transit Union, Division 757 (ATU or Union). On September 30, 2020, Complainant filed a first amended complaint. The issues are (1) Did ATU breach its duty of fair representation to Complainant, in violation of ORS 243.672(2)(a), by removing Complainant from his Executive Board position; (2) did ATU require dues deduction authorization as a condition of membership, thereby failing or refusing to comply with ORS 243.806(4)(b), in violation of ORS 243.672(2)(c); (3) by granting Complainant's email request to revoke his dues deduction authorization, did ATU fail or refuse to comply with ORS 243.806(6), in violation of ORS 243.672(2)(c); and (4) should ATU be required to pay a civil penalty, pursuant to ORS 243.676(4) and OAR 115-035-0075? For the reasons set forth below, we dismiss the claims against ATU.
The rulings of the ALJ were reviewed and are correct.
1. ATU is a labor organization within the meaning of ORS 243.650(13).
2. Tri-County Metropolitan Transportation District of Oregon (TriMet) is a public employer within the meaning of ORS 243.650(20).
3. Complainant, an ATU member, works as a bus operator for TriMet. Complainant first became a member of ATU in around 2001.
4. Shirley Block is the president of ATU. Block has been the president of ATU for about six years.
5. In June 2018, Complainant was elected to serve a three-year term as an Executive Board officer for ATU, representing employees who work at TriMet's Powell Transportation location. The general duties of Executive Board officers are to handle grievances and complaints, attend union meetings, communicate with members regarding union matters, and attend new member orientations.
6. In early 2020,1 a disagreement arose between Complainant and President Block involving Complainant's seniority status in a road supervisor training program. Complainant believed that he should have bumping rights over two other members in the program based on his overall years of service with TriMet, although the other individuals had greater seniority within the training program. In April, Complainant requested ATU to file a grievance over the issue. ATU declined because Block had entered into a Memorandum of Agreement with TriMet that contradicted Complainant's position regarding the appropriate order of seniority in the program.
7. Because Complainant was unhappy with President Block's decision regarding his seniority status, he posted critical comments about ATU on Facebook. He also circulated a petition for ATU members to sign stating that they would opt out of their union membership if Block did not change his seniority status.
8. On the morning of May 18, Complainant's disagreement with President Block was discussed during an Executive Board meeting at which Complainant was present. Complainant asked the Executive Board to override Block's decision. A motion was made to suspend Complainant as an officer and conduct an investigation regarding the actions he had taken against ATU, but the motion did not pass. Another motion was made to conduct an investigation into Complainant's allegation that his seniority rights had been violated. The motion passed unanimously. A committee of three ATU representatives was selected to conduct the investigation.
9. After the Executive Board meeting, at 10:08 a.m. on May 18, Complainant sent an email to the Executive Board stating, (Exh. R-5.) At 12:12 p.m., Complainant sent another email stating:
(Exh. R-5.)
10. At 2:23 p.m. on May 18, ATU Treasurer Mary Longoria responded, "Got it." Complainant remained in his position as an officer of the Executive Board.
11. ATU distributes a monthly newsletter, the "Labor Press," to all of its members. President Block authored a column in the June 5 issue of the Labor Press in which she spoke out against using "dues as a weapon." Block called such actions "deplorable" and stated that she would not be intimidated by such tactics. Block urged members to educate themselves and not to "let someone lead you down their own rabbit hole for their gain." Block further stated that ATU and its members are better than "stirring the pot on social media" and "threatening the livelihood of us all for the benefit of a few." (Exh. C-13 at 1.) The article did not mention Complainant by name, but he believed that Block's comments were directed at him.
12. On June 15, during an Executive Board meeting at which Complainant was present, the results of ATU's investigation into Complainant's seniority issue were presented. The investigation committee concluded that there was no basis for Complainant to file a grievance. A motion to accept the investigation committee's determination was passed.
13. ATU Administrative Secretary Danielle Bower handles new member applications and members' requests to opt out of union membership and dues payments (opt-out requests). Bower maintains membership records in a software database known as "MUMS," in which shedocuments status changes including retirements, changes of address, payment statuses, and opt-outs. Bower uses the MUMS database to generate a membership status report for Amalgamated Transit Workers International Union (the International Union) at the end of each month. Bower also prepares a monthly dues deduction authorization report that TriMet's payroll department relies on to process payroll deductions. Membership dues are withheld from the second pay period each month and applied as payment for the following month's membership dues. Bower must submit her dues deduction authorization report to TriMet no later than one week before the second payroll date of each month.
14. Administrative Secretary Bower's routine procedure for handling opt-out requests is to notify her contact at the TriMet payroll office to suspend further payroll deductions, code the employee as a "nonmember" in the MUMS database, and notify the Executive Board of the member's decision to opt out. Opt-out requests are generally made through a telephone call, personal visit, or letter. Before the events underlying the hearing in this matter, Bower could only recall receiving one opt-out request via email, which she received on December 12, 2019. Bower notified TriMet's payroll office to suspend that member's dues six minutes after she received that email.
15. At one time ATU had a disclaimer appearing at the bottom of its email correspondence stating that it did not accept emails as official communications, but that disclaimer no longer appears in ATU's emails. It is no longer ATU's practice to refuse acceptance of electronic documents. Particularly since the start of the COVID-19 pandemic, ATU regularly conducts business utilizing electronic forms of communication including email and Zoom.
16. On June 15 at 12:20 p.m., Complainant sent an email to Administrative Secretary Bower titled "opting out notice." The email states:
17. Upon receipt of Complainant's June 15 email, Bower immediately notified TriMet's payroll department of the change and coded Complainant as a nonmember in MUMS. At the time of Complainant's email, the next payroll deduction was scheduled to take place on June 22 and applied as payment for July membership dues. Bower believed that she was complying with Complainant's request to stop paying dues after July 1.
18. At 1:07 p.m. on June 15, Bower responded to Complainant's email, stating, (Exhs. C-3 at 1, R-8 at 2.) Bower copied President Block and various ATU officers and staff on the email. Bower did not otherwise communicate with Block or the Executive Board before processing Complainant's opt-out request.
19. At 2:21 p.m. on June 15, President Block responded, (Exhs. C-3 at 1, R-8 at 1.)
20. At 2:23 p.m. on June 15, Complainant responded, (Exhs. C-3 at 1, R-8 at 1.)
21. At 2:26 p.m. on June 15, Block responded, ...
To continue reading
Request your trial