Amalgamated Transit Union v. Tri-County Metro. Transp. Dist. of Or.

• Decision Date: 26 June 2019
• Docket Number: A166250
• Citation: 298 Or.App. 332,447 P.3d 50
• Parties: AMALGAMATED TRANSIT UNION, DIVISION 757, Respondent, v. TRI-COUNTY METROPOLITAN TRANSPORTATION DISTRICT OF OREGON, Petitioner.
• Court: Oregon Court of Appeals

298 Or.App. 332

447 P.3d 50

AMALGAMATED TRANSIT UNION, DIVISION 757, Respondent,

v.TRI-COUNTY METROPOLITAN TRANSPORTATION DISTRICT OF OREGON, Petitioner.

A166250

Court of Appeals of Oregon.

Argued and submitted January 16, 2019.

June 26, 2019

Nicholas H. Pyle, Portland, argued the cause for petitioner. Also on the briefs were Bruce L. Campbell and Miller Nash Graham & Dunn LLP.

Henry J. Kaplan, Portland, argued the cause and filed the brief for respondent.

Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

SHORR, J.

Tri-County Metropolitan Transportation District of Oregon (TriMet) petitions for judicial review of a final order of the Employment Relations Board (ERB) in favor of Amalgamated Transit Union, Division 757 (ATU). In that order, ERB concluded that TriMet had violated ORS 243.672(1)(g), which establishes that a public employer commits an unfair labor practice if it violates an agreement to arbitrate, when it refused to arbitrate a grievance concerning TriMet’s decision to enter into contracts with nonunion shuttlebus operators. We review ERB’s findings of fact for substantial evidence and its conclusions for legal error. Portland Fire Fighters’ Assn. v. City of Portland , 181 Or. App. 85, 87, 45 P.3d 162 (2002) ; ORS 183.482(8)(a). For the reasons explained below, we conclude that ERB did not err. Accordingly, we affirm.

Petitioner does not contend before us that ERB’s order is unsupported by substantial evidence. Rather, petitioner contends that ERB legally erred in construing the relevant contract. Because ERB’s findings are supported by substantial evidence, we take the following facts from ERB’s order.

TriMet is a public entity that operates public bus and rail services in the Portland metropolitan area. TriMet employees, including its bus operators, are represented by ATU. The relationship between TriMet and ATU is governed by a collective bargaining agreement, known as the Working Wage Agreement (WWA). The WWA establishes TriMet’s obligations to its employees and includes procedures for the filing of grievances by employees or ATU for alleged violations of those obligations.

In 1998, TriMet began to receive and administer Job Access and Rural Commute (JARC) grants that are provided by the Federal Transit Administration (FTA). JARC grants are intended to provide commuting services for people living in urban areas who commute to underserved rural or suburban areas for work. In the circumstances at issue here, the FTA provides the grant money directly to TriMet, and then TriMet oversees and administers a competitive process of awarding the grant money to subrecipients—typically nonprofit organizations—to run shuttlebuses on routes that are not part of TriMet’s "fixed route" services. TriMet enters into contracts with JARC grant subrecipients, under which the subrecipients agree to provide certain services under specified conditions and to allow for oversight and auditing by TriMet. In addition to administering the JARC grants, TriMet is occasionally required to make "in-kind" contributions to JARC-funded projects, which may include but are not limited to contributions directly to JARC grant subrecipients.

Starting in 2014, TriMet contracted with Ride Connection, a nonprofit shuttlebus operator, to run certain bus lines in exchange for JARC grant funds. Ride Connection bus operators are not members of ATU. In 2015, ATU filed the grievance that is the basis for this appeal (the shuttle grievance). The amended shuttle grievance included the allegation that TriMet’s contract with Ride Connection violated Article 2, section 1, paragraph 9 of the WWA—also known as the "lines of the district" provision—which provides that "all vehicles run on the lines of the District shall be run by Operators should they be operated," with limited categorical exceptions. In that context, "operators" refers to ATU members as opposed to nonunion workers such as Ride Connection employees. The grievance form used by ATU described the dispute as follows:

"TriMet has entered into [a] partnership with the Ride Connection to create [a] bus service. These routes [were] funded in partnership with TriMet. These routes should be offered to TriMet ATU operators as described in our working wage agreement."

The grievance requested as relief that TriMet "allow TriMet employees to service and maintain" the JARC bus routes.

ATU requested a hearing under the grievance provision of the WWA, which reads as follows:

"It is hereby agreed that the properly accredited officers of the District shall meet with the properly accredited officers of the Union on all grievances relating to any alleged violation of any provision of this Agreement[.] *** All such grievances when filed by the Union or an employee shall be processed through the procedures set out in Sections 3 and 4 of this article."

Section 3 of the WWA provides a multistep process, ending with binding arbitration, that governs the filing and processing of grievances. At each step prior to arbitration, ATU and TriMet will attempt to resolve the grievance without arbitration, but at no point is TriMet authorized to unilaterally reject a grievance or refuse to proceed to the next step if the parties cannot resolve a grievance.

If the parties cannot resolve a grievance between themselves, binding arbitration is the mandatory final step in the grievance process.

TriMet refused to process the shuttle grievance or participate in arbitration, explaining that the Ride Connection contract did not implicate the WWA because TriMet was merely passing federal JARC grant funds to Ride Connection rather than entering into an employer-employee relationship. In response, ATU filed a claim with ERB alleging that TriMet’s refusal to process the grievance was an unfair labor practice. The complaint was first reviewed by an administrative law judge (ALJ), who issued a recommended order concluding that TriMet’s refusal to arbitrate constituted a violation of ORS 243.672(1)(g), which, as noted, provides that it is an unfair labor practice for a public employer to violate an agreement to arbitrate.¹ TriMet objected to the recommended order. ERB took review and held oral argument. Ultimately, ERB ruled that the ALJ’s recommended rulings were correct and entered a final order to that effect. ERB explained its decision as follows:

"In light of the arbitration clause’s clearly broad scope, and the absence of any applicable exclusion, the [WWA] is unambiguous that grievances alleging violations of the ‘Lines of the District’ provision are arbitrable. Generally, when express contract language is unambiguous, our analysis ends, and we do not review extrinsic evidence to interpret the contract."

Despite that general conclusion, ERB later considered the extrinsic evidence offered by TriMet but concluded that the evidence was relevant only to the meaning and scope of the "lines of the district" provision and not the question of whether the shuttle grievance was arbitrable.

On appeal, TriMet assigns error to ERB’s ruling. The decisive issue is whether the arbitration provision in the WWA compels TriMet to arbitrate the shuttle grievance. As we understand TriMet’s argument on appeal, it acknowledges that, under the grievance provision of the WWA, it has to arbitrate "any alleged violation of any provision" of the WWA. TriMet contends, however, that the alleged violation of the WWA’s "lines of the district provision" in this case is not a dispute that arises under the WWA.

Collective bargaining agreements—like the WWA in this case—"generally are interpreted in the same manner as are other contracts." OUS v. OPEU , 185 Or. App. 506, 512, 60 P.3d 567 (2002). First, the court must examine the text of the disputed provision in the context of the agreement as a whole. Id . (citing Yogman v. Parrott , 325 Or. 358, 361, 937 P.2d 1019 (1997) ). At the first step, the court also may consider evidence of "the circumstances underlying the formation of the contract." Batzer Construction, Inc. v. Boyer , 204 Or. App. 309, 317, 129 P.3d 773, rev. den. , 341 Or. 366, 143 P.3d 239 (2006). If the provision is unambiguous, no further analysis is necessary or appropriate, and the court must "give the appropriate effect to the parties’ intentions." Industra/Matrix Joint Venture v. Pope & Talbot , 341 Or. 321, 332, 142 P.3d 1044 (2006) (citing Yogman , 325 Or. at 361, 937 P.2d 1019 ). A provision is ambiguous only if it is reasonably susceptible to more than one plausible interpretation. Portland Fire Fighters’ Assn. , 181 Or. App. at 91, 45 P.3d 162.

As described, the arbitration provision in the WWA broadly requires TriMet to arbitrate with ATU on "all grievances relating to any alleged violation of any provision of this Agreement." (Emphases added.) The WWA additionally provides that all grievances "shall be processed through the procedures" set out in the WWA that provide guidelines for arbitration if the parties are unable to otherwise resolve a grievance. The WWA does not include language authorizing TriMet to unilaterally refuse arbitration and does not make the right to arbitration contingent on ATU filing a grievance that is certain or even likely to succeed on the merits. To the contrary, the WWA obligates TriMet to arbitrate with ATU over "any alleged violation" of the agreement so long as ATU complies with the requisite procedures set forth in the WWA. (Emphasis added.) In short, the pertinent language in this case is unambiguous; the WWA clearly provides that TriMet will arbitrate all grievances alleging a violation of the WWA that cannot be...