Alexander v. Amalgamated Transit Union

• Decision Date: 24 May 2021
• Docket Number: Case No. UP-022-20
• Parties: ALEXANDER, Complainant, v. AMALGAMATED TRANSIT UNION, DIVISION 757, Respondent.
• Court: Oregon Employee Relations Board

ALEXANDER, Complainant, v. AMALGAMATED TRANSIT UNION, DIVISION 757, Respondent.

Case No. UP-022-20

EMPLOYMENT RELATIONS BOARD OF THE STATE OF OREGON

May 24, 2021

(UNFAIR LABOR PRACTICE)

RULINGS, FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER

Bruce Hansen, an individual, Hillsboro, Oregon, represented the Complainant.

Whitney Stark, Attorney at Law, Albies & Stark, LLC, Portland, Oregon, represented the Respondent.

On April 15, 2021, Administrative Law Judge Jennifer Kaufman issued a recommended order in this matter. The parties had 14 days from the date of service of the order to file objections. OAR 115-010-0090(1). Under this Board's rules, "[d]ocuments received after 5 p.m. shall be deemed filed with the Board the next business day." OAR 115-010-0033(1)(d). See also OAR 115-010-0010(10) ("'Date of Filing' means the date received by the Board. A document received after 5 p.m. is considered to be filed on the following business day."). This means that, in order to be timely filed, any objections needed to be received by this Board by 5 p.m. on April 29, 2021.

Complainant submitted written objections through this Board's electronic case management system (CMS) after 7 p.m. on April 29, 2021.¹ Because this Board received Complainant's objections after 5 p.m., those objections were deemed filed with the Board on April 30, 2021. OAR 115-010-0033(1)(d). Consequently, those objections were untimely. See AFSCME Council 75, Local 2503, v. Hood River County (Public Works), Case No. UP-005-20 (2021) (objections filed after 5 p.m. on last date of 14-day objection period were untimely).Complainant did not request an extension of time in advance of filing objections. Nor did Complainant file a motion requesting leave to file objections after the deadline had passed. Because Complainant's objections were untimely, they will not be considered by this Board. Id. Additionally, when a party files objections to a recommended order, they also must serve the objections on other parties and include a proof of service with the filing. OAR 115-010-0033(2). Here, Complainant did not file a proof of service with the objections, which is another reason that those objections cannot be considered by this Board.

Because Complainant's objections were untimely, and Respondent did not file objections, we treat this matter as if no objections were filed. Id. at 5. When no objections are filed, the Board adopts the attached recommended order as the final order in the matter. OAR 115-010-0090(4).

ORDER

The First Amended Complaint is dismissed.

DATED: May 24, 2021.

/s/_________

Adam L. Rhynard, Chair

/s/_________

Lisa M. Umscheid, Member

/s/_________

Jennifer Sung, Member

This Order may be appealed pursuant to ORS 183.482.

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, pursuantto ORS 243.676(4) and OAR 115-035-0075? For the reasons set forth below, we dismiss the claims against ATU.

RULINGS

The rulings of the ALJ were reviewed and are correct.

FINDINGS OF FACT

The Parties

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.

Complainant's History with ATU

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 2020,² 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, "I Khris [A]lexander am resigning as Powell executive board officer as of May 31^st, 2020. Per The Boards, Motion To Investigate Me Over My Actions Over A Petition." (Exh. R-5.) At 12:12 p.m., Complainant sent another email stating:

"I Have Been Asked By A Few Atu757 Executive Board Officers During This Zoom Meeting Today To Pull Back My Resignation. I Was Asked To Let The Seniority Investigation Go Through And I Have Decided To Stay In My Executive Board Position For Now Pending The Outcome Of The Seniority Investigation. I'm Known For Rash Decisions When I Get Worked Up And This Was One Of Those.

"I Have Asked My Friend To Pull Down The Petition And He Did As A Courtesy For Now Per My Request."

(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.

Opt-Out Request and Replacement on the Executive Board

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...